ADMINISTRATIVE LAW Kristina Gallo

Transcription

1 ADMINISTRATIVE LAW Kristina Gall

2 Cntents INTRODUCTION... 4 Intrductin-Curse Overview and Cncepts... 4 Reading Ntes-Intrductin... 6 Baker v Canada The Rule f Law A Cnstitutinal Basis fr Judicial Review [Crevier] Crevier v AG (Qc), [1981] 2 SCR Remedies Harelkin v Univ f Regina (1979) Hwe v Institute f Chartered Accuntants (1994) Hmex Realty v Wyming, Mining Watch, 2010 SCC Scpe f Judicial Review What is Public Enugh? Vlker Stevin NWT ( 92) Ltd v NWT Air Canada v Trnt Prt Authrity PROCEDURAL FAIRNESS: DUTY OF FAIRNESS The Duty f Fairness Cpper v Bard Wrks fr Wandswrth District, Nichlsn v Nrfrk Plice Cmmissiners, Cardinal Knight v Indian Head Schl Divisin, Dunsmuir v New Brunswick, Administrative Tribunal Act, SBC 2004, c 45 (ATA) Threshld Test Inuit Tapirisat (1980, SCC) Curtreille v Canada Canadian Dctrs fr Refugee Care v Canada (AG), (2014, FC) Hmex Realty v Wyming (Village) (1980) Re Abel and Advisry Bard (1979, ONCA) Legitimate Expectatins Reference re Canadian Assistance Plan (BC), Aptex, [2000] 4 FCR 264 (CA) Canada v Mavi, Agraira (2013, SCC)

3 2 Mt Sinai Hspital Center v QC, 2001, SCC PROCEDURAL FAIRNESS: HEARING RIGHTS Intrductin-Cntent f the Duty Particular Hearing Rights Krever Inquiry, 1997 SCC Missin Institutin v Khela (2014, SCC) Canada v Mavi, Masters v Ontari, Khan v Univ f Ontari, 1997 ONCA Innisfil Twnship v Vespra Twnship, 1981 SCC Djakvic v BC (Wrkers Cmp), 2010 BCSC Nfld & Labradr Nurses Unin (2011) Wall v Independent Plicy Review Directr, # Manitba Ltd Lndn Lims v Unicity Taxi Ltd et al., 2012 MBCA Cnstitutinal Surces f Prcedural Rights Singh v Canada (Minister f Emplyment and Immigratin), 1985 SCC Suresh v Canada (Minister f Citizenship and Immigratin), 2002 SCC Charkaui v Canada (Citizenship and Immigratin), 2007 SCC [#1] Charkaui v Canada (Citizenship and Immigratin), 2008 SCC [#2] Canada (Citizenship and Immigratin) v Harkat, 2014 SCC Blence v British Clumbia (Human Rights Cmmissin), 2000 SCC S. 35 prcedural rights the Duty t cnsult and accmmdate (DTC&A) PROCEDURAL FAIRNESS-INDEPENDENCE AND IMPARTIALITY Bias: principles and variatin f the standard in administrative cntexts Pelletier v Canada (AG), 2008 FC Newfundland Telephne C v Newfundland (Bard f Cmmissiners f Public Utilities), 1992 SCC Old Bniface Residents Assn Inc v Winnipeg City, 1990 SCC Save Richmnd Farmland Sciety v Richmnd (Twnship), 1990 SCC Brsseau v Alberta Securities Cmmissin, 1989 SCC Institutinal Independence: adjudicative cntexts [Tribunal Independence] Quebec Inc v Quebec (Regie des permis d lcl), 1996 SCC Ocean Prt Htel Ltd. v BC (General Manager, Liqur Cntrl and Licensing Branch), 2001 SCC Keen v. Canada (Attrney General), 2009 FC Statutry Prvisins Institutinal decisin making

4 3 Internatinal Wdwrkers f American Lcal 2-69 v Cnslidated-Bathurst Packaging ltd., Thamtharem v Canada (Minister f Citizenship and Immigratin), 2007 FC SUBSTANTIVE REVIEW Standard f Review Analysis Dunsmuir v New Brunswick, 2008 SCC Privative Clauses and Statutry Rights f Appeal Canada (Citizenship and Immigratin) v. Khsa 2009 SCC Expertise and Statutry Purpse Pushpanathan v. Canada (Minister f Citizenship and Immigratin), 1998 SCC Bell Canada v Bell Aliant Reginal Cmmunicatins, 2009 SCC The Nature f the Questin Alberta (Infrmatin f Privacy Cmmissiner) v Alberta Teachers Assciatin, 2011 SCC CUPE v NB Liqur Crpratin, 1979 SCC Wrkers Cmpensatin Art (Re) and O Dnnell, 2008 YKCA Edmntn East, 2016 SCC Crrectness Reasnableness Charter Rights and Discretinary Decisins Statutry Standards f Review

5 4 INTRODUCTION Intrductin-Curse Overview and Cncepts Curse Overview 1. Intrductry cncepts, themes 2. Remedies why g t tribunals, why g t curts t try t und what tribunals d, scpe f remedies at curts, and mre abut tribunals 3. Grunds fr judicial review prcedural fairness (and mre abut tribunals, includes sme cnstitutinal issues) 4. Grunds fr judicial review substantive review (includes sme cnstitutinal issues) 5. Tribunal jurisdictin ver cnstitutinal issues Curse Themes LAW-POLICY Which institutins f gvernment are assciated with law? What are the mechanisms f accuntability/cnstraint fr thse institutins? Which institutins f gvernment are assciated with plicy? And what are the mechanisms f accuntability/cnstraint fr thse? And where d administrative agencies fit in? What happens if ur ideas f law and plicy are less separable? Frmalist/traditinal view f the separatin f pwers: Legislatures t decide upn and enunciate plicy Curts t interpret and apply the law Executive t administer and implement that plicy Ocean Prt administrative tribunals span the cnstitutinal divide between the judiciary and the executive but are ultimately part f the executive, under the mandate f the legislature (at para. 32).

6 5 Legislatures t decide upn and enunciate Curts t interpret and apply the law Executive t administer and Independent Administrative Agencies Language Cncepts Ging frward, these wrds and cncepts will be imprtant: Judicial Review Superir Curts (vs Inferir) Inherent jurisdictin (f superir curts p.21) Privative (r preclusive) clauses Legislative messages t the curts t butt ut, t limit their review f decisins that legislatrs have delegated t administrative bdies. Can vary in strength allwing curts t review n sme issues, r attempting t stp curts frm reviewing at all BUT it is nt cnstitutinally permissible t cmpletely blck review by superir curts: Crevier (next week) legislatures cannt ust review by superir curts fr jurisdictin. Jurisdictin A decisin-maker s area f prper authrity r pwer. Mst administrative actrs have their jurisdictin defined by statute. Identifying their area f prper authrity r pwer is therefre a matter f statutry interpretatin. Much f the histry f judicial review (f administrative decisin-makers) is abut curts interpreting the scpe f a given DM s authrity. Prcedural fairness, prcedural review Hw decisins are made Clsely related t natural justice prcedural principles f cmmn law curts (we ll cme back t this Tw main principles: audi alteram partem decisin-makers shuld hear the ther side in a dispute befre deciding nem judex in sua causa n ne shuld be a judge in their wn cause Substantive review Review f the decisin itself (the substance r merits f the decisin) Filtered thrugh standards f review Deference Discretin

7 Reading Ntes-Intrductin The Administrative State: Delivering Public Prgrams There is a range f public prgrams implemented by administrative agencies, the kinds f institutins thrugh which the prgrams are delivered and the tls typically available t enable administratrs t discharge their mandates Much f the subject matter f administrative law is the law gverning the implementatin f public prgrams Particularly at the pint deliver where are the likely t have the mst immediate impact n the rights and lives f individuals Mst f these prgrams are administered under the authrity f statute, enacted by either the parliament f Canada r prvincial legislatures Prgrams riginate in the identificatin f gvernment f a prblem created by r nt adequately addressed by the peratin f the market r private law (ften stemming frm inequalities f pwer) Once the prblem is identified (ften as a result f plitical lbbying and ther frms f public pressure) gvernment may respnd in a way f ways: 1. They may decide t d nthing 2. They can deal with it thrugh existing legal tls and institutins (example: criminal law r taxatin) 3. They can create a new legal framewrk administered by sme agency ther than the curts f law, designated fr specifically fr this purpse This third ptin is the primary realm f administrative law The Subject Matter f Public Administratin Administrative law is a branch f public law It plays a rle in a wide variety f specialized areas, including: Emplyment The emplyment relatins are extensively regulated by statutry prgrams. Fr example: emplyees have a right t be represented by a trade unin f their chice, statues typically prescribe sme basic emplyee entitled that are f particular imprtance t thse wh are nt cvered by a cllective agreement, emplyees and applicants fr emplyment als have a statutry right t nt be discriminated against (based n such grunds as sex, race, natinality, ethnic rigin, clur, religin, sexual rientatin, age r disability) Regulated Industries Rapid industrializatin and urbanizatin f the 19 th century prved the market incapable f ensuring certain public gds, as a result the peratin f sme industries is subject t extensive statutry regulatin. Fr example many utility cmpanies are required t get cnsent befre they increase the tariff they charge t cnsumers, bradcasters are required t ensure an allcatin and use f the airways that serves public interest in develping a natinal cultural identity, t sustain availability the explitatin f natural resurces (renewable and nn-renewable) is als heavily regulated, all frms f cmmercial transprtatin, prductin f fds, the supply f drinking water and the pharmaceutical industry, financial institutins are als subject t statutry cntrls. Ecnmic Activities The state regulates imprtant aspects f ecnmic activity regardless f the industry r business in which is ccurs. Fr example: mergers and takevers f scrutinized fr the pssibility f adverse impacts n cmpetitin. Prfessins and Trades The members f mst prfessins enjy a statutry mnply t render the services assciated with that prfessin (example: Law) r t use a particular prfessinal designatin. Members typically have t satisfy prescribed educatin standards and smetimes gd character requirements, nce granted a license they are subject t discipline by their gverning bdy. Regulatry schemes als apply t trades and vcatins. Scial Cntrl 6

8 Sme public prgrams restrict individual s freedm f mvement (example incarceratin r incarceratin f the mentally ill) Human Rights Public awareness and debate abut scial dimensins f discriminatin had led t the enactment f statutry schemes fr the prtectin f human rights. Unlike the equality rights in the Charter, human rights statutry schemes apply t the activities f private individuals and crpratins as well as gvernment. Incme Supprt The prvisins f incme supprt remain an imprtant aspect f the Canadian state, althugh these prgrams are increasingly questined and reduced. Example: injured wrker s cmpensatin, emplyment linked pensins and emplyment insurance. Public Services Gvernment als delivers r pays fr a range f services. Example: health care, educatin, child welfare, rad cnstructin and maintenance, plice frces, garbage cllectin, public transprtatin. Nearly every public service is delivered under statutry authrity. Institutins f the Administrative State Legislatures The legislature is in principle the leading public frum where the mst imprtant plitical decisins taken in the name f the electrate are explained, debated and ptentially apprved Frm a legal pint f view nearly all public prgrams must riginate with a statute enacted by the prvincial/federal legislature in rder t create new legal rights and duties The legislature will have a rule in the subsequent administratin f a prgram Cabinet and Ministers Typically, the cabinet is made up f varius ministers and is chaired by the prime minister r premier wh assigns ministerial respnsibilities A minister generally has respnsibility fr a department (federal) r ministry (prvincial) that is nrmally established by statute The cabinet r individual ministers may be empwered t supplement a statute with delegated legislatin, they may als exercise discretinary pwers that directly affect the individual (example: under the Immigratin Prtectin Act the minister may allw a persn t enter Canada even if they are nt therwise eligible) The minister within whse mandate the agency perates will nrmally be respnsible fr appinting the members f the agency, they will als reprt t the legislature n the peratin f the prgram and answer questins frm members f the huse By its cntrl f strategic plicies and the allcatin f funds the cabinet may play a decisive rle in determining the shape and scpe f public prgrams Municipalities Municipalities exercise pwer that is delegated t them by the prvincial legislature Many f the prgrams that affect peple are administered at the lcal level f gvernment Crwn Crpratins Sme public services are prvided thrugh crwn crpratins which enjy substantial independence in their day t day peratins The purpse f this independence is t enable them t make cmmercial decisins withut gvernment interference Hwever, thrugh the pwers f purse and ther means, including the appintment f members f the bard the gvernment can exert cnsiderable influence. Examples: CBC, Canada Pst Private Bdies and Public Functins An imprtant array f nminally private bdies are fund in the barderland between gvernment and private sectr 7

9 Sme derive their legal authrity frm cntract, yet by the virtue f the cntrl they exercise ver particular activities and the nature f the functins they perfrm, private bdies may resemble the administrative agencies that therwise discharge gvernmental functins Examples: gverning bdies f may sprts, self gverning teaching and research institutins, universities Independent Administrative Agencies These are the mst distinctive institutins f the administrative state, many emerged after WW2 with the rapid expansin f the respnsibilities assumed by the gvernment. Similarities Between the Different Administrative Agencies The independent agencies that are mst frequently encuntered in administrative law share at least 4 features: 1. They enjy a measure f independence frm the gvernment department with verall respnsibility fr the plicy area in which they perate A few statutes enable the cabinet t influence the making f agency decisins, either by issuing a plicy guideline that the agency must cnsider r n appeal, by reversing, varying, r remitting a decisin f the agency 2. Thse wh are liable t be affected by a decisin are given an pprtunity t participate in the decisin making prcess by prducing evidence and making submissins Administrative hearings may vary greatly 3. Independent agencies typically perate at the sharp end f the administrative prcess (that is the pint when a prgram is applied t the individual) Sme agencies als perate at the level f plicy making and hld hearings t allw thse wh are interested t participate in the frmulatin f plicy, that will guide the agency when deciding individual cases 4. All administrative agencies are specialized They deliver a particular prgram r part f ne, curts f law in cntrast decide cases acrss a much brader spectrum Difference Fund Amng Administrative Agencies It is mre challenging t capture the generic differences amng agencies Decisins made by agencies are fund f a cntinuum; at ne end are agencies that determine individual rights based n past events r facts, a relatively precise statutry standard and a limited degree f discretin that is exercised in the particular circumstances f the case; ther agencies have much larger plicy making mandates and are guided mre by their brader understanding f the public interest than by the impact f the decisin n the individual r small grup f individuals Sme agencies resemble curts in their structure, thers emply a large staff t prvide expert ecnmic financial plicy r legal analysis in plicy develpment Sme agencies have a massive caselad; thers devte mst f their time t ne r tw large decisins They may als vary greatly in the place they ccupy in the verall decisin making prcess Sme nly make recmmendatins t a bdy with final decisin making pwer Sme make the first and final determinatin f individuals legal rights The effect f their decisins f individuals can als be very different, smetimes it can devastate the life f the persn cncerned, thers have a less serius impact Membership f agencies als caries widely, sme serve n a full time basis fr a set term thers nly hear particular disputes Administrative agencies ccupy a unique psitin based n their unique strengths, relative t curts, they have ne fd in the wrld f gvernment and the ther in the wrld f law and judiciary Agencies are part f the gvernment in that they are respnsible fr advancing the public interest by implementing the prgrams they administer Independent Agencies r Gvernment Departments? 8

10 Independent agencies have certain advantages ver gvernment departments as makers f administrative decisins They are insulated frm the day t day pressures f plitics, thus it is easier fr agencies t maintain an pen prcess and develp lng term cnsistent plicies Independent agencies r curts? Wh shuld reslve disputes that arise frm the implementatin f a public prgram? The main reasn fr assigning this rle t an independent agency rather than a curt is: 1. The nature f decisins make by agencies are far mre gvernmental then judicial Smetimes the judicial prcess is just nt apt fr making multifaceted decisins f this kind (aka abut things like qutas t imprt chickens) 2. In sme cases, it may be mre desirable that decisins be made by persns n judges Experience and expertise in areas beynd the law may be requires, as well as an apprach t the issue that is mre sympathetic with the aims f the prgram than that which is ften displayed by judges 3. Many f the disputes invlve relatively small sums, s prcessing them thught the curts wuld be a misallcatin f public resurces 4. A mre infrmal prcess may enable mre expeditius decisins and reduce the need fr legal representatin Administrative Tls Public fficials and institutins typically have available a wide range f tls with which t deliver the public prgram fr which they are respnsible, in cntrast curts f law discharge with mandate slely thrugh the adjudicatin f cases brught befre them Fr many administrative agencies, adjudicatin is an imprtant tl but these functins are nly ne part f its verall mandate Plitical and Administrative Redress f Individual Grievances Law assumes particular imprtance in public administratin when things have gne wrng (at least in the eyes f thse affected by the decisins made in the curse f implementing a public prgram) Lawyers are ften invlved in the design f an institutinal arrangement fr the investigatin and review f administrative actin abut which there is a cmplaint The fcus is thus n the rle f the curts in reviewing administrative agencies and n the remedies that a curt may award when a decisin maker is fund t have acted unlawfully This fcus is imprtant because sme f the mst cmplex aspects f administrative law arise in the narrw cntext f judicial review But the fcus n judicial review can be misleading because mst gvernment decisins are never subject t litigatin Legislative Oversight f the Administrative Prcess Invlvement f the legislatures with public prgrams des nt end with the enactment f the enabling statute, but legislative versight is inadequate fr investigating cmplaints frm the individual abut decisins made in the curse f implementing public prgrams Therefre, every prvinces has an fficer f the legislature called the mbudspersn They are empwered t investigate actin taken in the administratin f a gvernment rganizatin that affects individuals They have the pwer t btain infrmatin in cnnectin with the investigatin, which is cnducted in private T set the investigatin prcess in mtin the cmplainant merely has t file a cmplaint They can cnsider a wide range f pssible errs that might have been cmmitted in the delivery f the public prgram If they cnclude that smething went awry the rganizatin with be asked t prvide a remedy (culd be a simple aplgy r revisin f peratin plicy etc) 9

11 If the recmmendatin is nt acted n they may then reprt the matter t the relevant cmmittee f the legislature Keep in mind that their cnclusins are NOT legally binding, any remedy is ultimately nly enfrceable thrugh plitical pressure and public pinin Administrative Remedies Administrative agencies invariably have internal mechanisms fr dealing with citizens grievances It may simply be a matter f asking the persn wh made the decisin t revisit it r speak with a mre senir member f the agency, r smetimes there are frmal levels f appeal Unlike curts, independent administrative agencies ften have an express statutry pwer t recnsider their decisins If nne f these prvide a satisfactry slutin then the cmplainant may need t cnsider taking the matter t an utside bdy that is independent f the riginal decisins maker, in mre jurisdictin this will be the regular curts Curts and Administrative Agencies Public law litigatin is generally a remedy f last resrt The cst f taking the administratin t curt is high and the prspect f success is lw Principle Ways in Which a Curt May Be Required t Reslve a Dispute (between Individual and administrative institutin) 1. Original Jurisdictin The legislature may nt have established a mechanism specifically fr the purpses f challenging an administrative decisin, in which case a persn may take her claim against the gvernment directly t curt Als persns claiming that a gvernmental bdy has vilated a charter right may seek a remedy directly frm a curt under s 24 f the charter It is als pssible t prceed directly t curt when an administrative actin has infringed the individual s private legal rights by cnstituting a trt, breach f cntract r sme ther wrng fr which an award f damages may be made f specific relief granted 2. Appeals Since the early 1970 s statutry rights f appeal t the curts frm administrative decisins have becme a familiar feature f schemes established t deliver public prgrams Such rights cme in different frm, the mst generus allw an appeal f a questin f law, fact and discretin and authrize the appellate curt t substitute its pinins fr that f the agency; ther may limit the appeal If the curt cncludes that the agency erred, it may refer t matter back t the agency r reverse the decisin and find in favr f the appellant An appellant curt may be prepared t shw deference t the agency s cnclusins, including n questins f law 3. Curts Inherent Judicial Review Jurisdictin In the absence f a statutry right f appeal t the curts the superir curts f the prvinces nevertheless retain a supervisry jurisdictin ver the institutins and fficials that administer ur public prgrams The superir curts inherited this supervisry jurisdictin frm the English ryal curts f justice Since 1970 the federal curt and federal curt f appeal (which are statutry curts rather than supervisry curts with inherent jurisdictin under the cmmn law) have exercised virtually exclusive jurisdictin ver general administrative agencies Judicial Remedies f Administrative Law The curt exercised their supervisry jurisdictin under the cmmn law thrugh remedies that were available nly in respect f public duties and pwers they were knwn as prergative writs Three have been particularly imprtant in the develpment f administrative law: Certirari: used t quash r set aside decisins 10

12 Prhibitin: used t rder a tribunal nt t prceed in a matter Mandamus: Is used t rder the perfrmance f a public duty There is a furth ne (Habeas crpus: issues t determine a persn the legality f a persn s detentin) but this has a specialized nature and stands utside the mainstream administrative law Histrically the three mentined abve were used t ensure that bdies with limited legal pwers did nt exceed thse pwers at the ptential expense f the pwer f central gvernment These prergative pwers are granted at the discretin f the curt Grunds fr Review When the legislature has nt prvided a statutry right f appeal there are fur principal grunds f judicial review in cntemprary law 1. Prcedural Imprpriety Befre taking actin that may adversely impact the interest f individual, administratrs generally have a legal duty t act in a way that is prcedurally fair This typically requires them t give prir ntice and a reasnable pprtunity t respnd t thse likely effected Impartiality in the decisin maker is als an attribute f prcedural fairness Much f the law defining administrative actin that is subject4ed t the duty t be fair and the precise cntent f that duty has been develped by judges as a matter f cmmn law Legislatures may als prescribe the prcedures t be fllwed by a particular agency, r grups f agencies in making decisins An agency that indicates that it des nt intend t cmply with the duty f fairness r f the statutry required prcedure may be prhibited frm prceedings t a decisin r be rder t prceed accrding t the prper prcedure (cmmnly an applicant will ask the curt t quash a decisin that was made in breach f a prcedural duty) 2. Illegality Administrative actin that has nt legal validity is nt authrized by law 3. Unreasnableness Administratrs als have a duty nt t exercise their pwers unreasnably This duty has emerged rather recently as a general principle f judicial review There must be sme evidence t supprt a material finding f fact n which an agency basis its decisin An administrative agencies interpretatin f ambiguus language in its enabling legislatin must be reasnable Lack f reasnableness is grunds f review f the exercise f many discretinary pwers cnferred n public authrities When administrative actin infringes a charter right it may be justified under sectin 1 as a reasnable limit prescribed by law 4. Uncnstitutinality The cnstitutin is an imprtant element f the legal framewrk within which administrative agencies deliver public prgrams Relatinship Between Administrative Law and Cnstitutinal Law Regardless f whether it is authrized by statute, administrative law actin may always be impugned in curt n the grund that is breaches a prvisin f the cnstitutin (an administrative agency cannt d what a legislature lacks the cnstitutinal cmpetency t authrize) Bth cnstitutinal and administrative law are branches f public law and their cncerns verlap 11

13 Administrative Tribunals and the Curts: An Evlutinary Relatinship SCC Beverley McLachlin hw t maintain the rule f law when mst legal decisins are nt made by legislatures, the executive r the curts the traditinal branches f gvernance but by a hst f administrative tribunals exercising delegated executive pwer. The rule f law requires that all fficial pwer be exercised within the framewrk f the law fairly, reasnably and in accrdance with the pwers duly cnferred n the bdy exercising them. The challenge is ensuring this in the mdern regulatry state. The Backdrp: Transitin frm the Traditinal Mdel t the Mdern Regulatry State On the traditinal mdel f gvernance, Parliament and the legislatures pass laws. The executive implements and enfrces these laws. The curts, fr their part, interpret and apply the laws Parliament and the legislatures passed in the curse f adjudicating a particular dispute Under this traditinal mdel, the executive played a relatively mdest rle. Its functins were exercised by Ministers and their immediate delegates. In this new mdel, which began t emerge ver a century ag, the legislatures did nt cntent themselves with passing laws that tld peple what they must d r nt d. Instead, gvernments began setting up administrative framewrks designed t gvern a particular area f human activity. The result was the birth f the mdern regulatry state. typical administrative scheme, as it came t be called, set ut the legislature's basic bjects and prvisins in a general statute. But unlike the traditinal mdel, mst f the heavy lifting was nw dne by regulatins, adpted by the executive branch f gvernment under rders-incuncil. inevitably, always, there was a tribunal a bdy f peple appinted by the gvernment n a permanent, semi-permanent r ad hc basis t decide issues arising under the scheme between citizens and the state, and smetimes between citizens and citizens. The result was a dramatic shift in wh did sciety's judging. Legislatures culd nt remve the cnstitutinal pwer f the curts. But they prved that they culd shift much f their wrk t administrative tribunals The mve t administrative gvernance in a hst f areas gained mmentum in the last half f the 20th century. Nw, in the beginning f the 21st century, literally thusands f administrative systems ccupy the legal landscape. Tribunals prvide specialized and technical reslutins in different situatins, ensure greater innvatin, flexibility and efficiency in the delivery f gvernmental prgrams and strategies, and prvide an infrmal and rapid frum fr public hearings, thereby minimizing time and csts related t litigatin befre rdinary curts Yet the rise f administrative tribunals psed a prblem. Hw culd we have all the benefits f tribunal justice, and still maintain the rule f law? curts tk n the task f ensuring that administrative tribunals remain true t their fundamental mandates, bth prcedurally and substantively The curts in the first half f the 20th century develped tw mdes f cntrl t ensure the rule f law was preserved. They enunciated principles f natural justice t assure prcedural fairness: the right t ntice, the right t be heard, the right t a cherent prcedure and a reasned decisin. These were the guarantees f the rule f law frm a prcedural perspective. And n the substantive side, they mved t ensure that administrative tribunals exercised their pwers as the legislature intended r was presumed t have intended. The legislature culd nt have intended the tribunal t make arbitrary r wrng decisins, the curts reasned. Therefre, curts were empwered, indeed bliged, t set such decisins aside.- This is the Backdrp f the 4 perids f administrative law in Canada The First Perid: Cnfrntatin The perid between 1950 and 1975 was characterized by a perid f cnfrntatin Curts intervened repeatedly and rutinely in tribunal decisins using a sweeping and fluid definitin f jurisdictinal errr The gal was t ensure that administrative tribunals perated within the principles that define the rule f law. Nt arbitrarily. Nt capriciusly. Nt unreasnably. Fairly and in accrdance with the law. 12

14 But sme felt the curts were ging t far. Legislatures respnded t judicial interventin by telling the curts t mind their wn business and leave tribunal decisins alne. They tk t rutinely inserting privative clauses in administrative statutes. Decisins were declared t be "final" and "nt subject t review". Legal battles raged ver what cnstituted a questin f jurisdictin and what the curts culd nt tuch The Secnd Perid: Cntextual Deference Starting in the late '70s, a new, less cnfrntatinal apprach began t emerge. The decisins f the Supreme Curt began t acknwledge that administrative tribunals were ding imprtant plicy and adjudicatin wrk wrk that an verly expansive apprach t judicial review culd frustrate. Justice Dicksn, as he then was, held that curts shuld defer t what administrative tribunals think is reasnable within their wn cntext and special expertise, even if this included statutry interpretatin. The adptin f a "reasnableness" test marked an imprtant shift away frm the earlier view that tribunals shuld be subject t the same standard f review as curts. In effect, the Curt recgnized that deference may further the gals and purpses underlying the legislature's decisin t delegate ultimate respnsibility t an administrative agency rather than t the curts Deference in cntext and within the rule f law this, bradly speaking, was the picture frm the late '70s t the late '90s. Principled, yes. Nuanced, yes. But, as it turned ut, difficult t apply. The Third Perid: The Search fr Standards f Review Beginning in the late '90s the Supreme Curt in a series f cases struggled with hw t achieve deference within the rule f law In cases such as Pezim, the Curt spke f a "spectrum f deference" depending n varius factrs. All very cntextual. All very lse. And, said the critics, all highly uncertain. Eventually, in the 1997 case f Sutham, the Curt came t recgnize three standards f review crrectness, reasnableness and patent unreasnableness: in rdinary language, strict, deferential and very deferential In 2008, after a decade f struggle t find the right frmulatin, the Curt sught t simplify and cnslidate in Dunsmuir. The Furth Perid: Cnslidatin and Settling Dwn 2008 t Nw We may nw be entering a perid f relative calm in administrative review There is general acceptance n the part f legislatures and tribunals f the imprtance f judicial review by the curts t ensure that administrative tribunals perate in a way that is prcedurally fair and substantively apprpriate We have nt reslved all the prblems. But we understand better hw t g abut reslving them. We understand better than we nce did that what matters is fundamental fairness, and that what is fundamentally fair depends prfundly n the particular mandate and cntext f the tribunal in questin. We understand better that the rule f law des nt always call fr ne right answer in every case, but rather that fr many decisins there is a range f reasnable alternatives. And mst imprtantly, we understand that bth tribunals and curts are essential t maintaining the rule f law in ur cmplex, rapidly changing wrld Baker v Canada 1. Hw wuld yu characterize the legal authrity that was exercised? What was invlved in the Officer making his decisin? 2. What were the factrs relied n by Officer Lrenz in his recmmendatin? Where d they cme frm? 3. Were there any factrs set ut in law r plicy that prvided directin t the decisin-maker regarding what H&C meant/hw H&C decisins shuld be exercised? Are these factrs legal d they bind the decisin-maker? 4. Was the case decided n a prcedural r substantive grund? 5. Was there a privative clause? Des this/hw des this factr int the decisin? 6. What des deference mean and why is this cncept imprtant in the decisin? 13

15 7. What did the curt decide t d abut that decisin (remedy)? 8. What d yu think f L Heureux-Dubé s reliance n Officer Lrenz ntes as the reasns fr the decisin (at para 44)? Hw might this decisin impact the practices in the ministry f immigratin? Baker Stands fr (A LOT) Established the spectrum apprach t the cntent f the duty f fairness Established a duty t give reasns (where required) in administrative cntexts Established that substantive review f discretinary decisins are t be reviewed by the same methdlgy as ther types f decisins (then, pragmatic & functinal analysis; nw, the standard f review analysis) Established that internatinal human rights nrms (frm the Cnventin) may apply as values withut the implementatin f thse nrms thrugh statute Marked a key mment in the mve away frm frmalist appraches t administrative law and brught tgether develpments int a mre cherent, deferential apprach. A mre demcratic apprach (Dyzenhaus). Opened the dr t review fr fundamental values : L Heureux-Dubé: discretin must be exercised in accrdance with the bundaries impsed in the statute, the principles f the rule f law, the principles f administrative law, the fundamental values f Canadian sciety, and the principles f the Charter. (para. 56) What ther ways/what ther grunds f review might have been cnsidered in the case that wuld have addressed these fundamental values mre directly, as law? 14 I. Prcedural Review-In BAKER 1) Was there a duty f fairness wed t Mavis Baker in deciding her H & C applicatin? Surces f the duty? 2) If s, was the duty met? a) What pprtunities t participate were wed t Baker? Prelim (questin f pure law): Hw is the cntent f the duty f fairness determined? i) Was the Cnventin a surce f legitimate expectatins that gave rise t particular prcedural rights? ii) Was an ral hearing required?

16 15 iii) Was ntice t the children required? iv) Was there an bligatin t prvide reasns fr the decisin? b) Did the decisin-maker s ntes (the reasns) give rise t a reasnable apprehensin f bias? II. Substantive Review-in BAKER 1. Shuld the discretinary decisin f Officer Caden be upheld? Prelim (questin f pure law): Hw shuld discretinary decisins be reviewed? a) (Having decided that the pragmatic & functinal apprach applies t discretinary decisins) What standard f review applies t the review f Caden s decisin? b) Des the decisin meet that standard? i) What rules r principles r values apply t guide r cnstrain the discretinary decisin? Des the Cnventin apply? III. Remedy-in BAKER 1. What is the apprpriate remedy (fr the breach f prcedural fairness that was fund)? What Baker did nt Address The Charter. What Charter rights might have been triggered by the H & C decisin? Des it seem apprpriate fr the Curt t ignre the implicated Charter rights in favur f review under administrative law principles? (see para 11) Baker v Canada (Minister f Citizenship and Immigratin) SCC 1999 Intrductin Decisin written by L heureux-dube (with 4 judges cncurring, and 1 judge dissenting in part) Regulatins made pursuant t s 114(2) f the Immigratin Act empwer the minister t facilitate the admissin t Canada f persns where the minister is satisfied that wning t humanitarian and cmpassinate reasns the persn shuld be exempt frm regulatin made under the act This appeal is abut the apprach t be taken by a curt t judicial review these decisins, bth n prcedural and substantive grunds Facts Mavis Baker is a citizen f Jamaica and entered Canada as a visitr in 1981, and has remained there since She never received permanent resident status and supprted herself illegally as a live in dmestic wrker fr 11 years She had 4 children while in Canada (wh are all Canadian Citizens She was rder t be deprted in 1992, she applied fr exemptin frm the requirement t apply fr a permanent residence utside f Canada based upn humanitarian and cmpassinate cnsideratins pursuant t s 114(2) f the Immigratin Act She prvided dcumentatin in her applicatin which indicated that she was experiencing psychiatric prblems but making prgress (yet als nted she might becme ill again if returned t Jamaica), dcumentatin als indicated she was the sle caregiver fr tw f her children A decisin came in 1994 signed by immigratin fficer Caden stating that there were insufficient humanitarian and cmpassin grunds t warrant prcessing her applicatin fr permanent residence (the letter cntained n reasns, but cunsel requested sme and was prvided with ntes made by immigratin fficer Lrenz) Lrenz ntes were fairly harsh (said she was a paranid schizphrenic n welfare, that she had 4 children in Jamaica and 4 mre in Canada and that she wuld be a drain n the welfare system) Relevant Statutry Prvisins

17 Sectin 82.1(1) f the Immigratin Act: An applicatin fr judicial review under the Federal Curt Act with respect t any decisin made, r any matter arising, under this Act r t the rules r regulatin thereunder may be cmmences nly with leave f a judge f the Federal Curt-Trial Divisin. Sectin 83(1) f the Immigratin Act-A judgement f the Federal Curt may be appealed t the Federal Curt f Appeal nly if the Federal Curt-Trial Divisin has at the time f rendering judgment certified that a serius questin f general imprtant is invlved and has stated that questin Sectin 114(2) f the Immigratin Act-the Gvernr in Cuncil may, by regulatin, authrize the minister t exempt any persn frm any regulatin made under subsectin (1) r therwise facilitate that admissin f nay persn where the minister is satisfied that the persn shuld be exempted fr that regulatin r that the persns admissin shuld be facilitated wing t the existence f cmpassinate r humanitarian cnsideratins 2.1 Amended said that the Minister is herby Authrized t d all f the abve Cnventin n the Rights f the Child-Several Articles are listed (pg 34) but the basic jist in that the interest f a child must be f primary cnsideratin, and that a child shuld nt be separated f their parents, and that children shuld be given an pprtunity t be heard in and judicial r administrative prceedings Previus Judgements Federal Curt-Trial Divisin (1995) The judge gave ral reasns dismissing the appellants judicial review applicatin She held that since there were n reasns given by fficer Caden fr his decisin and n reasns were required she wuld assume in the absence f evidence t the cntrary that he acted in gd faith and made the decisin based n crrect principles She rejected that Lrenze ntes were nt supprted by evidence, since it wuld be reasnable t cnclude that she wuld nt be able t return t wrk Als she nted that the views in the ntes were nt imprtant because they were nt thse f the decisin maker (Caden) She rejected the argument that the Cnventin f Rights f a Child mandated that he appellants interested be given pririty in sectin 114(2) decisins because it did nt apply t this situatin and was nt part f dmestic law Federal Curt f Appeal (1997) The judges held that pursuant t sectin 83(1) f the Immigratin Act the appeal was limited t the questin certified by the Federal Curt-Trial Divisin judge They als rejected a request t challenge the cnstitutinal validity f sectin 83(1) The treaty des nt have affect n Canada unless implemented thrugh dmestic law (which it had nt been adpted by either the prvincial r federal gvernment thrugh legislatin) They held that the dctrine did nt create substantive rights, and a requirement that the best interest f a child be given primacy by a decisin maker wuld be substantive right, thus the dctrine des nt apply Issues 1. What is the legal effect f a stated questin under s 83(1) f the Immigratin Act n the scpe f the appellate review? 2. Were the principles f prcedural fairness vilated in this case? a. Where the participatry rights accrded cnsistent with the duty f prcedural fairness? b. Did the failure f Officer Caden t prvide his wn reasns vilate the principles f prcedural fairness? c. Was there a reasnable apprehensin f bias in the making f the decisin? 3. Was the discretin imprperly exercised because f the apprach taken t the interests f Ms. Bakers children? *Charter issues were dismissed because the curt decided that issues raised culd be reslved under the principles f administrative law and statutry interpretatin. Analysis Stated Questins under Sectin 83(1) f the Immigratin Act 16

18 In Pushpanathan v Canada the SCC held that s 83(1) des nt require the Curt f Appeal address nly the stated questin and issues related t it: the certificatin f a questin f general imprtance is the trigger by which an appeal is justified. The bject f the appeal is the still the judgment itself, nt merely the cerified questin. In Ramutar v Canada it was nted that nce a questin has been certified, all aspects f the appeal may be cnsidered by the Curt f Appeal, within its jurisdictin, The SCC agreed with this The wrding f sectin 83(1) suggests that if a questin f general imprtance has been certified this allws fr an appeal frm the judgment f the Trial Divisin which wuld therwise nt be permitted, BUT des nt cnfine the Curt f Appeal r this curt t answering the stated questin r issues directly related t it Therefr ALL issues raised by the appeal may therefre be cnsidered here The Statutry Scheme and Nature f the Decisin Befre examining the varius grunds fr judicial review the Curt take time t discuses the nature f the decisin made under sectin 114(2), the rle f this decisin in the statutry scheme and the guidelines given by the Minister t immigratin fficers in relatin t it Sectin 114(2) authrizes the Minister t exempt a persn frm regulatins made under this Act r t facilitate the admissin t Canada f any persn (the minister pwer t grant an exemptin is based n H & C cnsideratins) Applicatin fr permanent residence must generally be made frm utside f Canada (sectin 9(1))- ne exceptin t this is when admissin is facilitated based n HC cnsideratins In law HC decisins are nes that prvide fr an exemptin frm regulatins made under the act, but in practice it is ne that determine whether a persn wh has been in Canada but des nt have status can stay in the cuntry r will be required t leave a place they have becme established Immigratin fficer wh made HC decisins are prvided wit a set f guideline, these are instructins that tell them hw t exercise their discretin that has been delegated t them Sme Guidelines: Officers have a duty t decide which cases shuld be give a favrable recmmendatin by carefully cnsidering all aspects f the case, using their best judgement and asking themselves what a reasnable persn wuld d in such a situatin They shuld attempt t clarity any HC grunds and public plicy cnsideratins even if these were nt articulated well by the persn There are tw different types f criteria that may lead t a psitive 114(2) decisin- public plicy (which shuld be cnsidered first), then if these d nt exist them the fficer shuld cnsider if HC cnsideratins exists HC grunds will exist if unusual, underserved r disprprtinate hardship wuld be caused t the persn seeking cnsidering if they are asked t leave Canada Prcedural Fairness The appellant argues that the decisin made by Caden was nt in accrdance with prcedural fairness because: there was n ral interview, ntice t her children and the ther parent, and that she was nt given reasns by the decisin maker [She suggests that in cases such as this where a parent has Canadian children these things shuld be met] Bth parties agreed that prcedural fairness applied t HC decisin (the fact that a decisin is administrative and affects the rights and privileges r interest f an individual is sufficient t trigger the applicatin f the duty f fairness) The existence f this duty des nt determine what requirements will be applicable in a give set f circumstances, the cncept f prcedural fairness is variable and its cntent is t be decided in the specific cntext f each case All f the circumstances must be cnsidered in rder t determine the cntent f the duty f prcedural fairness Factrs Affecting the Cntent f the Duty f Fairness NOTE underlying all the factrs is the ntin that the purpse f the participatry rights cntained within the duty f prcedural fairness is t ensure that administrative decisins are being made using fair and pen prcedure, apprpriate t the decisin being made and its statutry, institutinal and scial 17

19 cntext with the pprtunity fr thse affected by the decisin t put frward their views and evidence and have it cnsidered by the decisin maker. The list belw is NOT exhaustive 1. The nature f the decisin being made and the prcess that fllwed in making it The mre the prcess if prvided fr, the functin f the tribunal, the nature f the decisin making bdy and the determinatin that must be made t reach a decisin resemble judicial decisin making the mre likely it is that prcedural prtectins clser t the trial mdel will be required by the duty t fairness 2. The nature f the statutry scheme and the terms f the statute pursuant t which the bdy perates Greater prcedural prtectins will be required when eh appeal prcedure has been prvided within the statute, r when the decisin is determinatin f the issue and further request cannt be submitted 3. The imprtance f the decisin t the individual and individuals affected The mre imprtant the decisin is t the lives f thse affected and the greater impact n the persn r thse persns the mre stringent the prcedural prtectins will be 4. The legitimate expectatins f the persn challenging the decisin If legitimate expectatins are fund t exist this will affect the cntent f the duty wed t the individuals affected by the decisin; if the claimant has a legislatin expectatin that certain prcedure will be fllwed this prcedure will be required If a claimant has a legitimate expectatin that certain results will be reached in their case, fairness may require mre extensive prcedural rights than wuld therwise be accrded BUT the dctrine f legitimate expectatins cannt lead t substantive rights utside f the prcedural dmain 5. The chices f prcedure made by the agency itself, particularly when the statute leave the decisin maker the ability t chse its wner prcedures r when the agency has an expertise in determining what prcedures are apprpriate (this is nt determinative but weight must be given t the chice f the prcedures made by the agency itself and its institutinal cnstraints) Applicatin f the Principles/Factrs Legitimate Expectatins Appellant argued that the article f the Cnventin and the fact that Canada has ratified it establish legitimate expectatin the SCC des nt agree The cnventin is nt equivalent f a gvernment representatin abut hw HC applicatin will be decided Thus this factr will nt affect the cntent f this duty Participatry Rights [AKA factrs 1,2, 3 and 5 frm abve) Aka- was the failure t have a ral hearing and give ntice t Baker r her children incnsistent with the participatry rights required by the duty f fairness Main cnsideratin: cnsidering all the circumstances, did thse wh interests were affected have meaningful pprtunity t present their case fully and fairly? Several Factrs enter int this determinatin First, HC decisins are very different than judicial decisins, since it invlves a cnsiderable amunt f discretin and requires the cnsideratin f multiple factrs Secnd the rle is als, within the statutry, as an exceptin t the general principles f Canadian Immigratin law *Bth f the abve factrs militate in favr f a mre relaxed requirement under the duty t fairness BUT-there is n appeal prcedure, althugh judicial review may be applied fr cnsidering that this decisin is exceptinally imprtant t the lives f thse it affects this leads t the cnclusin that the duty f fairness shuld be mre extensive 18

20 19 Lking at the 5 th factr, the statute accrds cnsiderable flexibility t the Minister t decide n the prper prcedure and immigratin fficers, as a matter f practice they d nt cnduct interviews in all cases Therefre, sme factrs suggest stricter requirements under the duty f fairness, thers suggest mre relaxed nes Balancing the Factrs SCC says the circumstances require a full and fair cnsideratin f the issues and the claimant and thers whse imprtant interests are affected by the decisin in a fundamental way must have a meaningful pprtunity t present the varius types f evidence An ral hearing is nt a general requirement fr HC decisins in this case the appellant had the pprtunity t put frward in written frm infrmatin abut her situatin, her children and their emtinal dependence n her, dcumental frm a scial wrker and psychiatrist. These dcuments were befre the decisin makers and they cntained the infrmatin relevant t making this decisin The lack f an ral hearing did NOT cnstitute a vilatin f the requirements f prcedural fairness t which she was entitled t She had an pprtunity t prduce full cmplete written dcumentatin in relatin t all aspects n her applicatin, this satisfied her participatry rights. The Prvisin f Reasns The appellant submits that the duty f fairness in these circumstances requires that reasns be given by the decisin maker The Federal Curt f Appeal held that these reasns are unnecessary, it has als been held that case ntes held by a subrdinate fficer are nt t be cnsidered the decisin maker s reasns Generally, at cmmn law the psitin has been that the duty f fairness des nt require as a general rule that reasns be prvided fr administrative decisins But These reasns can be very useful! Ensures fair and transparent decisin making Fsters better decisin making by ensuring that reasns are well articulated and mre carefully thught thrugh The prcess itself f writing a decisin may lead t better results They are valuable t decisins that are being appealed Thse affected are mre likely t feel that they were treated fairly Pssible Cncern ver Requiring Written Decisins May lead t an inapprpriate burden n administrative decisin makers This leads t increased cst and delay SCC says that these cncerns can be accmmdated by ensuring that the reasns requirement leaves rm fr flexibility In Canada cme curts have impsed a duty t give reasns, thers have nt SCC it is apprpriate t recgnize that in certain circumstances the duty f fairness will require written explanatins fr a decisin There are strng arguments in favr f this, especially in cases such as this where the decisin has imprtant significance t an individual, where there is a statutry right f appeal, r in ther circumstances where reasns shuld be required These circumstances cnstitute ne f the situatins where they shuld be required BUT in this case this duty was fulfilled since the appellant was given the fficers ntes (this supprts t ntin that this requirement is flexible and must be in line with the day t day realities f administrative agencies) Reasnable Apprehensin f Bias

21 Prcedural fairness als requires that decisins be made free frm a reasnable apprehensin f bias by an impartial decisin maker Respndent argues that Lrenz s ntes cannt be cnsidered as giving rise t bias because he was nt the decisin maker, Caden was The duty t act fairly and in manner that des nt give rise t a reasnable apprehensin f bias applied t all immigratin fficers wh play a significant rle in making decisins, whether they are subrdinate reviewing fficers r thse wh make the final decisin Test fr Reasnable Apprehensin f Bias [Cmmittee fr Justice and liberty v Natinal Energy Bard] the apprehensin f bias must be reasnable ne, held by a reasnable and rights minder persns, applying themselves t the questins and btaining theren the required infrmatin. That test is wuld an infrmed persn viewing the matter realistically and practically-and having thught the matter thrugh-cnclude. Wuld be think it mre likely than nt that the decisin maker, whether cnsciusly r uncnsciusly wuld nt decide fairly. SCC-the well infrmed member f the cmmunity wuld perceive bias in the fficers cmments (he was making links between her mental illness and having several children t her being n welfare fr the rest f her life) Whether intended in this manner r nt, the statement gave the impressin that he may have been drawing cnclusins based nt n evidence but n the fact she was a single mther with several children and histry f mental illness The reasnably well infrmed persn f the cmmunity wuld nt cnclude that he apprached this case with impartiality apprpriate t a decisin made by an immigratin fficer Review f the Exercise f the Minister Discretin Althugh the finding f reasnable apprehensin f bias is sufficient t dispse f this appeal, it des nt address the issues cntained in the serius questin f general imprtance which was certified by the Federal Curt- Trial Divisin judge relating t the apprach t be taken t childrens interests when reviewing the exercise f discretin cnferred by an act r regulatin Thus the SCC decided t cnsider whether as a substantive matter the HC decisin was imprperly made in this decisin Apprach t Review f Discretinary Decisin Making The legislatin and regulatins delegate cnsiderable discretin t the minister in deciding whether an exemptin shuld be granted The language signals an intentin t leave cnsiderable chice t the minister n the questin f whether t grant an HC applicatin The cncept f discretin refers t decisins where the law des nt dictate a specific utcme, r where the decisin maker is given a chice ptins within a statutrily impsed set f bundaries Administrative law has traditinally apprach the review f decisins classified as discretinary separately frm thse seen as invlving the interpretatinal f rules f law The rule has been that decisin classified as discretinary may nly be reviewed n limited grunds such as bad faith r decisins makers, exercise f discretin fr an imprper purpse and use f irrelevant cnsideratins A general dctrine f unreasnableness has als been applied t discretinary decisins SCC-these dctrines incrprate tw central ideas that discretinary decisins, like all ther administrative decisins must be made within the bunds f the jurisdictin cnferred by statute, but that cnsiderable deference will be given t decisin makers by curts in reviewing the exercise f that discretin and determining the scpe f the decisin maker s jurisdictin It wuld be inaccurate t speak f rigid dichtmy f discretinary and nn-discretinary decisins mst administrative decisins invlve the exercise f implicit discretin in relatin t may aspects f decisin making 20

22 The pragmatic and functinal apprach recgnizes that standards f review fr errrs f law are apprpriate seen as a spectrum, with certain decisins being entitled t mre than deference and ther entitled t less Three standards f review have been defined: patent unreasnableness, reasnableness (simpliciter) and crrectness SCC-the standard f review f the substantive aspects f discretinary decisins is best apprach within this framewrk This apprach takes int accunt cnsideratins such as the expertise f the tribunal, nature f the decisins being made, and the language f the prvisins and surrunding legislatin, whether a decisin maker is plycentric and the intentin revealed by the statutry language, the amunt f chice left by parliament t the administrative decisin maker and the nature f the decisins being made Incrprating judicial review f decisins that invlve cnsiderable discretin int the pragmatic and functinal analysis fr errrs f law shuld nt be seen as reducing the level f deference given t decisins f a highly discretinary nature The pragmatic and functinal apprach can taking int accunt the fact that the mre discretin that is left t a decisin maker the mre reluctant curts shuld be t interfere with the manner in which decisin makers have made chices Hwever, thugh discretinary decisins will generally be given cnsiderable respect that discretin must be exercised in accrdance with the bundaries impsed by statute, the principles f the rule f law and principles f administrative law, the fundamental values f Canadian sciety and the principles f the charter The Standard f Review in this Case [Pushpanathan Factrs] The first factr t be examined is the presence r absence f a privative clause and, in apprpriate cases the wrding f that clause There is n privative clause in the Immigratin Act, althugh judicial review cannt be cmmenced withut leave t the federal curt an sectin 83(1) requires the certificatin f a serius questin f general imprtance by the Federal Curt Trial divisin befre it may be appealed The existence f this prvisin (sectin 83(1)) means that there shuld be a lwer level f deference n issues related t the certified questin itself The Secnd factr is the expertise f the decisin maker (here the minister f Citizenship and Immigratin r their delegate) The minister has sme expertise relative t curts in immigratin matters, particularly t when exemptins shuld be given frm the nrmal requirements Third factr is the purpse f the prvisin in particular and the act as a whle The decisin invlves a lt f chice n the part f the minister in determining what HC cnsideratins warrant an exemptin; it als invlves applying relatively pen textured legal principles mitigating in favr f deference The purpse is t exempt applicants in certain circumstances this signals that greater deference shuld be given This decisin related directly t the rights and interest f an individual in relatin t the gvernment (rather then balancing the interests f varius cnstituencies r mediating between them) bdes in favr f a stricter standard Furth Factr cnsiders the nature f the prblem in questin, especially whether it relates t the determinatin f law r facts Given the highly discretinary and fact based nature f this decisin, this is a factr mitigating in favr f deference These factrs must be balanced t arrive at the apprpriate standard f review. SCC-cnsiderable deference shuld be accrded t the immigratin fficers exerting their pwer cnferred by legislatin given the fact specific nature f the inquiry, its rle within the statutry 21

23 scheme as an exceptin, the fact that the decisin maker is a minister, and the cnsiderable discretin evidences by the statutry language YET the absence f a privative clause, the explicit cntemplatin f judicial review by the federal curt trial divisin and federal curt f appeal in certain circumstances and the individual rather than plycentric nature f the decisin als suggest that the standard shuld nt be as deference as patent unreasnableness: The apprpriate standard f review=reasnableness simpliciter Was the Decisin Unreasnable? An unreasnable decisin is ne that in the main is nt supprted by any reasns that can stand up t a smewhat prbing examinatin yu must lk t see whether any reasns supprt it, the defect is there is ne culd presumably be in the evidentiary fundatin itself r in the lgical prcess by which cnclusin are sught t be drawn frm it [Sutham] The apprach taken t the children s interest shws that this decisin was unreasnable in the sense cntemplated in Sutham the fficer was cmpletely dismissive f the interest f the children The reasns f the immigratin fficer shw that his decisin was incnstant with the values underlying the grant f discretin they therefre cannt stand up the smewhat prbing examinatin required by the standard f reasnableness Determining whether the apprach taken by the immigratin fficer was intin the bundaries set ut by the wrds f the statute and the value f administrative law requires a cntextual apprach, as is taken in statutry interpretatin generally A reasnable exercise f pwer cnferred by the sectin requires clse attentin t the interests and needs f the children-childrens rights and attentin t there interest are central t HC values in Canada The bjectives f the Act High value n keeping citizens and permanent residents tgether with their clse relatives wh are already in Canada Internatinal Law Anther indicatin f the imprtance f the interests f the children when making HC decisins is the ratificatin f the Cnventin Its prvisin have n direct applicatin within Canadian law, but the values reflected in internatinal human rights law infrm the cntextual apprach t statutry interpretatin and judicial review The values and principles f the cnventin recgnize the imprtance f being attentive t the rights and best interest f the children when decisins are made that relate t and affect their future The Ministerial Guidelines The guidelines issues by the Minister t immigratin fficers recgnize and reflect the values and apprach discussed abve and articulated in the cnventin They are expected t make the decisin that a reasnable persn wuld make, with special cnsideratin t humanitarian values (such as keeping cnnectins between family members and aviding hardship by sending peple t places where they l lnger have cnnectins) It is emphasized that the decisin maker shuld be alert t pssible humanitarian grunds, shuld cnsider the hardship that a negative decisin wuld impse upn the claimant r clse family members, and shuld cnsider the cnnectins between family members These guidelines are a useful indicatr f what cnstitutes a reasnable interpretatin f pwer cnferred by the sectin, and the fact that this decisin was cntrary t their directive is f great helped in assessing whether the decisin was an unreasnable exercise f HC pwer The factrs already mentined emphasize the rights and interest and needs t children Because the reasns fr this decisin did nt indicate that they were alive t the interest f the children it was an unreasnable exercise f pwer and must therefre be verturned 22

24 In additin the reasns fr the decisin failed t give sufficient weight r cnsideratin t the hardship that a return t Jamaica might cause her, given the fact she has been here fr 12 years and was ill While deference shuld be given t fficers n sectin 114(2), decisin cannt stand when the manner f the decisins was made and the apprach was in cnflict with HC values This des nt mean the children s interest always utweigh ther cnsideratins but if they are minimalized in a manner incnsistent with HC traditin and the ministers guidelines than the decisin will be unreasnable Cnclusin and Dispsitin Because there have been bth a vilatin f the principles f prcedural fairness wing t a reasnable apprehensin f bias and because the exercise f HC discretin was unreasnable the appeal is allwed The matter will be returned t the minister fr redeterminatin by a different immigratin fficer Dissent (In Part)-Cry J He disagrees with the effect f internatinal law n the exercise f ministerial discretin pursuant t sectin 114(2) 23

25 24 The Rule f Law Rule f Law Principle f legality Fundamental justice Separatin f pwers Respnsible gvernment Hnur f the Crwn Judicial independence Access t justice Others. A Prgressin f Thinking DICEY =Frmalism, cmmn law hstility t plicy/discretin law as very different and distinct frm plitics. Law as restraint. Willis =Functinalism. Critique f cmmn law view f law/plitics. Supprtive f the welfare state, redistributive rle. Law as als facilitative, legitimating. Dyzenhaus =Fundamental Values. Law, rule f law thrugh substantive (mral) evaluatin f its cntent as well as frm. Functinalism can think f thrugh the wrding lking at the functin f what the decisin-maker is ding rather than the name r frmal assignment in the separatin f pwers. Fundamental values r substantivist appraches big jurney frm frmalism b/c see admin bdies as cntributrs t the rule f law n par with legislatures and curts, but theries prvide mre grunds fr review n the same basis --- admin DM have t satisfy the substantive parameters f the rule f law, such as adhering t Charter and ther fundamental values. Separatin f Pwers: Frmalism Legislatures t decide upn and enunciate plicy Curts t interpret and apply the law Executive t administer and implement that plicy

26 25 Rule f law in a culture f justificatin : Where a sciety is marked by a culture f justificatin, an exercise f public pwer is nly apprpriate where it can be justified t citizens in terms f ratinality and fairness. Arbitrary decisins and rules are seen as illegitimate. Rule by fiat is unaccepted. But these standards d nt just stand as abstract rules. Indeed, mst imprtantly, the ability t call fr such a justificatin as a precnditin t the legitimate exercise f public pwer is regarded by citizens as their right, a right which nly illegitimate institutins and laws venture t infringe. The prevalence f such a cultural expectatin is, in my view, the definitive marker f a mature Rule f Law. Justice McLachlin, "The Rles f Administrative Tribunals and Curts in Maintaining the Rule f Law" ( ) 12 Canadian Jurnal f Administrative Law and Practice 171 at 174. Aside: Critiques f the rule f law Many critiques f the rule f law as liberal idelgy Issues regarding where the rule f law desn t run : States f exceptin fr dealing with terrrism. Cnsider Guantanam Bay.

27 Frmatin f the state, acquisitin f svereignty ideas that this is always cercive, a matter f plitics (e.g., Hume). Cnsider indigenus peples and issues regarding the Crwn s acquisitin f svereignty. Issues abut wh gets the benefit f the rule f law. The Rule f Law and the Administrative State Reading Ntes The rule f law is an ideal that is regularly invked by bth prpnents and critics f regulatry measures and public prgrams The rule f law has nt generally agreed upn meaning as applied t law and administratin But, it is reject by few peple The rt idea=the gvernment shuld be subject t the law Dicey and the Liberal Idea f the Rule f Law The key elements f Diceys definitin: That n ne shuld be made t suffer except fr a distinct breach f the law That gvernment and citizens are subject t the general law f the land That the law f gvernment shuld be administered in the rdinary curt (aka cmmn law curts) and nt in a specialized system f administrative curts Each f these ntins is reflected in cntemprary administrative law The first element has been emplyed t attack the statutry grant f brad discretin enabling public fficers t restrict individual freedm f cntract and prperty rights (the main bjects t this is that they may be used imprperly t discriminate against r in favr f certain individuals, it is difficult t hld fficials demcratically accuntable fr highly discretinary decisins and individuals shuld be able t plan their lives in accrdance with knwn rules f general applicatin His definitin has als influenced public law in that he insists in the cmmn law wrld there is n distinct bdy f public law that applies t relatins between individuals and state and that is administer utside f the rdinary curts This prvides justificatin fr the exercise by the supreme curts f their supervisry jurisdictin ver administrative agencies n grunds f prcedural unfairness and illegality, even when the legislature has expressly excluded judicial review Als, entrenching in the superir curts as the arbiters f disputes between individuals and the administrative institutins f the state have given pre-eminent t cmmn law patters f thught in shaping the legal framewrk fr public prgrams The Functinalist Critique Since the 1930s there have been cntrary views frm the dminant traditins f public law mst famusly assciated with dicey First, sme writers challenged the histrical accuracy f Dicey s assertins They have asked whether it is true that the rights f English peple were subject t general law and nt t fficial discretin They have pinted ut that at cmmn law the crwn was immune frm liability in trt, and wide discretin was exercised by the lcal magistrate t dispense f ften brutal frms f criminal punishment Secnd, they have pinted ut that Dicey s disapprval f administrative discretin and his supprt fr affrding t the rdinary curts a key psitin in the reslutin f disputes between individuals and the administrative state culd nt thwart the implementatin f legislative arrangements fr regulatins and redistributin in the public interest Thus far frm ffering a neutral prescriptin fr the prtectin f liberty he designed his versin f the rule f law t put public administratin int a straightjacket Accrding t functinalists, it was mre likely that gvernments in the face f bstructin frm ecnmic vested interests wuld take the curse f least resistance by curbing the effectiveness f public prgrams rather than risking judicial reprach in the name f private rights furthermre 26

28 the fcus f litigatin n the immediate parties t the dispute tend t dwnplay the interests f beneficiaries f the prgram, and wider public interest as cmpnents f judicial decisin making Third, n a philsphical level it was argued that the psitivist legal traditin (f which Dicey thught is part f) have failed t appreciate that law is intertwined with plicy The specialist agency is mre able then reviewing curts t make infrmed assessments that wuld enable the prgram t be effective The functinalist apprach als stressed the facultative and legitimizing rles f law that as a regulatin and prvider the state shuld be regarded as a surce f gd He curts have limited institutin cmpetency n matters which are ften nt questins f law but rather public plicy and administratin the curts shuld have a residual rle in verseeing administrative actins (while insisting n prcedural penness and a minimum standard f ratinality) The functinalist apprach has exerted significant influence n administrative law in Canada since the 1930 s by: Curt have expanded the applicability f the duty f fairness in the exercise f gvernment pwers Cntext has been cnsidered in interpreting enabling legislatin s as t give effect t the legislative purpse The curts have als been prepared t defer t an agencies interpretatins f the enabling statutes (rather than assumes the judicial has a mnply n wisdm) Rule f Law, Demcratic Values and Fundamental Rights There is nt dubt that the functinalist analysis has prvided an imprtant crrective t the view f rule f law prpsed by Dicey and ther ppnents f the interventinist rle fr the state The cmmn law des nt have satisfactry answers t sme f these prblems (aka prblems unreslved r created by the peratin f the market) hwever it seems that he functinalist apprach tends t attach insufficient weight t cnsideratins f demcratic accuntability and fundamental rights and the t the psitive cntributins that curts can make t realizing these gals It is pssible t rewrk sme elements f the liberal versin f the rule f law in rder t prvide a rle fr the law f judicial review in advancing these values in the cntemprary administrative state The apparent dilutin f public cnfidence in the capacity f the traditinal plitical prcess t exercise demcratic cntrl ver the peratins f gvernment, it is apprpriate fr administrative law (bth thrugh statutry refrm and judicial review) t ensure prcedural penness and enhance accuntability in public administratin While review curts shuld nrmally shw a measure f deference t a specialized agency s interpretatin f its enabling statute, it is apprpriate t scrutinize mre clsely thse decisins that seem cntrary t the interest f the intended beneficiaries f the legislatin r t that aspect f the public interest that the legislatin was enacted t prtect We recgnize the frce f the functinalist claim that it is ften futile t imagine that the legislature had a meaning in mind when it enacted prvisins in that statute that has been applied t a set f facts and was almst certainty nt freseen at the time f enactment But the independence and experience f the judiciary make it the apprpriate curt t intervene when they are satisfied that the agencies interpretatin was unreasnable r utright wrng The rights entrenched in the charter have been identified by parliament and the gvernments f the prvinces have apprved it as deserving special prtectin Infringements n charter rights must therefre be weighted carefully against ther cmpeting publics interests Mving Frward The cntents f this chapter suggest three directins frm which administrative law shuld be apprached: 27

29 The details f the public prgram fr which the particular dispute arises must be appreciated (the terms f the statute, the nature f the prgram, the characteristics f the fficials and institutins and the administrative and plitical cntexts within which the statute perates) A knwledgeable f the relevant legal principles and rules, bth substantive and prcedural, is essential t analyze the dispute and lcate it within the elements the cmprise ur legal system: the rules and plicies f the decisin-maker, the cmmn law, legislatin and the cnstitutin It is imprtant t keep in view that the theretic dimensins f a prblem and be able t cnsider it frm the perspective f cmpeting cncepts f law and gvernment 28

30 29 A Cnstitutinal Basis fr Judicial Review [Crevier] Starting Pints S. 96 curts are different than curts cnstituted by statute (inferir curts) S. 96 interpretatin by curts is aimed at preserving that difference in relatin t mre recent, statutrily created curts and tribunals Curts are unlikely t abandn their cncern (which I regard as extravagant) t prevent the ersin f superir-curt jurisdictin (Hgg, p. 665) Ending Pint The cnstitutin, via s. 96, implicitly guarantees the authrity f the curts t review decisins f administrative agencies fr errrs f law r jurisdictin and fr prcedural fairness. (p. 660) Curts are the guardians f the rule f law Frmalist sentiment. Area f law needs sme updating t keep up with current apprach t substantive review!! Curts and Tribunals: Cnstitutinal Backgrund - READING NOTES It is helpful t be familiar with the riginal cntext in which questins abut the legislative capacity t create administrative agencies arse The cntext invlved the creatin by prvincial legislatures f tribunals whse members did nt and n nt have all f the attributed f s judges Tribunals were given authrity ver matters that came within the histrical jurisdictin f the curts presided ver by judges Peter Hgg (Cnstitutin f Canada) Administrative tribunals have decided mre cases and prbable dispse f mre dllars than d rdinary curts Sme f the Reasns fr this Preference: The desire fr specialized bdies Desire fr innvatin (tribunals have brad discretin t develp the plicies and remedies) Desire fr initiative (a tribunal can be given pwer t initiate prceedings, t undertake investigatins d research etc) Prblem f vlume (tribunals can deal with a lt f cases) Ecnmy (it can be faster and less expensive than rdinary curts) Ordinary curts thrugh their exegesis f s.96 and ther judicature sectins f the cnstitutin have assumed the pwer t review legislatin investigating a prvincially established administrative tribunal with adjudicative functins The leading case n the impact f s.96 n the creatin f prvincial administrative tribunals is the decisins R Residential Tenancies Act (SCC) In that case the curt suggested a three step apprach t the reslutin f s.96 challenge t an administrative tribunals pwers First step-histrical inquiry Invlves an investigatin f whether the impugned pwer was ne that was within the pwers f a superir, district r cunty curt at cnfederatin A negative answer t this will reslve s.96 issues in favr f the validity f the pwer withut the necessity t prceed t step 2 and 3 Fr a tribunals pwer t be hl dt be a s.96 pwer at cnfederatin it is clear that the impugned pwer must have been within the exclusive jurisdictin f s.96 curts at cnfederatin Secnd Step-the judicial inquiry

31 30 Invlves the ntriusly elusive task f characterizing the impugned pwer as judicial (in which case the s 96 inquiry can prceed) r as administrative r legislative (in which case the s.96 inquiry can stp) In Re Residential Tenancies Act the curt suggested that a pwer was judicial if it invlved (1) a private dispute between parties (2) that must be adjudicated thrugh the applicatin f a recgnized bdy f rules and (3) that must be adjudicated in a manner cnsistent with fairness and impartiality Third Step-The institutinal setting inquiry Invlves an examinatin f the pwer in its institutinal setting t see whether it is still bradly cnfrms t s. 96 pwer This three step apprach is favred by the SCC; but he suggests it is nt satisfactry as a cnstitutinal law dctrine An amendment prpsal had been circulated fr discussin which wuld specifically grant t the prvinces the pwer t cnfer an administratin tribunal any functin within the prvincial legislative cmpetence, s lng as the tribunals decisins remained subject t the superir curt review [What happened with this?] The Cnstitutinal Limits f Privative Clauses READING NOTES This sectin is abut the dctrine that the cnstitutin implicitly guarantees the authrity f the curts t review decisins f administrative agencies fr erdes r law r jurisdictin and fr prcedural fairness (lead by the decisin in Crevier v AG) This issues is f special significance t privative clauses because it restrains the ability f parliament r a prvincial legislature t limit the scpe f judicial review When talking abut the cnstitutinal basis fr judicial review the fcus is n review f administrative actin where a tribunal r agency allegedly made an errr f jurisdictin r where it denied prcedural fairness t an individual ultimately these are questins that the curts are mst cncerned t prtect, invking the cnstitutin if necessary t d s Public statutry authrities have nly the pwers cnferred un them by legislatin, their pwers are legally limited and it is the curts rle t determine what the limits are Put differently, statutry interpretatin is infrmed by the judiciaries we ideas abut the apprpriate distributin f pwer between curts and administrative agencies Frm Dunsmuir The inherent pwer f superir curts t review administratin actin and ensure it des nt exceed its jurisdictin stems fr the judicature prvisins in s f the Cnstitutin The rle f superir curts in maintaining the rule f law is s imprtant this it is given cnstitutinal prtectin; in shrt judicial review is cnstitutinally guaranteed in Canada Questin: Des parliament r a prvincial legislature have the cnstitutinal capacity t bar any judicial review r an administrative agency? It is nw generally agreed that the legislature des nt have the authrity t ust the curts pwer t review administrative agencies decisins r the agencies enabling statute Legislatures Cannt take away this right t judicial review Outside f cnstitutinal law the situatin is nt as clear the cnstitutin acts d nt have any explicit prvisins dealing with the curts pwer t review decisins f administrative agencies The Cnstitutin des nt utline a general separatin f pwers dctrine, that id is des nt cnfer n parliament and prvincial legislatures the authrity t exercise legislative pwer; it des nt cnfer n the crwn its executive pwers and it des nt cnfer n the curts their judicial pwer But it is pssible t argue that what is nt expressly prvided fr in the cnstitutin is nnetheless implicit within it

32 Statutry Remval f Judicial Review READING NOTES The decisin in Crevier identified the limits f a prvincial legislatures pwer t create an administrative tribunal and give it authrity ver matters cnventinally dealt with by s curts The case cncerned the validity f aspects f the Prfessin Cde, this was a nvel statyte in that in created a prfessinal tribunal that had exclusive jurisdictin, prtected by a full privative clause, t hear appeals frm the disciplinary cmmittees f mst f the statutry prfessinal bdies f Quebec 31 Crevier v AG (Qc), [1981] 2 SCR 220 Cmplicated privative clauses in a scheme invlving: Prfessinal disciplinary cmmittees (lawyers in the case) Appeals frm thse decisins t a Prfessins Tribunal made up f Prvincial Curt Judges and excluding review by superir curts The Superir Curt then quashed (evcatin) that decisin n the basis f s. 96 f the 1867 Cnstitutin Act (Prfessins Tribunal was uncnstitutinal). It is true that this is the first time that this Curt has declared unequivcally that a prvincially cnstituted statutry tribunal cannt cnstitutinally be immunized frm review f decisins n questins f jurisdictin. In my pinin, this limitatin, arising by virtue f s. 96, stands n the same fting as the well-accepted limitatin n the pwer f prvincial statutry tribunals t make unreviewable determinatins f cnstitutinality. There may be differences f pinin as t what are questins f jurisdictin, but in my lexicn, they rise abve and are different frm errrs f law, whether invlving statutry cnstructin f evidentiary matters r ther matters. [p. 667, emphasis added, cntinued n next slide ] It is nw unquestined that privative clauses may, when prperly framed, effectively ust judicial review n questins f law and, indeed, n ther issues nt tuching jurisdictin. Hwever, given that s. 96 is in the British Nrth America Act and that it wuld make a mckery f it t treat it in nn-functinal frmal terms as a mere appinting pwer, I can think f nthing that is mre the hallmark f a Superir Curt than the vesting f pwer in a prvincial statutry tribunal t determine the limits f its jurisdictin withut appeal r ther review. (at p. 667) Mves frm Crevier t a Cnstitutinal right (r basis) fr JR Premise: S. 96 curts are special as cnstitutinally preserved/cnstituted curts, therefre legislatures cannt take away their authrity t review decisins f admin DM n grunds related t legality f the decisin and therefre, there is a cnstitutinal basis t access the curts fr JR Crevier v AG (Quebec), 1981 S 193 f the Prfessin cde prvides fr certain immunity fr acts dne in gd faith and in the perfrmance by a disciplinary cmmittee t the supervisry authrity f the Superir Curt under certain aspects f the cde The SCC cnsidered whether a privative clause in the Prfessinal Cde culd ust all f thse review pwers, especially the pwer t review jurisdictinal questins Where a prvincial legislature purprts t insulate f its statutry tribunals frm any curial review f its adjudicative functins, the insulatin encmpassing jurisdictin, such prvincial legislatin must be struck dwn as uncnstitutinal by reasn f having the effect f cnstituting the tribunal a s96 Curt This is the first time the curt has declared unequivcally that a prvincially cnstituted statutry tribunal cannt cnstitutinally be immunized frm review f decisins n questins f jurisdictin This limitatin (arising by virtue f s 96) stands n the same fting as the well accepted limitatin n the pwer f prvincial statutry tribunals t make unreviewable determinatins f cnstitutinality It is nt unquestined that privative clauses, may, when prperly framed effectively ust judicial review n questins f law and indeed n ther issues nt tuching jurisdictin

33 The curt has been cntent t lk at privative clauses in terms f prper cnstructin and n dubt with a dispsitin t read them narrwly against the lng histry f judicial review n questins f law and questins f jurisdictin Where hwever, questins f law have been specifically cvered in a privative enactment, this curt has nt hesitated t recgnize this limitatin n judicial review as serving the interest f an express legislative plicy t prtect decisins f adjudicative agencies frm external crrectin The same cnsideratins d nt apply t issues f jurisdictin which are nt far remved frm issues f cnstitutinality It cannt be left t a prvincial statutry tribunal (in the face f s 96) t determine the limit f its wn jurisdictin withut appeal r review Even thught the tw sectins f the Prfessinal cde dealing with the appellate authrity f the Prfessinal tribunal there is nt mentin f the wrk law r the wrd jurisdictin When regard is had t the privative terms f theses sectins added t the fact that by s 175 the Prfessinals Tribunals decisins are final, I see n significant distinctin between the present case and the Farrah case in the fact that in the latter the authrity granted t the appeal tribunal was t the exclusin f any ther curt In bth cases there was a purprted exclusin f the reviewing authrity f any ther curt, whether by appeal f by evcatin Crevier: Cntext and Criticism Befre this case there was cntrversy whether any right f judicial review f administrative agencies was cnstitutinally guaranteed The narrw pint settled here is that a prvincial legislature cannt insulate frm review n jurisdictinal grunds the decisins f a prvincial appellate tribunal There were lingering dubts abut after this case abut the validity f prvincial legislatin that created administrative agencies with appellate pwers Cmmentatrs wh criticized the curts previus interventins in the administrative prcess were dismayed that the SCC entrenched in this case a cnstitutinal right t judicial review f jurisdictinal grunds This was seen t reinfrce the ntin that administrative agencies and curts are part f a single decisin making system which the curts sit at the apex with inferir tribunals at the bttm The assessment f the significance f this case depends partly ne s sense f wh curts will handle their authrity t review fr jurisdictinal errr befre this case privative clauses were presumed t nt ust the curts right t determining whether an agency s decisins was within its jurisdictin Despite the clear language f privative clauses, the curts established themselves as a backstp by insisting n their pwer t scrutinize any language in the statute that culd be said t raise preliminary questins, deems in turn t be utside the agency s jurisdictin If this cnstitutinal pwer f judicial review were cnfined t guarding against prcedural unfairness r bad faith decisin making and the ensuring that the exercise f authrity was at least traceable t a granting pwer in statute, then this case might be uncntrversial One f the criticisms has been that the definitin f jurisdictinal errr has been ntriusly elusive and prne t judicial manipulatin Crevier: Federalism r Separatin f Pwers? Is this case ultimately abut preventing the prvinces frm encraching n the federal gvernment pwer t appint judges t the superir curts by the creatin f tribunals that have an essential characteristic f superir curts? OR is it abut prtecting the individuals right t seek a determinatin frm an independent judiciary f the legality f administrative actin? This this case the case law has generally supprted the view that curts pwer t subject tribunals t jurisdictinal review has a cnstitutinal fundatin If the SCC has endrsed the view that there is a cnstitutinal guaranteed right f an individual t seek judicial review f administrative actin n the grunds f jurisdictinal errr illegality, tw practical cnsequences fllw: 32

34 33 The first is that Crevier extents t all administrative decisins makers, including tribunals with riginal decisins making authrity, as well as public des that are vested with wide statutry discretin, whether r nt they are required t hld a hearing befre exercising their pwer The secnd cnsequence is that is als applies t judicial review f federal administrative agencies Bradly speaking this decisin prvides an imprtant backgrund t the Dunsmuir standard f review analysis by utlining the SCCs ratinale fr nt allwing a privative clause t preclude all judicial review f administrative actrs

35 34 Remedies 1. Why g t a tribunal 2. Why g t a curt quick verview f Cmmn law, and nw statutry Remedies via JR 3. Scpe f JR at Curts what is public enugh? 4. Curts discretin t refuse a remedy Remedies at Tribunals Remedies frm a curt vs remedies frm an tribunal E.g. emplyment: damages fr wrngful dismissal (curt, private law) vs. reinstatement via quashing illegal decisin t dismiss (public law) At tribunals: Diverse types f decisins diverse types f remedies What remedies are available depends n the statute Rm fr creativity in institutinal design E.g., Human Rights and attempts t crrect systemic discriminatin. McKinnn case **CHECK UNDER THIS SLIDE FOR PROMSILOWS NOTES Access t Tribunals Standing Depends n statute; basic principle: thse directly affected by the admin decisin may apply fr JR Public interest standing may be argued Where d tribunals hld hearings? Oral, written, vide (raising new fairness cncerns) Fees and csts Applicability f Trial Lawyers Assc f BC? Other cncerns availability f legal cunsel/advice, availability f infrmatin and agency decisins, ease f navigatin Persn (r gv t) unhappy with gv t/tribunal actin/decisin Ombudspersn? Curt actin? Private law remedy?: e.g., breach f cntract, trt f abuse f pub ffice.. Recnsideratin and/r appeal mechanism within statute? Applicatin fr Judicial Review

36 35 Example: PROCESS: E.g. EI and Multiple Births challenge (appeal prcess has since been verhauled) Mther applies fr parental leave benefits under EI fr Twin A; Father applies fr parental leave benefits fr Twin B. Decisin: Father s claim is denied by the Emplyment Insurance Cmmissin (May 29, 2009) STATUORTY APPEALS Father appeals the decisin t 3-persn Bard f Referees statutry appeal prvided by EI Act. Wins. EI Cmmissin appeals t Umpire a further statutry appeal prvided by EI Act. Cmmissin verturns Bard f Referees decisin. (May 31, 2011) JUDICIAL REVIEW Father applies fr judicial review f the Umpire s decisin at the Federal Curt f Appeal. Decisin reviewed n crrectness standards (Charter and statutry interpretatin issues). Lses: 2013 FCA 15 Father applies fr leave t appeal t the SCC. Leave refused, June 27, 2013 Cmmn Law Judicial Review Remedies Remedies available thrugh prergative writs: Certiarri: t quash r set aside a decisin (based n rder t prduce the recrd fr review by superir curt) Prhibitin: t rder a tribunal nt t prceed Mandamus: t rder the perfrmance f a public duty Habeus Crpus: t determine the legality f a persn s detentin Qu Warrant: by what authrity? Private law/equitable discretinary remedies f: Declaratin Injunctin Judicial Review at Cmmn Law READING NOTES Judicial review f administratin actin riginates in the varius prergative writs by which the mnarch (thrugh the Curt f Kings, r Queens Bench) cntrlled the exercise f authrity by fficials wh acted r purprted t act under ryal parliamentary warrant The mst cmmn f these writs was the certirari If the frmal recrd revealed that the bdy was acting withut jurisdictin r that it cmmitted an errr f law n the face f the recrd the prcess wuld be quashed In essence, certirari and ther prergative writs were vehicles fr ensuring that the administrative arms f the gvernment were kept under cntrl aka it was a system f review aimed at the cntrl f public as ppsed t private bdies This sense f judicial review as a public law remedy remains a crucial element even tday Statutry Refrm Judicial Review Prcedure Act, RSBC 1996, c 241 (JRPA) (p. 949): 2 (1) An applicatin fr judicial review must be brught by way f a petitin prceeding. (2) On an applicatin fr judicial review, the curt may grant any relief that the applicant wuld be entitled t in any ne r mre f the prceedings fr: (a) relief in the nature f mandamus, prhibitin r certirari; (b) a declaratin r injunctin, r bth, in relatin t the exercise, refusal t exercise, r prpsed r purprted exercise, f a statutry pwer.

37 36 S. 18 re qu warrant Federal Curt Act, RSC 1985, c f (1) An applicatin fr judicial review may be made by the Attrney General f Canada r by anyne directly affected by the matter in respect f which relief is sught. Pwers f Federal Curt (3) On an applicatin fr judicial review, the Federal Curt may (a) rder a federal bard, cmmissin r ther tribunal t d any act r thing it has unlawfully failed r refused t d r has unreasnably delayed in ding; r (b) declare invalid r unlawful, r quash, set aside r set aside and refer back fr determinatin in accrdance with such directins as it cnsiders t be apprpriate, prhibit r restrain, a decisin, rder, act r prceeding f a federal bard, cmmissin r ther tribunal. Sme applicatins fr JR g straight t the Federal Curt f Appeal, as per the list in s. 28 (1) Statutry Prvisins JRPA: 8 (1) If, in a prceeding referred t in sectin 2, the curt had, befre February 1, 1977, a discretin t refuse t grant relief n any grund, the curt has the same discretin t refuse t grant relief n the same grund. (2) Despite subsectin (1), the curt may nt refuse t grant relief in a prceeding referred t in sectin 2 n the grund that the relief shuld have been sught in anther prceeding referred t in sectin 2. The Impact f Statutry Remedial Regimes READING NOTES The Federal Curts Act Under the Federal Curts Act the federal curts riginal jurisdictin is expressed in s.18 in the terms f the review f a federal bard, cmmissin r ther tribunal Sectin 2 f the Federal Curts Act federal bard, cmmissin r ther tribunal means any bdy, persn r persns having, exercising r purprting t exercise jurisdictin r pwers cnferred by r under an Act f Parliament r by r under an rder made pursuant t a prergative f the Crwn, ther than the Tax Curt f Canada r any f its judges, any such bdy cnstituted r established by r under a law f a prvince r any such persn r persns appinted under r in accrdance with a law f a prvince r under sectin 96 f the Cnstitutin Act, 1867 ; Ntable in this definitin is the inclusin in 1990 f the prergative pwers, a puzzling missin frm the riginal 1970s versin The federal curts have held that direct exercises f the prergative are included and reviewable in the Federal Curt The term by r under an Act f Parliament bliviusly extends t pwers cnferred by subrdinate as well as primary legislatin The Judicial Review Prcedure Act f BC Sectin 2 2 (1) An applicatin fr judicial review must be brught by way f a petitin prceeding. (2) On an applicatin fr judicial review, the curt may grant any relief that the applicant wuld be entitled t in any ne r mre f the prceedings fr: (a) relief in the nature f mandamus, prhibitin r certirari; (b) a declaratin r injunctin, r bth, in relatin t the exercise, refusal t exercise, r prpsed r purprted exercise, f a statutry pwer Sectin 1 "statutry pwer" means a pwer r right cnferred by an enactment (a) t make a regulatin, rule, bylaw r rder, (b) t exercise a statutry pwer f decisin,

38 (c) t require a persn t d r t refrain frm ding an act r thing that, but fr that requirement, the persn wuld nt be required by law t d r t refrain frm ding, (d) t d an act r thing that wuld, but fr that pwer r right, be a breach f a legal right f any persn, r (e) t make an investigatin r inquiry int a persn's legal right, pwer, privilege, immunity, duty r liability; "statutry pwer f decisin" means a pwer r right cnferred by an enactment t make a decisin deciding r prescribing (a) the legal rights, pwers, privileges, immunities, duties r liabilities f a persn, r (b) the eligibility f a persn t receive, r t cntinue t receive, a benefit r licence, whether r nt the persn is legally entitled t it, and includes the pwers f the Prvincial Curt; The Scpe f the New Remedy: Frzen r Evlutinary There was sme questin whether the public law remedies that prvide the reference pint (the cmmn law prergative writs) fr the new applicatin fr judicial review established in the act were t be given the cntent that they had at the time f the creatin f the new remedy f whether their cntent shuld be delineated n the basis f the scpe that they came t pssess in ther jurisdictins It is nt clear that their cntent is NOT frzen The Nature f There is an issue abut the meaning and impact f the wrds in the nature f because befre theses statutes were enacted, the curts did nt issue the prergative writs In BC the curts were nt s expansive in interpreting the reach f the Judicial Review Prcedure Act and the meaning f in the nature f In the same cntext, the applicatin fr judicial review f the expulsin f a member by a trade unin, the BCCA held that relief was unavailable While the curt was nt cnfined t the review f statutry pwers under the act, nnetheless the target f the applicatin had been affecting public rights The Relevance f Statutry Pwer This statute framed the new remedy differently in relatin t prergative style relief n the ne hand and injunctive and declaratry relief n the ther It is clear that the availability f declaratry and injunctive relief under the BC act depends n their being an exercise f statutry pwer and that this requirement may remve frm the ambit f the act sme aspects f the mdern uses f declaratry and injunctive relief as public law remedies Discretinary Nature f Remedies n Judicial Review Discretin t refuse relief Remedies n judicial review are discretinary. This discretin ges t: Whether t grant judicial review (threshld questin), and What remedy t grant/whether t grant a remedy (remedial questin) Curt might exercise this discretin when: 1. There are timing and frum cncerns when applicatin is premature, where applicant has delayed in bringing JR frward (r acquiesced t decisin), where the matter has becme mt r there is a lack f practical utility, r where there are alternate rutes available thrugh which relief is mre apprpriately pursued. E.g. Harelkin, Hwe adequate alternative remedies 2. Cnduct f the parties is questinable Where there are issues in the cnduct f the parties: delay in bringing the applicatin, miscnduct/bad faith, r parties waived their rights. E.g., Hmex Realty v. Village f Wyming (in readings, but we will take it up when we get t Prcedural Fairness) 3. Fr reasns f deference 37

39 38 Balance f Cnvenience, ideas f public interest: E.g., Mining Watch. New cncerns stemming frm deference fr administrative decisin-making, e.g., Dmtar Frms f Permanent Relief READING NOTES Statutry Appeals It shuld be recgnized that the mst cmmn way t challenge administrative actin is by the huge variety f statutry appeals that exists in individual statutes creating specific tribunals, agencies and statutry pwers. The scpe f these appellate prvisins varies greatly byt at their bradest they authrize judicial reversal f the decisin under attack n bth questins f law and fact, smetimes after a cmplete rehearing f the matter in issue Such an intrusive review f an administrative decisin is nt a characteristic f cmmn law judicial review T the extend that the empwering statute creates a right f appeal, these are viewed by the curts as the legislatively preferred mde f challenging a decisin It is imprtant t cnsult the statute that created the statutry pwer it may prvide fr a mre extensive mde f relief than allwed fr under principles f judicial review Judicial Review Cllateral Attack The bulk f judicial review f administrative actin takes place within the legal framewrk f direct attack aka prceedings where the challenged administrative actin r inactin is the direct fcus f the pleadings and f the remedy sught But this is nt always the case The SCC has made it clear that cllateral attack is nt a matter f right but shuld be circumscribed clsely by judicial discretin Direct Attack Until recently the substantive scpe f judicial review f administrative actin was largely dictated by the rules n the availability f the varius public law remedies The state f affairs at the time created pressure fr legislative and judicial refrm f the law gverning the scpe and availability f judicial review remedies In particular it created pressures t remve unnecessary technicalities and t expand the varius frms f relief t enable curts t have mre flexibility in fashining relief that was apprpriate t the circumstances in a particular case The judge was unable t rder any thing but a quash when an applicatin fr relief in the nature f certirari was made this was a real impediment t administrative justice Frtunately, steps were taken t eliminate impediments t an effective system f administrative law remedies In large measure, the species f relief in mdern legislatin d mre than cdify the remedial utcmes f a successful applicatin fr the frmer remedies Putting all theses mdes f relief under ne judicial review remedy meant that difficulties in chsing the crrect remedy were remved r minimized (prvided the acts initial threshlds were crssed) Als the ability f the curt t refer a matter back fr recnsideratins in accrdance with specific findings f the curt f with directins is a significant remedial additin t the judicial review pwer f the curt The general availability f interim relief is a majr imprvement ver the situatin where interim relief was thught t be unavailable in supprt f an applicatin fr a prergative remedy r by way f declaratin and where the nly mde f interim relief was by an applicatin fr an interim injunctin r stay f prceedings generally restricted t a situatin where the applicant was prceedings by way f actin and subject t all the restrictins the limitatins f injunctive relief generally Nte that these statutry refrms have cme with sme uncertainties dispute this curts have been able t find creative and sensible slutins t remedial dilemmas

40 There is an issue in sme jurisdictins (including BC) as t whether their statutry regimes f judicial review wuld allw a persn t seek a bare declaratin that an administrative regime vilates the charter **Tw specific remedial prblems shuld be addressed n permanent relief 1. Effects f Certirari Relief Abut the impacts n the cntinuing jurisdictin f a statutry authrity ver a matter when a quashing rder has been made against it In sme instances, the award fr relief in the nature f certirari r prhibitin will have the effect f leaving the authrity under attacked with the residual jurisdictin in the matter Hwever, judicial review des nt always undermine the whle authrity f the decisin maker 2. Limits f Mandamus Relief Mandamus is apprpriate t vercme the inactin r miscnduct f persns charged with the perfrmance f duties f a public nature befre the remedy can be given the applicant must shw: [Karavs v City f Trnt] i. A clear, legal right t have the thing sught but it dne, and dne in the manner and by the persns sught t be cerced ii. The duty whse perfrmance it is sught t cerce by mandamus must be actually due and incumbent upn the fficer at the time f seeking the relief, and the writ will nt lie t cmpel the ding f an act which he is nt yet under bligatin t perfrm iii. The duty must be purely ministerial in nature, plainly incumbent upn an fficer by peratin f law r by virtue f his ffice and cncerning which he pssesses n discretinary pwers iv. There must be a demand and refusal t perfrm the act which is it sught t cerce by legal remedy This is smetimes sught tgether with certirari The remedy f certirari is sught t quash a decisin already taken, maldamus is sught t cmpel that the decisin be retaken in accrdance with the law Tday, the equivalent under the varius judicial review prcedure statutes wuld be quashing and remissin back t redeterminatin in accrdance with the law Interim and Interlcutry Relief and Stays f Prceedings READING NOTES Where there is authrity that the service f an applicatin r certirari autmatically stays a tribunals prceedings, until the applicatin has been determined the filing f an applicatin fr judicial review generally desn t t have the effect f staying prceedings in the underlying decisin-making prcess But the absence f any capacity f the part f the curt t prvide interim relief in supprt f an applicatin fr judicial review appears t be inapprpriate in sme situatins In the mdern judicial review regimes express prvisin is made fr the award f interim relief pending the dispsitin f an applicatin fr judicial review In general the availability f interim relief t halt the administrative prcess is subject t the same principles that gvern the availability f interim injunctins in the private dmain A key cnsideratin in the balancing f these varius interests invlved is the public interest, hwever in the efficient and timely exercise f statutry pwer The Discretin f the Curt READING NOTES Intrductin The curt asserts an verriding distractin t deny relief The cmmn grunds fr such refusals is t intervene are the existence f alternative avenues f recurse, such as a statutry right f appeal r a mre cnvenient curt remedy; prematurity and its ppsites, delay and mtness; lack f practical unity; the miscnduct f the applicant; waiver and ccasinally the balance f cnvenience f the public interest The traditinal cmmn law discretin t refuse relief n jurisdictinal review cncerns the parties cnduct, any undue delay and the existence f alternative remedies 39

41 T the extent that mst f these bases fr the denial f relief are rted in cncerns fr the integrity and the functining f the administrative prcess, the apprpriateness f the discretinary denial f relief raises issues, in particular the extent f the claim that the administrative prcess has ver the curts fr deference and institutinal respect As with ther cntrl mechanisms, the discretinary grunds fr the refusal f relief have the ptential t legitimate unlawful administrative actin and part f ur bjective in this chapter is t raise questins as t when it is apprpriate fr the curts t take that risk f allwing an unlawful decisin r curse f actin t achieve de fact legal status Even if ne accepts that breach f the rules f natural justice renders a decisin vid fr the purpses f evading the effect f a privative clause, that des nt mean that decisins tainted by such errrs can achieve legally impregnable status Alternative Remedies The curts will smetimes regard the existence f a specific remedy in the empwering statute as excluding the availability f cmmn law judicial review as a matter f jurisdictin Mre frequently, the questin f alternative remedies is dealt with be reference t the curts verriding discretin t refuse relief even when the substance f the applicant s case may have been made ut Harelkin v Univ f Regina (1979) 40 **The ISSUE can H take his case directly t the curts fr JR? r des he have t exhaust statutry ptins first? Factrs in assessing adequate alternative remedy: Cmpsitin f appeal bdy (senate cmmittee) Pwers (i.e., what kind f rder can it make? Can it hear evidence? De nv hearing r just appeal? Hw are earlier decisins taken int accunt?) Prcedures by which thse pwers are exercised Cst, expediencies (balance f cnvenience, respect fr legislative intent) Harelkin v University f Regina, 1979 Facts: H was kicked ut f schl. His appeal t the university cmmittee was dismissed withut his being given a hearing. He then applied fr certirari and mandamus, rather than pursuing the available right f appeal t a cmmittee f the university senate. His applicatin was allwed by the Saskatchewan Queens Bench, then reversed n appeal. Nw it was in frnt f the SCC. Nte-there was n dubt that there was a breach f the rules f natural justice.

42 Issue Shuld the curt judicially review the decisin? Outcme Nte- he is arguing that the breach f rules f natural justice means there is n decisin t appeal, thus he shuld be able t turn t the curts The remedies sught are discretinary by nature The beach f rules f natural justice d n nullify a decisin (even if the decisin was nullified a reading f the statute shuld that the appeal prvisins allw an appeal) There is n general rule that breach f rules f natural justice culd nt be cured n appeal Is the right f appeal t the senate cmmittee an adequate alternative remedy? Several factrs shuld be taken int cnsideratin (the prcedure f the appeal, the cmpsitin f the senate cmmittee etc) There was nthing in the university statute abut the prcedures t be fllwed by the senate appeals cmmittee The applicant is nt entitled t assume that because f the lack f such bylaws the senate cmmittee wuld have denied him a hearing He shuld have assumed that the bdy f superir jurisdictin wuld give him justice One shuld expect in the cntext that an appeal is mre likely t take the frm resembling that f a trial de nv than a pure appeal It shuld nt be presumed that the senate cmmittee wuld have erred in law and decided that the applicant was nt entitled t be heard by the cuncil cmmittee It must be assumed that they wuld reach the crrect decisin, and if nt then a curt culd quash it The appellants right f appeal t the senate cmmittee prvided him with adequate alternative remedy AND this remedy was mre cnvenient fr him and the university in terms f csts and expediusness He shuld have lked t the internal mechanisms befre turning t the curts The curts shuld nt use their discretin t prmte delay and expenditure unless there is NO ther way t prtect a right Even thugh a re-hearing was denied he culd still g t the senate cmmittee The prvisins in the statute make it clear that the curts shuld use restraint and be slw t intervene in university affairs by means f discretinary writ when it is still pssible fr the university t crrect its errrs within its wn institutinal means Dickinsn [Dissent] (+2) There was a breach f the rules f natural justice and such breach amunted t a jurisdictinal errr Where there has been a denial f natural justice, certirari will issue, ntwithstanding a right f appeal t an administrative r dmestic bdy Where an alternative remedy exists, in the case f want f jurisdictin, certirari remains available but in each case the curts exercising its discretin must cnsider the cnvenience and adequacy f the alternative remedy The nature f the errr will als be cnsidered (if the lss f jurisdictin derives frm a misinterpretatin f a statue, a statutry right f appeal may be adequate, but if the breach f natural justice in all but the rarest cases will render inadequate remedies) The nature f the appellant bdy is a cncern (where a statutry right f appeal is prvided directly t the curts, the reviewing curt is mre likely t refuse certirari) On the ther hand, as ne mves away frm a right t appeal t the curts t a right f appeal t a statutry tribunal the alternative remedies are mre frequently fund t be inadequate The capacity f the remedial bdy is als imprtant, where the bdy may grant the remedy exercises riginal jurisdictin perhaps even hearing the matter de nv the remedy will be mre ften perceived as adequate An appeal is simply nt a sufficient remedy fr the failure t d justice in the first place H shuld be able t lk t the curts fr relief is he is treated unfairly by the cunsel, regardless f what might have ccurred befre the senate, had he pursued that rute At the time he was faced with a chice f appeal r certirari he had n assurance he wuld be heard by the senate cmmittee 41

43 The fact that the senate has adpted prcedural safeguards since theses prceedings were initiated clarifies that issue fr the future, but des nt in any way affect the utcme f this appeal 42 Statutry Appeals t the Curts READING NOTES In additin t cases where the argument is based n the exhaustin f the administrative prcess thrugh recurse t the statutry appeals t higher tribunals, r smetimes applicatins fr recnsideratin, claims f a sufficient statutry right f appeals als surface when smene has cmmenced an applicatin fr judicial review rather than using a statutry right f appeal (which is prvided fr in the empwering statute) Generally, Canadian curts take the psitin that if the grunds n which the applicant fr judicial review is relying culd have been raised in the cntext f the statutry appeal, the applicatin will be dismissed Matters f appeals t the curts and ther statutry bdies are dealing with in the Federal Curt Act and als the BC Judicial Review Prcedure Act Alternative Methds f Establishing Rights r Enfrcing Observance f Statutes and Orders A smewhat different aspect f the issues f alternative remedies is raised when an attempt is made t use the curts t vindicate the rights created by r arising under a statue r enfrce statutry r administrative prhibitins There may be ther methds established t the reslutin f such matters Prematurity Prematurity (r an absence f ripeness as it is described in the US) invlves an assertin by the curt that, while the applicant may ptentially have a gd cause f actin, the matter is inapprpriate fr judicial interventin at present There are a number f reasns why this might be s Fr instance, there is a pssibility that the matter may be reslves internally r withut the need fr curt interventin It als surfaces in cntexts f applicatins t prhibit a tribunal frm dealing with an issues in favur f its reslutin by a curt In such instances the reviewing curt will generally take int accunt the legal questins whether the statutry regime itself explicitly r implicitly bliges r even permits the tribunal t have a first crack at reslving the issue in questin Prematurity has anther dimensin aside frm questins f cmparative expertise with respect t the issues in questin, ne f the frequent advantages f allwing the tribunal t prceed t a cnclusin n the issue in questin in that it will thereby be building an evidential recrd that will facilitate subsequent judicial review Hwe brings tgether the issue f prematurity and the availability f an adequate right appeal in that the applicant fr relief was cnfrnted by the dual argument that the tribunal itself had nt finally rules n the issue and that there was a right f appeal frm the ultimate decisin f the tribunal anyways Hwe v Institute f Chartered Accuntants (1994) Nn-disclsure f investigative reprt in a prfessinal disciplinary prceeding Is the JR applicatin premature (and therefre curt shuld exercise discretin t nt prvide a remedy)? Is this (ptential) failure t prvide NJ fatal t the disciplinary prceeding? Principle: shuld [nt] encurage applicatins.which have the effect f fragmenting and prtracting the prceedings except in the clearest f cases. (p. 1068) What is Laskin JA n abut? What kind f apprach Rule f law apprach is apparent in his dissent? Hwe v Institute f Chartered Accuntants f Ontari, 1994 Facts: There was an investigatin int Hwes cnduct, charges n prfessinal miscnduct were laid against him. Befre cnvening the disciplinary cmmittee, they gave H materials pertaining t his case, but they did nt give him

44 the reprt f its investigatin. H then appealed fr judicial review claiming that he was entitled t discvery f this material under the principles f R v Stinchcmbe. He is basically saying the decisin is prcedurally unfair already because he didn t have full disclsure (even thugh it hadn t been rendered). Issue Can H appeal fr judicial review befre a decisin is made by the tribunal itself? Outcme H wuld have a right f appeal t the appeal cmmittee frm an adverse decisin f the cmmittee it was specifically mentined that allegatins f breach f rules f natural justice (aka prcedural fairness) culd be raise din such an appeal and there was rm fr the appeal t prceed by way f de nv hearing The curt is being asked t rule f the adequacy f the disclsure made, befre there are any means f gauging the significance f what has been disclsed against what was in the reprt Cnsequently, the curt is nt in a psitin t identify and weigh the nn-disclsure against the evidence actually given against the applicant This curt agrees with the divisinal curt that the applicatin is premature The curt will nt interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdictin r have irretrievable lst it It is nt clear that the refusal t rder the prductin f the dcuments ges t jurisdictin, much less that it is a denial f natural justice r a fatal flaw t the exercise f the tribunal f that jurisdictin On the pivtal questin f whether the claim f privilege was valid, there is nthing n the recrd t shw that the decisin f the cmmittee was nt reasnable We shuld nt encurage applicants such as these which have the effect f fragmenting and prtracting the prceedings EXCEPT in the clearest f cases Dissent [Laskin] A breach f natural justice amunts r is akin t jurisdictinal errr where there is a jurisdictinal errr arising frm a breach f natural justice during the curts f the prceedings, a curt is entitled t intervene t crrect the errr thrugh the party affected has a right f appeal Assuming that the existence f an adequate alternative remedy by appeal affrds a curt basis t refuse judicial review, the questin remains whether the applicants right f appeal is an adequate alternative remedy fr the beach cmplained f in my pinin it wuld be mre efficient and less cstly t determine the issue f disclsure nw Refusing judicial review wuld have the effect f denying the appellants right t tw prcedurally fair hearings, ne at first instance and the ther (if required) n appeal There is n valid reasn why the appellant shuld have t g thrugh a lengthy and cstly public hearing that is flawed at the nset when this curt can crrect the flaw nw 43 Hmex Realty v Wyming, 1980 Miscnduct f Applicant READING NOTES On ccasin the curt will deny a remedy because f the way in which the persn seeking relief has behaved This is well knwn grunds fr refusal f equitable relief invking the ld maxim thse wh cme t equity must sme with clean hands The curts impsed the same type f cnsideratins int the law relating t public law judicial review Hmex Realty v Wyming, 1980 Facts: The curts determined that H had an right t an pprtunity t be heard and they did nt recieve this pprtunity befre the passing n a by-law. In all the circumstances they are entitled t the remedy sught (quashing f the by law). Issue What remedy, if any, shuld the curt award? Outcme Remedies are discretinary in nature, the curt can use its discretin t deny certirari t an applicant The cnduct f the party much be such that it has n disentitled them t relief The curt may, because n the cnduct f the applicant deny t grant relief Applicatin

45 In this case lking at all the evidence H tried t put their lands beynd the reach f municipal bylaws, they were ding shady things Because f the cnduct f H the curt denied t impse a remedy Waiver READINGS On ccasin relief may be denied t an applicant n the basis n waiver r acquiescence Mst cmmnly this ccurs where the defect cmplained f is breach f rules f natural justice f bias There are sme limits t the extent that waiver will be perative AT time, breach f natural justice has been regarded as a categry f jurisdictinal errr and this raises sme theretical prblems with using waiver r acquiescence as a basis fr the denial f relief in such cases Balance f Cnvenience READINGS In a very direct sense, the refusal f relief because the applicant has ther avenues f recurse available, r n the basis that there was a chance that the cmpletin f the prceedings by the tribunal wuld eliminate the applicant cncerns, is based n the premise that it is mre cnvenient t use alternative means f slving the prblem befre r as a substitute fr seeking judicial review Discretinary grunds that fcus n the cnduct f the applicant generally invlve a balance n cnvenience cnsideratins Balance f cnsideratin smetimes surfaces as an independent basis n which judicial review is denied and ther avenues f relief effectively freclsed, ntwithstanding the fact that the applicant has made ut the merits f the case fr judicial review 44 Mining Watch, 2010 SCC Federal EA f pen pit mine in BC dwn-scped t nly a screening. Mining Watch JRs this decisin t dwn scpe as having n basis in the statute (illegal). Curt agrees but exercises discretin t nt quash decisin t apprve prject (and therefre nt require additinal federal EA) What factrs were invlved in SCC s exercise f discretin here? Mining Watch Canada v Canada, 2010 Facts: the feds decided that a cmprehensive federal envirnmental assessment was nt necessary (BC had already dne ne). They decided that all that was required was screening. Mining Watch, a public interest grup applied fr judicial review f this decisin. The SCC cncluded that the department had acted withut statutry authrity, they went n the assess what relief shuld be awarded. Issue What relief shuld be awarded? Outcme There shuld be n re-d f the envirnmental assessment Mining Watch has brught his case t judicial review as a test case fr the federal gvernments bligatins under s.21 The curt will take this at face value, a declaratin t the prper interpretatin f sectin 21 and the bligatins f the federal gvernment achieves Mining Watches stated bjectives and grants its substantial prtin f the relief asked fr The apprpriate relief wuld be t allw the applicatin fr judicial review and declare that there was an errr in failing t cnduct t cmprehensive study But nt further relief shuld be granted The curt has the pwer t exercise discretin t nt grant a remedy r alter the remedy sught This situatin des nt justify requiring Red Chris t repeat an envirnmental assessment prcess

46 45 Scpe f Judicial Review What is Public Enugh? QUESTION WHAT IS PUBLIC ENOUGH? Prergative Pwers f the Crwn What are they? Generally highly plitical, highly discretinary Als, gvernment smetimes acts as a private actr t carry n the business f gvernment; e.g., leasing, hiring janitrial services, prcurement JR is generally available with respect t exercises f Prerg Pwers. Why? When will JR nt be available? Operatin Dismantle, decisin t allw review f decisin t allw cruise missile testing fr breach f s. 7 The citizenship f Sir Cnrad Black was nt reviewable but nt (simply) b/c bestwing hnurs is a prerg authrity: Black v Chretien (2001) see p. 949: [T]he surce f the pwer statute r prergative shuld nt determine whether the actin cmplained f is reviewable (at para 44) (see critical cmment by Lrne Sssin: Hupacaseth First Natin v. Attrney General, 2015 FCA 4; Review f decisin t enter bilateral trade agreement allwed (but challenge fails -see paras ) The Reach f Public Law Remedies READING NOTES The basic questin: where an entity is public, such that it is subjected t judicial review? [this can be difficult t answer] In recent times the expansive apprach t what cnstitutes public and the recgnitin that sme authrities pssess bth public and private rle makes the distinctin much harder There are sme cntexts where it wnt matter if the litigatin it technically public r private (the remedy wuld be the same and the allegatins may be lcated in either the private r public dmain) But there are sme ccasins where the private-public distinctin is crucial Fr instance, the principle statutes f judicial review remedies (Federal curt act and Judicial review prcedure act) f BC cntains frmulas that frce the issue f whether the matter in dispute falls within the statutes cnceptin f the reach f public law remedies It is als significant in situatins where the issue f whether the bdy r functin is significantly public t qualify fr review by way f public law remedies is in reality an issue as t the extent t which curts can interfere with the decisin in questin Althugh the distinctin between gvernment and the private sectr is nt maintained as rigidly in the jurisprudence, the different cnceptins f their rles and bligatins ften lead t disputes abut the availability f judicial review Dunsmuir v New Brunswick, 2008 Quebec v Cyr, 2008 SCC decided that nt emplyees under the statute are entitled t a fair hearing befre they were dismissed thse excluded had nt access t public law remedies (nly cntractual nes) such that they may have n entitlement t a hearing befre dismissal and nt pssibility f restatement as a remedy SCC cncluded that public law remedies were available t allw an autmbile mechanic t challenge the SAAQ s decisins t revke his accreditatin (dispute the SAAQ having cntracted ut f the duty t inspect autmbiles t the mechanic s emplyer) public law remedies were available pursuant t An Act Respecting Administrative Justice which places prcedural requirements n an administrative authrity prir t making an unfavrable decisins cncerning a permit r licence

47 46 R v Church Assembly Legislative *SAAQ had nt insulted itself frm the requirements f administrative law by implementing a cntract-based scheme t meet its statutry duties The remedies f certirari and prhibitin where available whenever any bdy f persns have legal authrity t determine questins this was interpreted subsequently as cnfirming the reach f public law remedies t bdies that were genuinely statutry Vlker Stevin NWT ( 92) Ltd v NWT Decisin re status as a Nrthern Business Authrity fr this decisin? Reviewable. Hw is this decisin different frm a prcurement decisin? (such that JR applies) Machinery f gvernment Vlker Stevin NWT Ltd v Nrthwest Territries, 1994 Facts An advisry cmmittee f civil servants and business representatives was established under a directive attached t a plicy dcument f the gvernment f NWT. Its purpse was t designate businesses as Nrthern Businesses (that were then eligible fr varius gvernment incentives). The directive als set ut the criteria fr qualifying as a nrthern business and prvided fr an appeal prcess. The advisry cmmittee revked the applicant s designatin and the applicant applied fr an rder in certirari t quash the decisin. Issue: Was judicial review available here? Outcme Trial Judge decisins under the plicy dcument were nt amendable t judicial review. He said that in the cntext f this case judicial review is available nly t review the exercise f statutry authrity. The adptin f the plicy and its administratin were nt an exercise f statutry authrity but rather gvernments prcurement f gds and services being cmmercial decisins theses were nt subject t review. On Appeal The judge disagreed! Judicial review is available t review decisins, nt nly f public bdies exercising statutry duties but als f thse administrative bdies which btain authrity frm prergative pwers; their decisins affect rights r ther wh cme under their directin. The cmmittees, the business incentive plicy and authrity exercised by virtue f the plicy g beynd mere decisins by civil servants regarding prcurement f gds and services. While the curt must be careful nt t assume jurisdictin where nne exists, the ability f judicial review has expanded ver the years Exact limits n the remedy by way f certirari have never been, and ught nt be specifically defined. Decisins f administrative bdies are reviewable n certirari if an analysis f their functins disclses a duty f prcedural fairness The business incentive plicy mnitring ffice, its fficers and the cmmittees created by the plicy are part f the machinery f gvernment decisin making while the surce f the pwer is nt statutry the plicy is recgnized in the gvernment cntract regulatins and must be applied by all gvernment departments in assessing tenders submitted t the gvernment Purely cmmercial decisins relating t the prcurement f gvernment gds and services generally d nt fall within the class f cases which wuld be subjected t judicial review, the decisins here g beynd that List a number f facts that lead t this cnclusin [Page 934] There are aspects that bring in the public duty and fairness cmpnent Decisin the decisins was amendable t review fr prcedural unfairness in an applicatin fr certirari; the curt remitted the matter t the chambers judge fr cnsideratin f whether there was a denial f prcedural fairness in the revcatin f the applicatins designatin.

48 Air Canada v Trnt Prt Authrity JR remedies are available nly against exercises f pwer that are public in character. (at para 55) Nte cntext: Interpreting s. 18(1) f the Federal Curts Act What is public? Principles in para 60. Air Canada v Trnt Prt Authrity, 2011 FCA Facts At issue in this cases was the reviewability f bulletins issues by the Trnt Prt Authrity respecting the allcatin f landing sprts at Billy Bishp Airprt in Trnt, and its actins in grand parenting the existing landing spts allcated t Prter Airlines. Imprtant in this case is the list f criteria t be cnsidered when issues arise as t whether a particular decisin r decisin maker was amenable t public law judicial review. Issue: are the actins and bulletins f the authrity sufficiently public t attract judicial review under sectin 18.1 f the Federal Curt Act? Aka was the Trnt Prt Authrity acting as a federal bard, cmmissin r ther tribunal when it engaged in the cnduct described in the bulletins? Outcme An applicatin fr judicial review under the Federal Curts Act can ONLY be brught against a federal bard, cmmissin r ther tribunal this is mandatry What is a Federal Bard, Cmmissin r ther Tribunal? It is defined in subsectin 2(1) f the Federal Curts Act nly thse that exercise jurisdictin r pwers cnferred by r under an Act f Parliament r an rder made pursuant t crwn prergative can be federal bards, cmmissins r ther tribunals These wrds require us t examine that particular jurisdictin f pwer being exercised in a particular case and the surce f that jurisdictin r pwer This will turn n whether r nt there is a particular federal act r prergative underlying the administrative decisin makers pwer r jurisdictin (example: in Anisman the surce f the administrative decisin makers pwer was prvincial legislatin, and s judicial review under the Federal Curt act was nt available) In this case all parties accept that the actins disclsed in the bulletins find their ultimate surce in federal law BUT the prt authrity argues this alne is nt enugh t satisfy the requirement; that t supprt this the cnduct r pwer exercised must be f a public character Every significant federal tribunal has public pwers f decisin making, but alngside theses are express r implied pwers t act in certain private ways (such as reneging and managing premises, hiring staff) in a technical sense each f these pwers finds its ultimate surce in federal statute, but many f thse pwers cannt be reviewable This then begs the questin f what is public and what is private? perhaps there can be n cmprehensive answer In determining public-private issues ALL circumstances must be weighed There are a number f relevant factrs t determine if a matter is clred with a public element sufficient t bring it int the purview f public law. Whether r nt any ne factr r cmbinatin f particular factrs tips the balance and makes a matter public depends n the facts f the case and the verall impressin registered upn the curt Relevant Factrs: The Character f the Matter fr Which Review is Sught Is it a private, cmmercial matter r is it f brader imprt t members f the public? The Nature f the Decisins Maker and its Respnsibilities Is the decisin maker public is nature, such as a crwn agent r a statutrily-recgnized administrative bdy and charged with public respnsibilities? Is the matter under review clsely related t thse respnsibilities? The Extent t which the decisin is funded in and shaped by law as appsed t private discretin If the particular decisin is authrized by r emantes directly frm a public surce f law such as statute, regulatin r rder, a curt will be mre willing t find that the matter is public 47

49 This is all the mre the case if that public surce f law supplied the criteria upn which the decisin is made Matters based n a pwer t act that is funded in smething ther than legislatin, such as a general cntract f law r business cnsideratins, are mre likely t be viewed as utside f the ambit f judicial review The Bdy s relatinship t ther statutry schemes r ther parts f gvernment If the bdy is wven int the netwrk f gvernment and is exercising a pwer as part f that netwrk, its actins are mre likely t be seen as a public matter The extent t which a decisin maker is an agent f gvernment r is directed, cntrlled r significantly influenced by a public entity Fr example: private persns retained by gvernment t cnduct an investigatin int whether a pubic fficial miscnducted himself may be regarded as exercising an authrity that is public in nature A requirement that plicies, by-laws r ther matters be apprved r reviewed by gvernment may be relevant The suitability f public law remedies If the nature f the matter is such that public law remedies wuld be useful curts are mre inclined t regard it as public in nature The existence f cmpulsry pwers The existence f cmpulsry pwer ver the public at large r ver a defined grup such as prfessinals, may be an indicatr that the decisin is public in nature This is t be cntrasted with situatins where parties cnsensually submit t jurisdictin An exceptinal categry f cases where the cnduct has attained a serius public dimensin Where a matter has a very serius, exceptinal effect n the rights r interests f a brad segment f the public, it may be reviewable Applicatin Cnclusin=the matters set ut in the bulletins (the matters subject t review here) are private in nature in dealing with these matters the prt authrity was nt acting as a federal bard, cmmissin r ther tribunal They were nt acting as a crwn agent The letters f patent f the authrity draw a distinctin between matters n which it acts as a crwn agent and matters which is des nt subsectin 7.2 says the authrity is authrized t manage and perate the city airprt, fr this purpse it is nt a crwn agent The private nature f the prt authrity is anther relevant factr they receive letters f patent, ne cnditins f this is that the authrity was and wuld remain financially self-sufficient (they may purpse private purpses such as revenue generatin) In n way is it wven int the netwrk f gvernment r exercising a pwer as part f that netwrk This is n statute r regulatin that cnstrains the authrity discretin, r that supplies criteria fr decisin making cncerning the subject matter discussed in the bulletins There is n evidence shwing that the matters described in the bulletins are significantly influenced by gvernment r anther public entity There is n legislative prvisins that wuld lead t any such finding f instructins, directin r influence There is n evidence that in particular instance that the matters described in the bulletin fall within the exceptinal categry f cases judicial review des nt lie in these circumstances 48 Applicatin Are decisins f University appeal bdies (e.g., prcedural r substantive appeals f grades) subject t JR? E.g., Khan v University f Ottawa Are decisins f sprts bdies (e.g., eligibility f a player t cmpete) subject t JR? E.g., West Trnt United Ftball Club v Ontari Sccer Assc., 2014 ONSC 5881

50 49 PROCEDURAL FAIRNESS: DUTY OF FAIRNESS The Duty f Fairness READING NOTES Parliament and prvincial legislatures have prescribed detailed prcedural requirements in statutes (r have delegated this task t cabinet r t the administrative decisin makers themselves) The Enabling Statute T ascertain whether it is required by law t affrd an affected individual prcedures and, if s what prcedures, a public authrity must first lk t the terms f its enabling statute Enabling statutes may set ut a detailed list f prcedural requirements that decisin-makers must fllw in making specific decisins Subrdinate Legislatin: Administrative Plicy and Practice Rather than prescribing specific prcedures in an administrative bards enabling statute, legislatures may chse t statutrily delegate t the executive the pwers t enact regulatins r rules that establish prcedural requirements Regulatins and rules made pursuant t statutry authrity, knwn as subrdinate legislatin are binding n thse party s subject t them The main reasn mtivating delegatin f this pwer includes expertise and efficiency The delegatin by legislatures f this rule making pwer t the executive branch, including administrative tribunals, raised a principle-agent prblem (a risk that thse wh are making the rules are nt fllwing the wishes and expectatins f thse wh delegated the pwer T minimize this risk, delegated legislatin is subjected t varius mechanisms f accuntability and scrutiny many jurisdictins in Canada have enacted laws prviding fr legislative scrutiny f subrdinate legislatin

51 At the federal, the Minister f Justice is als statutrily required t verify that statutes and regulatins cmply with the Charter and Bill f Rights Anther accuntability mechanism is public cnsultatin The mst cmmn frm f public cnsultatin is achieved by requiring regulatry bdies r departments, by plicy r statute, t prvide public ntice f regulatry initiatives, including draft regulatins as well as giving an pprtunity t thse parties affected t cmment Finally, a measure f accuntability may be achieved thrugh the judicial review f subrdinate legislatin. The validity f rules regulatins may be challenged where statutrily prescribed mandatry stps fr their effective enactment were nt fllwed Subrdinate legislatin may als be challenged n substantive grunds [just like any ther statute, regulatins and rules must cmply with the charter etc.] They are als subject t judicial review if ultra vires [regulatins must fall within the scpe f and respect the limits prescribed by the regulating-making r rule making authrity cnferred in the delegating statute] There is a strng presumptin that thse statutry pwers that authrizes the making f rules establishing the prcedure f adjudicative bdies require the subrdinate legislatr t cmply with the principles f prcedural fairness There is an implied requirement in the delegating statute that prcedural regulatins and rules made under the statutry pwer cmply with the cmmn law, and the vires f nn-cmpliant subrdinate legislatin is pen t challenge. Plicies and Guidelines Public authrities will frequently issue guidelines and plicies, smetimes regarding the prcedural aspects f decisin-making, which d nt set dwn legally binding requirements The pwer t make these sft law instruments may, but need nt be prvided fr in the authrities enabling statute While nt strictly law, sft law instruments, like guidelines ften play a dminant rle in public authrities decisin-making General Prcedural Statutes Sme Canadian jurisdictins have enacted general prcedural statutes, which cnstitute an additinal surce f prcedural requirements (BC Administrative Tribunals Act) Once triggered, these cdes prescribe cmmn prcedural standards fr the decisin-makers falling within their ambit The scpe f the applicatin f these prcedural cdes may be mdified r limited by a public authrities enabling statue and delegated legislatin, and great care must be taken t read these legislative prcedural surces tgether t determine prcedural entitlements in a given case. These general prcedural statues, when they apply, prvide fr prcedural standards f varying specificity, including rights t reasns fr decisin and the right t make representatins Cmmn Law and Prcedural Fairness If a particular prcedure is nt required by a public authrities enabling statute, valid delegated legislatin r general prcedural statute, r if the prcedure is required nly t a limited extent, the authrity may nnetheless be bligated t prvide an affected party with fuller prcedural prtectin under the principles f cmmn law prcedural fairness Under these judge make principles, a party affected by a public authrity s decisin is entitled t be hard by the authrity in an impartial independent hearing The cncept f prcedural fairness descends frm the rules f natural justice Cpper v Bard Wrks fr Wandswrth District, 1863 Cper v Bard Wrks fr Wandswrth District,

52 Facts: The Metrplish Lcal Managements Act sectin 76 requires anyne intending t build a new huse t give ntice t the bard seven days befre beginning cnstructin, and gave the bard pwer in default f such ntice t cause such huses r buildings t be demlished r altered. Cper was a builder and emplyed t build a huse, he claimed he gave ntice t the bard, the bard denied getting ntive. Cper admitted be began cnstructin within 5 days frm when he said he gave ntice. He built a substantial part f the hme and the bard tre it dwn withut giving him any ntice. Issue Outcme Cper argued that the pwers f the bard are subject t qualificatins; n man is t be deprived f prperty withut having an pprtunity t be heard The bard ught t have given ntice t the plaintiff, and t have allwed him t be heard There is n harm that culd happen t the bard frm hearing the party befre they subjected him t a lss s serius On the ther hand there are many advantages in him being heard they wuld be fulfilling the purpse f the statute Many exercises f pwer f the bard wuld be in the nature f judicial prceedings, certainly whent hey are appealed frm the appellant and respndent are t he heard as parties The bard is nt justified under the statute because they have nt qualified themselves fr the exercise f their pwer by hearing the party t be affected by their decisins 51 Pre-Nichlsn: Cper, 1863 In spite f Cper, test fr the applicatin f natural justice, i.e. what was judicial r quasi-judicial: Where the administrative decisin-maker had legal authrity t determine the rights f subjects and the superadded characteristic f a duty t act judicially. Lrd Hewart, in R. v. Legislative Cmmittee f the Church Assembly, [1928] 1 K.B. 411 Differences between natural justice (NJ) and prcedural fairness (PF)? Nichlsn NJ PF Establishes general duty f fairness in administrative decisin-making: Laskin J. [I]n the sphere f the s-called quasi-judicial the rules f natural justice run, and that in the administrative r executive field there is a general duty f fairness. This duty f fairness invlves smething less than the prcedural prtectin f traditinal natural justice. Finding the cmmn law duty f fairness in legislative silences 3 theries f interpretatin: [Nichlsn] 1. The legislature was frgetful Supplying missin 2. The legislature spke indirectly 3. Cmmn law cnstitutinalism/cmmn law bill f rights Idea f presumptin that leg intended all pwers t be exercised fairly (as part f the rule f law) Nichlsn v Nrfrk Plice Cmmissiners, 1979 The Plice Act, RSO 1970, c 351; Regulatin 680, s 27(b): 27. N chief f plice, cnstable r ther plice fficer is subject t any penalty under this Part except after a hearing and final dispsitin f a charge n appeal as prvided by this Part, r after the time fr appeal has expired, but nthing herein affects the authrity f a bard r cuncil, b) t dispense with the services f any cnstable within eighteen mnths f his becming a cnstable. (p. 78)

53 52 Statutry interpretatin Q hw des majrity fit duty f fairness int these prvisins? Hw is Nichlsn a key pint f departure fr a mre deferential (functinalist) mdel f JR? Hw might it be argued that it is nt an example f a deferential (functinalist) mdel f JR? Hw des this decisin impact the Curt s scpe f review f administrative decisin-makers? Mdern Cmmn Law Dctrines: Dimensins and Limitatins f Prcedural Fairness READING NOTES Fllwing Cper, the curts willingness t impse hearing requirements n decisins makers became cntingent n hw they characterized the nature f their decisin-making pwer Decisins makers exercising judicial r quasi-judicial functins were required t cmply with natural justice, while ministers, public servants, r tribunals exercising s called administrative functins were nt In a series f decisins frm the English curts decided that they wuld als review administrative decisins fr breach f implied prcedural prtectins Nichlsn v Haldimand-Nrflk Reginal Plice Cmmissiners, 1979 Facts: N was a cnstable fr 15 mnths and was discharged by the bard withut being given an pprtunity t make submissins. The Plice Act sectin 27 allwed fr this fr emplyees wh were within 18 mnths f becming a cnstable. N sught a review and succeeded in the divisinal curt, an appeal by the bard was allwed. N then appealed t the SCC. Issue: Can the bard arbitrarily fire him? Outcme A cnstable wh has served mre than 18 mnths is affrded prtectin against arbitrary discipline r discharge thrugh the requirements f ntice and hearing and appellate review But there is n prtectin at all between the bservance f natural justice and the arbitrary remval in that case f a cnstable wh has been wrking less and 18 mnths The ld cmmn law rule that an fficer hlder may be put ut withut reasns r prir ntice ught t be reexamined Althugh N clearly cannt claim the prcedural prtectins affrded t a cnstable wh has wrked mre than 18 mnths service, he cannt be denied any prtectin he shuld be treated fairly n arbitrarily The dne f a pwer must act fairly is a lng settled principle gverning the exercise f discretin, thugh its meaning is inevitably imprecise What rightfully lies behind this emergence is the realizatin that the classificatin f statutry functins as judicial, quasi-judicial r administrative is ften very difficult T endw smene with prcedural prtectins, while denying thers any at all wuld wrk injustices when the results f statutry decisins raise the same serius cnsequences fr thse adversely affected In the present case the cnsequences are serius The appellant shuld have been tld why his service was n lnger required and given an pprtunity, whether rally r in writing t respnd The bard itself, wuld wish t be certain that it had nt made a mistake in sme fact r circumstance which it deemed relevant t its determinatin Once it had the appellants respnse, it wuld be fr the bard t decide n what actin t take, withut it being reviewable elsewhere Status is ffice deserves this minimal prtectin, hwever brief the fficer is held Martland (Dissenting) His statute was that f a cnstable n prbatin The very purpse f the prbatinary perid was t enable the respndent t decide whether it wished t cntinue his service beynd the prbatinary perid Its decisin was purely administrative this being s it was under n duty t explain t the appellant why his services were nt lnger required r give him an pprtunity t respnd

54 53 Cardinal This Curt has affirmed that there is, as a general cmmn law principle, a duty f prcedural fairness lying n every public authrity making an administrative decisin which is nt f a legislative nature and which affects the rights, privileges r interests f an individual. The Duty f Fairness is a stand alne grund f review. [T]he denial f a right t a fair hearing must always render a decisin invalid, whether r nt it may appear t a reviewing curt that the hearing wuld likely have resulted in a different decisin. The right t a fair hearing must be regarded as an independent, unqualified right which finds its essential justificatin in the sense f prcedural justice which any persn affected by an administrative decisin is entitled t have. It is nt fr a curt t deny that right and sense f justice n the basis f speculatin as t what the result might have been had there been a hearing. (para 23) Structure f Analysis 1. Has the the threshld fr the applicatin f the duty been met? The duty f fairness attaches t the exercise f statutry authrity (primarily) and ther exercises f public authrity (e.g., under Crwn prergative). What is exempted frm the duty? Why nt all public decisins/actins? 2. What is the cntent f the duty in the given cntext? Knight v Indian Head Schl Divisin, Threshld test in three parts: i. The nature f the decisin (i.e., admin r leg? sufficiently determinative?) ii. The relatinship between the decisin-making bdy and the individual iii. The effect f the decisin n the individual s rights (privileges, interests..) 2. Duty f fairness applies t public ffice hlders, including thse held at pleasure Office at Pleasure

55 54 P categries f emplyment relatinships 1) Master & Servant 2) Office at Pleasure 3) Remval nly fr cause Why des majrity apply a public duty f fairness t the 2 nd categry? Elabratins n the Mdern Dctrine READING NOTES Canadian case law fllwing Nichlsn was marked by the gradual expansin f the duty f fairness t areas f administrative decisin making, including the decisins f crrectinal authrities affecting the rights, privileges and interests f inmates that had previusly escaped judicial sanctin fr cmpliance with the rules f natural justice The fur majrity in Knight embraced the cnceptin f prcedural fairness as a free-standing cmmn law right, thus eschewing the need t find in the decisins makers enabling statute any prvisin that expressly r impliedly cnferred n the ffice hlder a right t be heard (this Cnceptin has been reiterated by a unanimus SCC since then) The General Rule= is that the duty f fairness applies, but the general rule will yield t clear statutry language r necessary implicatin t the cntrary. Knight v Indian Head Schl Divisin N 19, SCC 1990 Facts: The appellant bard f educatin dismissed the respndent directr f educatin after he refused t accept a renewal f his cntract fr a shrter term that the riginal. He brught an actin fr wrngful dismissal. The SCC held that the bard did nt need t shw cause fr the dismissal either under the cntract f emplyment r the Educatin Act. The respndent then argued that he was entitled t prcedural fairness befre being dismissed. Issue: Was the respndent entitled t prcedural fairness? [Is prcedural fairness due t an ffice-hlder at pleasure?] Hlding Majrity-Prcedural fairness was due BUT the requirements f prcedural fairness had been satisfied Dissent [3]-Held the appellant wed n duty f fairness. Analysis Prcedural Fairness There may be a general right f prcedural fairness, autnmus f the peratin f any statute, depending n cnsiders f three factrs which have been held by the curt t be determinative t such a right Nte-the duty t act fairly des nt depend n dctrines f emplyment law, but stems frm the fact that the emplyer is a public bdy whse pwers are derived frm statute pwers that must be exercised in accrdance with administrative law Three Factrs [Whenever these three elements are fund, there is a general duty t act fairly n a public decisin making bdy] 1. The nature f the decisin There is n lnger a need t distinguish between judicial and quasi-judicial administrative decisins [unless the statute mandates it] The distinctin is less imprtant and is nt helpful [after Nichlsn] But nt all administrative bdies are under a duty t act fairly, decisins f a legislative and general nature can be distinguished in this respect frm act f mre administrative and specific natures (which d n entail such a duty) The finality f the decisin will als be a factr t cnsider a decisin f a preliminary nature will nt in general trigger the duty t act fairly, while a decisin f a mre final nature may In this case, the decisin by the bard was final and specific in nature as such the decisin t dismiss culd pssibility entail the existence f a duty t act fairly n the part f the appellant bard 2. The relatinship between emplyer and emplyee

56 Lrd Reid has classified the pssible emplyment relatinships int three categries: (1) the master and servant relatinship, where there is n duty t act fairly when decisin t terminate the emplyment (2)the ffice held at pleasure, where n duty t act fairly exists, since the emplyer can decide t terminate the emplyee fr n ther reasn than his displeasure (3) the ffice frm which ne cannt be remved, except fr cause where there exists a duty t act fairly n the part f the emplyer In this case the relatinship is nt ne f pure master and servant (since it encmpasses sme element f a public nature) The SCC ntes that the categries are kind f archaic and that the secnd categry des nt autmatically exclude prcedural fairness fr emplyment falling int that class The justificatin fr ffer the ffice hlder at please the right t prcedural fairness is that, whether r nt just cause is necessary t terminate the emplyment, fairness dictates that the administrative bdy making the decisin be cgnizant f all relevant circumstances surrunding the emplyment and its terminatin The pwer exercise by the appellant bard are delegated statutry pwers, which as much as the statutry pwers exercised directly by gvernment shuld be put nly t legitimate use The public has an interest in the prper use f delegated pwers by administrative bdies Since the SCC cncludes that bth f the last tw classes required an administrative bdy t act fairly, the necessity f characterizing the emplyment int ne f the tw is unnecessary The characterizatin is int incmpatible with the impsitin t act fairly n the part f the bard 3. The impact f the decisin n the emplyee There is a right t prcedural fairness nly is the decisin is a significant ne that has an imprtant impact n the individual Varius cases have recgnized that the lss f emplyment against an ffice hlder is a significant decisin that culd justify impsing a duty t act fairly n the administrative decisin making bdy On the whle the nature f the decisin, the relatinship existing between the respndent and appellant and the impact n the respndent f the impugned decisin lead t the cnclusin that there was a general duty t act fairly n the party f the bard in this case. The SCC then lked the relevant statutes t see if there are any prvisin which might verride this presumptin that prcedural fairness applies The SCC lked at the Educatin Act and the Emplyment cntract but fund that there is n explicit prvisin verriding the presumptin that the parties intended prcedural fairness t apply The Cntent f the Duty t Act Fairly Like the principles f natural justice, the cncept f prcedural fairness is variable and its cntent must be decisin in the specifics f each case The clseness f the administrative prcess t the judicial prcess shuld indicate hw much f thse gverning principles shuld be imprted int the realm f administrative decisin making In this case the Sask. Curt f Appeal fund that he basic requirements f the duty t act fairly are the giving f reasns fr the dismissal and a hearing (adding that the cntent will vary case t case). Since the respndent culd be dismissed at please, the cntent f the duty f fairness wuld be minimal, and ntice f reasns fr the appellant f the Bards dissatisfactin with the respndent s emplyment and affrding him with an pprtunity t be heard wuld be sufficient t meet the requirements f fairness Cmpliance with the Duty t Act Fairly Thrugh the negtiatin sessins between the respndent and the bard, the respndent was made fully aware f the grievances f the bard and had ample pprtunity t present his side f the stry Every administrative bdy is a master f its prcedure and need nt assume the trappings f a curt 55

57 The aim is nt prcedural perfectin; but t achieve a certain balance between the need fr the efficiency and predictability f utcme Therefre, in this case it the respndent had knwledge f the reasns fr his dismissal and had an pprtunity t be heard even if there was n structures hearing then prcedural fairness was satisfied He knew the reasns; the requirements f frmal reasns wuld achieve n mre than impse n the bard a purely prcedural requirement (which g against the states principles f flexibility in the administrative prcedure) The bard made itself sufficient available fr discussin thrugh meetings with the respndent and his lawyers, each party s cncerns were made fully aware t the ther DISSENT [Spinka] D nt agree that the bard wed a duty f fairness The appellant was entitled t dismiss the respndent withut cause The relatinship falls int the secnd categry The general rule in this categry is that it des nt attract a duty f prcedural fairness because the emplyer can terminate the emplyment withut cause and withut giving any reasn It wuld be incnsistent with the abve t require the emplyer t give reasns fr terminating the emplyee s emplyment in rder t cmply with the dictates f prcedural fairness It a duty arises, it wuld be f a limited nature The dr is nt cmpletely shut n the existence f a duty f fairness in relatin t the terminatin f an ffice held at pleasure, an exceptin may be made in special cases where a sund basis fr an exceptin is put frward In rder t bring neself int the exceptin t the general rule, an emplyee is the psitin f the respndent must identify the statute, regulatins r cntractual prvisins gverning the relatinship, prvisins which expressly r by necessary implicitly infer upn the emplyee a right t be heard r t make representatins T d s the prvisin f the gverning instruments must be identified with specifically r by implicatin pint t a duty f fairness There is nthing in the Educatin Act that wuld impse a requirement f fairness 56 Dunsmuir v New Brunswick, 2008 Dunsmuir was curt clerk and legal fficer Statutry element -- Psitin established in statute Cntractual element -- Statute set ut that terminatin f emplyment will be gverned by cntract (s. 20, Civil Service Act) A public authrity cannt cntract ut if its statutry duties. But where a dismissal decisin is prperly within the public authrity s pwers and is taken pursuant t a cntract f emplyment, there is n cmpelling public law purpse fr impsing a duty f fairness. (para 106) Why nt? The Dunsmuir Exceptin REAIDNG NOTES In Dunsmuir v New Brunswick, 2008 SCC, the SCC changed the law in relatin t the applicatin f prcedural fairness t the dismissal f public ffice hlders as laid dwn in Knight It held that where a public ffice-hlder s emplyment is gverning by an emplyment cntract, disputes arising t his r her dismissal shuld be reslved accrding t the express r implied terms f the cntract and any applicable statutes and regulatins, just like any cntractual emplyee In ther wrds, a public authrity that dismisses an emplyee pursuant t an emplyment cntract is nt subject t an additinal public law duty f fairness and the public emplyee seeking t challenge the dismissal is limited t rdinary cntractual remedies The curt justified this change n several grunds: It nted it was difficult t determine in practice whether a psitin had a sufficiently strng statutry flavur t be cnsidered an ffice and attract the applicatin f the duty f fairness

58 57 The public law remedy fr vilatin f prcedural fairness in this cntext (the quashing f the terminatin decisins, leading t the emplyee s reinstatement and an entitled t accrued salary and benefit) was less principles that the private law remedy f adequate ntice r pay in lieu f ntice because the amunt f relief depended nt n the emplyee s situatin but n the length f time it tk fr reslutin f their judicial review applicatin The curt als nted that a public law duty f fairness may still apply in the fllwing three circumstances: 1. Where a public emplyee is nt prtected by cntract f emplyment (judges, ministers, fficers wh fulfil cnstitutinal defined rles) 2. Where an fficer hlder is expressly subject t summary dismissal 3. Where a duty f fairness flws by necessary implicatin frm a statutry pwer gverning the emplyment relatinship (including fr example, a statute that prvides fr ntice t emplyees f mtin t dismiss) In Canada v Mavi, the SCC emphasized the limited nature f the Dunsmuir exceptin when it rejected the gvernments argument that n prcedural fairness bligatins were wed t individuals wh had spnsred relatives fr permanent residency where the state sught t recver, pursuant t undertakings signed by the spnsrs, the cst f scial assistance benefits prvided t the spnsred relatives because the undertaking established a cntractual relatinship between spnsrs and the state. SUMMARY OF DEVLOPMENTS Pre Nichlsn Only NJ, applied t quasi-judicial decisin Pst Niclsn/Pre-Cardinal NJ applied t quasi-judicial, PF applied t admin decisin Pst-Cardinal Duty f fairness acrss all administrative decisin making, subject t threshld. Pst-Cardinal Duty f fairness acrss all administrative decisin making, subject t threshld (i.e., n legislative decisin at stake, and decisins are sufficiently determinative) Pst-Knight Duty f fairness extended t public ffice hlders, including thse appinted at pleasure Pst-Dunsmuir Duty f fairness n lnger applies t public ffice hlders wh have cntracts gverning terms f emplyment Mre Reading Ntes The Baker Synthesis By the time the SCC rendered its judgement in Baker, the leading case n prcedural fairness, the basic features f the duty has been set Whether the duty f fairness applies t a particular decisin depends n a variety f cntextual factrs, including the nature f the decisin being made and the prcess fllwed in making it; the nature f the statutry scheme and the terms f the statute pursuant t which the decisin making perates, the imprtance f the decisin t the individual affected, and the legitimate expectatins f the persn challenging the decisin

59 The degree f fairness required fr a particular decisin and the specific prcedural cntent f the duty als hinge n an assessment f these and ther factrs, including deference t the prcedural chices made by the decisin maker Cnstitutinal and Quasi-Cnstitutinal Surces f Prcedures Prcedural rights als receive cnstitutinal prtectin under the Charter and ther quasi-cnstitutinal instruments (including the Bill f Rights) Frm the perspective f a public authrity seeking t determine the prcedures it is legally bligated t prvide t a party wishing t ascertain what prcedures they are wed in a given decisin-making cntext, resrt t cnstitutinal and quasi-cnstitutinal prcedural surces because necessary in three main circumstances 1. Legislatin may expressly certain prcedural safeguards r prvide a lwer level f safeguards, leaving rm fr cmmn law supplementatin. In such cases nly cnstitutinal and quasicnstitutinal nrms may verride the statute and mandate a mre significant prcedural prtectin 2. The cnstitutinal and quasi-cnstitutinal prvisins may establish prcedural claims in circumstances where nne existed previusly at cmmn law 3. These prvisins may mandate a high level f prcedural prtectins than wuld the applicatin f the cmmn law The Canadian Bill f Rights This area f applicatin is cnfined t the federal dmain [n relevant t prvincial statutes r decisin making under prvincial justificatin] The Bill f Rights purprts t be applicable t bth prir and subsequent legislatin in that it declares its primacy ver ther legislatin unless the legislatin expressly prvides that it verrides it This is generally treated as being effective in giving it a quasi-cnstitutinal status Fr the purpses f administrative law the principal prcedural prtectins are fund in sectin 1(a) and 2(e) BELOW 1 It is hereby recgnized and declared that in Canada there have existed and shall cntinue t exist withut discriminatin by reasn f race, natinal rigin, clur, religin r sex, the fllwing human rights and fundamental freedms, namely, (a) the right f the individual t life, liberty, security f the persn and enjyment f prperty, and the right nt t be deprived theref except by due prcess f law; 2 Every law f Canada shall, unless it is expressly declared by an Act f the Parliament f Canada that it shall perate ntwithstanding the Canadian Bill f Rights, be s cnstrued and applied as nt t abrgate, abridge r infringe r t authrize the abrgatin, abridgment r infringement f any f the rights r freedms herein recgnized and declared, and in particular, n law f Canada shall be cnstrued r applied s as t (e) deprive a persn f the right t a fair hearing in accrdance with the principles f fundamental justice fr the determinatin f his rights and bligatins 58 The Charter The main surce f prcedural prtectins in the Charter is sectin 7 7. Everyne has the right t life, liberty and security f the persn and the right nt t be deprived theref except in accrdance with the principles f fundamental justice. As ppsed t sectin 2(e) f the bill f rights (which has been held t be restricted t prcedural claims), this sectin is nt cnditined by any reference t a hearing As a cnsequence, it was held in 1985 by the SCC t have a substantive as well as a prcedural cmpnent

60 Administrative Tribunal Act, SBC 2004, c 45 (ATA) General pwer t make rules respecting practice and prcedure 11 (1) Subject t an enactment applicable t the tribunal, the tribunal has the pwer t cntrl its wn prcesses and may make rules respecting practice and prcedure t facilitate the just and timely reslutin f the matters befre it. (2) Withut limiting subsectin (1), the tribunal may make rules as fllws: (a) respecting the hlding f pre-hearing cnferences, including cnfidential pre-hearing cnferences, and requiring the parties and any interveners t attend a pre-hearing cnference; (b) respecting facilitated settlement prcesses; (c) respecting receipt and disclsure f evidence, including but nt limited t pre-hearing receipt and disclsure and pre-hearing examinatin f a party n ath, affirmatin r by affidavit; (d) respecting the exchange f recrds and dcuments by parties; (e) respecting the filing f written submissins by parties; (f) respecting the filing f admissins by parties; (g) specifying the frm f ntice t be given t a party by anther party r by the tribunal requiring a party t diligently pursue an applicatin and specifying the time within which and the manner in which the party must respnd t the ntice; (h) respecting service and filing f ntices, dcuments and rders, including substituted service; (i) requiring a party t prvide an address fr service r delivery f ntices, dcuments and rders; (i.1) requiring an intervener t prvide an address fr service r delivery f ntices, rders and ther dcuments; (j) prviding that a party's address f recrd is t be treated as an address fr service; (j.1) prviding that an intervener's address f recrd is t be treated as an address fr service; (k) respecting prcedures fr preliminary r interim matters; (l) respecting amendments t an applicatin r respnses t it; (m) respecting the additin f parties t an applicatin; (n) respecting adjurnments; () respecting the extensin r abridgement f time limits prvided fr in the rules; (p) respecting the transcribing r tape recrding f its prceedings and the prcess and fees fr reprductin f a tape recrding if requested by a party; (q) establishing the frms it cnsiders advisable; (r) respecting the jining f applicatins; (s) respecting exclusin f witnesses frm prceedings; (t) respecting the effect f a party's nn-cmpliance with the tribunal's rules; (u) respecting access t and restrictin f access t tribunal dcuments by any persn; (v) respecting witness fees and expenses; (v.1) respecting filing and service f a summns t a witness; (w) respecting applicatins t set aside any summns served by a party; (x) requiring r allwing that a prcess be cnducted electrnically, with r withut cnditins. (3) In an applicatin, the tribunal may waive r mdify ne r mre f its rules in exceptinal circumstances. (4) The tribunal must make accessible t the public any rules f practice and prcedure made under this sectin. (5) Rules fr the tribunal may be different fr different classes f disputes, claims, issues and circumstances 59

61 60 Threshld Test Threshld fr a Duty f Fairness: The Legislative Limit The Legislative Limit Legislative in functin/legislative decisin- maker (by legislative r ther bdies) Legislative in nature (character f decisin Are Cabinet decisins subject t a duty f fairness? What des Cabinet d? In sme functins, Cabinet is frmulating a legislative prpsal, in thers they are acting under authrity delegated by statute. Inuit Tapirisat vs. Curtreille Principle W. Bageht: A cabinet is a cmbining cmmittee --- a hyphen which jins, a buckle which fastens, the legislative part f the state t the executive part f the state. Criticism f nt applying the duty f fairness t Cabinet in its rle in preparing legislative prpsals: It des nt fllw frm the fact that executive actin is required t initiate legislatin that that kind f executive actin is legislative. That a device is needed t ignite an internal-cmbustin engine des nt make the ignitin s functin that f an engine. Fairness-Threshlds READING NOTES Whether general prcedural cdes, cmmn law prcedural fairness, and cnstitutinal and quasi-cnstitutinal surces are available t supplement these prcedures, will depend n whether the threshld fr their applicatin has been met The judge made threshld fr the applicatin f the duty f fairness has been t a varying extent incrprated int the threshlds fr sme general prcedural cdes

62 The Cmmn Law Threshld Histrical Overview Fllwing the curts acceptance in Nichlsn that in sme circumstances administrative decisin-makers wed affected parties a duty f fairness, the highly frmalistic judicial/administrative classificatin exercise lst much f its imprtance in administrative law Fllwing Nichlsn, it remained unclear whether there were tw district levels f prcedural prtectin: natural justice fr decisin-makers exercising judicial and quasi-judicial functins and prcedural fairness fr thse exercising administrative functins; and whether there were any decisins t which prcedural prtectins did nt extend In ther wrds, was there still a threshld, and if s hw was it defined? These questins were explred by the SCC shrtly after Nichlsn Martineau v Matsqui Inmate Disciplinary Bard, 1980 Tw Imprtant Features f the Case: This case invlved prisn discipline, which was a dmain prir t Nichlsn the curts shwered little r nt sympathy t the prcedural claims f inmates The primary cncern here was with a preliminary issue, the allcatin f riginal judicial review jurisdictin between the Trial and Appeal divisins f the Federal Curts FACTS: Tw inmates were disciplined, and alleged that they were nt given a hearing. The made an applicatin fr review t the Federal Curt f Appeal, which was dismissed because the curt did nt have jurisdictin. They als made an applicatin fr certirari in the Trial Divisin, which has jurisdictin t grant the usual remedies fr review (except in cases were the curt f appeal had jurisdictin). OUTCOME SCC appeared t expand the limits f certirari t include enfrcement f prcedural requirements generally. The fact that a decisin maker des nt have a duty t act judicially, with bservance f frmal prcedures which that characterizatin entails, des nt mean that there may nt be a duty t act fairly which invlves imprting smething less that the full panply f cnventinal natural justice rules In General, the curts ught nt t seek t distinguish between the tw cncepts, because drawing a distinctin between the duty t act fairly and a duty t act in accrdance with the rules f natural justice yields unwieldy cnceptual; framewrks An inmate disciplinary bard it nt a curt, it is a tribunal which has t decide rights after hearing evidence, even thugh they are nt bliged t cnduct a judicial prceeding (bserving the prcedural and evidential rules f a curt f law) it is still subject t a duty f fairness and a persn aggrieved thrugh a breach f that duty is entitled t seek relief frm the Federal Curt trial divisin fr certirari With the 1992 amendments t the Federal Curt Act, that particular need t make a distinctin between judicial and administrative functins disappeared The cause f prisners prcedural rights was further advanced in Cardinal v Directr f Kent Institutin, 1985 It was decided that a hearing was required fr a decisin by a prin fficial t keep a prisner dissciated fr security reasns This is because f the serius effect n the prisner The curt has affirmed that there is a general cmmn law principle, a duty f prcedural fairness lying in every public authrity making an administrative decisin which is nt f a legislative nature and which affects the rights, privileges r interests f the individual But the curt held that hlding a hearing in this cause wuld have been futile because there was n pssibility that the penitentiary authrities wuld have been persuaded t change their minds Here we saw the curts almst creating a new threshld legislative vs all ther fuctins (which was further elabrated n by the SCC in Knight) 61

63 Althugh all this was dicta, it des suggest the emergence f a new classificatin, replacing the ld administrative-judicial standff Decisins f a Legislative and General Nature A purely ministerial decisin, n brad grunds f public plicy, will typically affrd the individual n prcedural prtectin, and any attack upn such a decisin will have t be funded upn abuse f discretin. Similarly, public bdies exercising legislative functins may nt be amenable t judicial supervisin. [Martineau] This statement prvides sme warrant fr the statements in Knight that it is nt simply legislative functins that fail t attract a duty f fairness in a prcedural sense, but als decisins f a general nature The decisin f a gvernment t intrduce a bill int the legislature and the legislatures t enact such legislative is nce class f legislative decisins t which a cmmn law duty f prcedure clearly des nt apply such truly legislative decisins must fall belw the prcedural fairness threshld t ensure respect fr the principle f the cnstitutinal separatin f pwers Cabinet and Cabinet Appeals See Canada v Inuit Tapirisat f Canada By-Laws and Rulemaking See Hmex Realty v Wyming Plicy Making 62 Inuit Tapirisat (1980, SCC) 1. Legislative nature f the decisin Let it be said at the utset that the mere fact that a statutry pwer is vested in the Gvernr in Cuncil des nt mean that it is beynd review. If that bdy has failed t bserve a cnditin precedent t the exercise f that pwer, the curt can declare that such purprted exercise is a nullity. (p 108) It is clear that the rders in questin in the case at bar [is] legislative in nature.. n hearing is required in such cases. (p. 111) [T]he dividing line between legislative and administrative functins is nt always easy t draw. (p. 111) 2. Apprach t statutry in (cmpare t Nichlsn; a gd pint t ntice hw admin law is abut statutry interpretatin, and hw unpredictable it can be) (64(1)) and Fed Ct f Appeal (s. 64(2)) rutes Nichlsn - The Plice Act, RSO 1970, c 351, s 27(b): 27. N chief f plice, cnstable r ther plice fficer is subject t any penalty under this Part except after a hearing and final dispsitin f a charge n appeal as prvided by this Part, r after the time fr appeal has expired, but nthing herein affects the authrity f a bard r cuncil, b) t dispense with the services f any cnstable within eighteen mnths f his becming a cnstable;. Inuit Tapirisat: s. 64 f the Natinal Transprtatin Act (bttm f p ) cntrast Gv in Cuncil petitin/review n wn mtin Updating Inuit Tapirisat Canadian Natinal Railway C v Canada (AG), 2014 SCC 40 at para : [38] In Attrney General f Canada v. Inuit Tapirisat f Canada, [1980] 2 S.C.R. 735, this Curt described s. 64 f the Natinal Transprtatin Act, the predecessr prvisin t the current s. 40, as prviding fr an unlimited r uncnditinal right t petitin the Gvernr in Cuncil, a quite different avenue f review frm the right f appeal n questins f law r jurisdictin t the Federal Curt f Appeal (p. 745). Sectin 64 was substantially the same as the current s. 40. [39] As Estey J. explained, [t]here can be fund in s. 64 nthing t qualify the freedm f actin f the Gvernr in Cuncil, r indeed any guidelines, prcedural r substantive, fr the exercise f its functins under subs. (1) (p. 745) (Althugh Estey J. s cnclusin, at p. 759, that the trappings f prcedural fairness culd nt be implied int the prvisin may nt represent the current view f hw natural justice perates in an administrative cntext, the issue f prcedural fairness wed by the Gvernr in Cuncil is nt befre this Curt.) Of curse, the Gvernr in Cuncil is cnstrained by statute and cannt, in the curse f exercising its authrity under s. 40, enact r change a law f

64 Parliament (Public Mbile Inc. v. Canada (Attrney General), 2011 FCA 194, [2011] 3 F.C.R. 344, at para. 29; see Inuit Tapirisat, at p. 752). [emphasis added] Canada (AG) v Inuit Tapirisat f Canada, 1980 FACTS: The Canadian radi-televisin and telecmmunicatins cmmissin had pwer t regulate the rates f utilities, including Bell Canada. The crucial statutry prvisin fr these purpses was sectin 64(1) f the Natinal Transprtatin Act (said the gvernr culd at any time vary r rescind any rder, decisin, rule r regulatin f the cmmissin). In 1976 Bell made an applicatin fr apprval f a rate increase, the Inuit Tapirtsat intervened t ppse parts f the applicatin. They wanted the CRTC t cnditin Bell s rate increase n an bligatin t prvide better services fr nrthern cmmunities. After an unfavrable decisin they appealed t the gvernr in cuncil (the cabinet). The cabinet heard submissin frm the CRTC and Bell. IT was nly given Bell s submissins, and at the Cabinet meeting where the appeal was discussed the minister f cmmunicatins made a recmmendatin t dismiss the appeal, which was accepted. IP then made a mtin t the Federal Curt fr a declaratin that a hearing shuld have been given, r that if a hearing was given it did nt cmply with the principles f natural justice. The gvernment applied fr an applicatin t dismiss the actin (which was granted), an appeal by the IT succeed, then it went t the SCC. ISSUE Is there a duty t bserve natural justice, r at lead a lesser duty f prcedural fairness n the Gvernr in Cuncil when dealing with parties such as IP upn their submissins f a petitin under sectin 64(1)? OUTCOME The mere fact that a statutry pwer is invested in the Gvernr in Cuncil des nt mean that it is beynd review If that bdy has failed t bserve a cnditin precedent t the exercise f that pwer, the Curt can declare that such purprted exercise is a nullity BUT, nt failure t bserve a cnditin precedent is alleged here, that it is cntented that nce validly seized f the respndents petitin the Gvernr in Cuncil did nt fulfil the duty t be fair implicitly impsed upn him The existence f such a duty n lnger depends n classifying the pwer invlved as administrative r quasi-judicial it is still necessary t examine clsely the statutry prvisin in questin in rder t discern whether it makes the decisin maker subject t any rules f prcedural fairness The cmmissin is empwered t apprve all charges fr Bell Canada, in ding s they determine whether the prpsed tariff r tll is just and reasnable and whether they are discriminatry Therefr, the statute delegates the CRTC the functin f apprving telephne services tlls with a directive as t the standards t be applied The pwer rests in the Gvernr in Cuncil t establish rates fr telephne service by the variatin f that rder, decisin, rule r regulatin f the CRTC While the CRTC must perate within a certain framewrk when rendering their decisin, there is n burden n the executive branch (pursuant t sectin 64(1)) with any standards r guidelines in the exercise f its rate review functin [prcedural standards were nt impsed r implied in that sectin] The very nature f the bdy must be taken int accunt in assessing the technique f review which has been adpted by the Gvernr in Cuncil Sectin 64 places n limitatin f the GC in the adptin f prcedures fr the hearing f petitins In the past the GC has prceeded by way f an ral hearing in which a petitiner and cntending parties culd participate But the size ur f cuntry nw makes that impractical While it is true that the duty t bserve prcedural fairness will nt be implied in every case, is it always a matter f statutry interpretatin and cnstruing the statue as a whle in rder t see t what degree if any the legislatrs intended the principle t apply The wrding f this statute makes it clear that the GC may act at any time, he may rescind r vary any decisin, rule r regulatin in his discretin The guideline mandated by parliament t the CRTC are nt repeated expressly r by implicatin t sectin 64 The discretin f the GC is cmplete prvided he bserves the jurisdictinal bundaries f sectin 64 Parliament has reserved the final applicatin f this plicy t the executive gvernment (GC) given this interpretatin there is nt need fr the GC t give reasns fr his decisin, r hld any hearing r even acknwledge the receipt f a petitin The drawing between legislative and administrative functins is nt always clear BUT Where the executive branch has been assigned a functin perfrmable in the past by the legislature itself and where the subject matter is nt an individual cncern r a right unique t the petitiner r appellant, different cnsideratins may arise. 63

65 The Fact that the functin has been assigned t a tier f agencies (CRTC and then the GC) des nt alter the plitical science pathlgy f the case in such circumstances the curt may fall back n the basic jurisdictinal supervisry rle and in ding s cnstrue the statue t determine whether the GC has perfrmed its functins within its bundaries that parliament has granted 64 Curtreille v Canada Argument that Mikisew Cree shuld have been cnsulted (s. 35 duty) prir t intrductin f Omnibus Bills that gutted federal envirnmental prtectins (e.g., fisheries habitat, and # f navigable rivers under envir assessment) Main Issue: Can DTC apply t legislative decisins? Wn at Trial Lst n Appeal (FCA, 2016) Issue Des the Crwn have a duty t cnsult when cntemplating and intrducing legislatin that may adversely impact abriginal rights? Hlding In its recent decisin in Canada (Gvernr General in Cuncil) v. Curtreille, the Federal Curt f Appeal (Curt) said n Backgrund Facts Chief Steve Curtreille, n behalf f himself and the members f the Mikisew Cree First Natin (Mikisew Cree), filed a judicial review applicatin seeking declaratins that the federal gvernment had a duty t cnsult the Mikisew Cree when it develped and intrduced tw mnibus bills that reduced federal envirnmental versight f prjects that had the ptential t negatively affect the Mikisew Cree s treaty rights The mnibus bills reduced the types f prjects that were subject t federal envirnmental assessment and the federal gvernment s legal versight f varius activities. Mikisew Cree argued that the reductin in federal envirnmental versight culd adversely affect their treaty rights t hunt, fish and trap, and therefre the federal gvernment shuld have cnsulted with them during the develpment f the legislatin At Trial In the Federal Curt Trial Divisin, Justice Hughes rejected the majrity f the Mikisew Cree s arguments. Hwever, he still fund that certain prvisins f the Navigatin Prtectin Act and the Fisheries Act triggered the duty t cnsult. As a result, Justice Hughes fund that the federal gvernment had a duty t give ntice t the Mikisew Cree and t prvide them with a reasnable pprtunity t make submissins n these prpsed prvisins. Federal Curt f Appeal Decisin Mikisew Cree were careful t frame their applicatin as a request fr judicial review f the prcess undertaken by varius ministers prir t the drafting and presentatin f Bills C-38 and C-45 t Parliament Framing the applicatin in this way was imprtant t ensure that the Curt wuld have jurisdictin ver the applicatin. Under sectin 18 f the Federal Curts Act, the Curt has exclusive jurisdictin t grant declaratry relief against any federal bard, cmmissin r ther tribunal. Hwever, under subsectin 2(2) f the Federal Curts Act, a federal bard, cmmissin r ther tribunal des nt include the Senate, Huse f Cmmns, r any cmmittee r member f either Huse. The Mikisew Cree argued that a distinctin can be drawn between ministers acting as plicy-makers and ministers acting as legislatrs, and that the legislative prcess can be divided between a plicy develpment phase and a purely legislative phase f the prcess. They sught judicial review f the ministers plicy-making decisins, they argued that their applicatin was nt barred by the prvisins f the Federal Curts Act

66 the federal gvernment argued that the legislative prcess is indivisible, such that every step that precedes the intrductin f a bill int Parliament is an aspect f the legislative prcess and therefre immune frm judicial review The majrity f the Curt (Justices De Mntigny and Webb) agreed with the psitin f the federal gvernment and fund that sectin 18 f the Federal Curts Act precluded the Curt frm judicially reviewing the legislative prcess, including any plicy develpment aspect f that prcess. Separatin f Pwers if there is ne principle that is beynd any dubt, it is that curts will nt supervise the legislative prcess and will prvide n relief until a bill has been enacted. On this basis, while the majrity expressed that it is gd plitics t engage stakehlders such as First Natins n legislative initiatives that might affect them, and that, fllwing the frmal adptin f a statute, cnsultatin prir t the adptin f that statute might be a key factr in determining whether the infringement f an abriginal r treaty right is justified, impsing a duty t cnsult wuld cnstitute undue judicial interference n Parliament s law-making functin, thus cmprmising the svereignty f Parliament. SCC? Will they hear the case? the dctrine f the separatin f pwers is well-recgnized and has been relied n by the SCC befre. Hwever, as als recgnized by the majrity, there is a clear tensin in the case law between the dctrine f the separatin f pwers and the duty t cnsult that has develped as a result f sectin 35 f the Cnstitutin Act, Canadian Dctrs fr Refugee Care v Canada (AG), (2014, FC) Changes t the Interim Federal Health Insurance Prgram (IFHP), which prvided health insurance t nn-citizen newcmers as bridge till eligible fr Prvincial heath insurance N duty f fairness b/c decisin was legislative Hw was decisin made? Wh made it? Hw did FC characterize the decisin as legislative? What mattered? Hmex Realty v Wyming (Village) (1980) Hw is the bylaw in issue legislative in character? Hw is it nt legislative in character? Nte: Anther example f Cts remedial discretin being exercised based n the cnduct f the parties (Hmex) Hmex Realty v Wyming, 1980 SCC FACTS: the municipality and H quarrelled abut the bligatin t instil services int a subdivisin wned by H. Withut giving ntice t H the municipality made a bylaw under the Planning Act designating the plan as a plan deemed nt be a registered plan f a subdivisin. The effects f this was that the lts in the subdivisin culd nt be cnveyed unless a new plan was registered, r cnsents were btained frm the cmmittee f adjustments f the municipality (an in either way the municipality wuld be able t impse cnditins). H made an applicatin fr review t quash the bylaw and succeeded. An appeal by the municipality als succeeded. H appealed t the SCC ISSUE OUTCOME Dicksn (DISSENT) There is a lng line f authrity which establishes that befre a public bdy can limit the prperty rights f citizens it must first give the individual cncerned an pprtunity t be heard Where statutry bdies seek t limit prperty rights, the curts will imply a right t be heard, unless there is an express declaratin t the cntrary

67 Where the bylaws in questin directly affect the land r prperty f specified individual the curts have implied a cmmn law right t be heard, in this case the by laws directly and detrimentally affected H A legislative functin? The CA emphasised the legislative character f the actins perfrmed by the Wyming, they held that the municipality is dealing with the public interest and the functin is legislative in nature and nt right t a hearing can be implied SCC des nt accept this The right t an hearing des nt spring frm that fact that there were cmpeting grups r individuals, it resulted frm the fact that the by law interferes with private prperty rights n ne wner The presence f a cmpelling public interest des nt alne abrgate r diminish a citizen right t prcedural prtectin The private prperty interest f H was at stake, the public interest can be served by affrding the private interest full disclsure and a fair pprtunity t be heard There is n reasn by the private interest shuld yield t the public ne One cannt label smething as legislative fr the purpses f dispensing with fairness Once it is clear that rights are being affected, it is necessary t determine the apprpriate prcedural standard that must be met by the statutry bdy Flexibility is required here, it is a spectrum A purely ministerial decisin n brad grunds f public plicy will typically affrd the individual little r n prcedural prtectin On the ther hand, a functin the appraches the judicial end f the spectrum will entail substantial prcedural safeguards, particularly when persnal r prperty rights are targeting Yu must lk t the facts f each case The CA nted that the municipality was acting in what is cnceived t be the public interest, but the bylaws d nt have a general wide applicatin, it affects H directly and was aimed at limiting H s rights H was entitled t sme prcedural safeguards in these circumstances At a minimum they were under a duty t give H ntice f the prpsed bylaws and the pprtunity t be heard Dickinsn fund that the hearing requirement had nt been satisfied MAJORITY The majrity fund that H was nt entitled t relief because f the incnsistent and evasive cnduct f its principles 66 SUMMARY THE LEGISLATIVE LIMIT Legislative in functin (by legislative bdies) Cabinet s rle in intrducing legislatin t legislative assembly: re CAP, Mikisew Cree (duty t cnsult rather than duty f fairness) Schl Bard (delegated law-maker) clsing schls in Bezaire Legislative in nature (character f decisin) Plicy-based decisin f cabinet is leg in nature: Inuit Tapirisat (query: admin decisin seen as leg b/c cabinet is decisin-maker?) Leg bdy making nn-leg decisin: Hmex Realty Des we need a threshld test? The ultimate gal f crafting the prcedural framewrk apprpriate t each decisin made can be better achieved if we ttally abandn the threshld stage. The presumptin wuld be that, in the case f legislative silence, fairness applies t all decisins made by the administratin, unless specifically mdified by statute r cntract, and then the remaining task is the determinatin f the specifics f prcedure in any given case, frm full prcedural prtectin t nthingness. Drpping the threshld stage wuld ensure asking the real questin: in the circumstances f the case and given, ntably, the cnsequences f the decisin fr the individual, what is the apprpriate set f prcedures t be adpted?

68 67 Genevieve Cartier, Prcedural Fairness in Legislative Functins: The End f Judicial Abstinence? (2003) 53 U.T.L.J. 217 Shuld the duty f fairness apply t legislative decisins? (r d we need a threshld test) Argument against extending the duty: - This limit is necessary t the preservatin f the integrity f legislative prcess under frmal mdel f separatin f pwers. - Maintaining frmal separatin f pwers critical t demcratic legitimacy. Argument fr extending the duty: - Classificatin desn t wrk; institutins are nt amenable t frmal definitins. - - Classificatin is a surce f injustice: T endw sme with prcedural prtectin while denying thers any at all wuld wrk injustice when the results f statutry decisins raise the same serius cnsequences fr thse adversely affected, regardless f the classificatin f the functin in questin. (Laskin in Nichlsn, text p. 110) - Demcracy better served by cntextual apprach, i.e. Did the decisin-maker act fairly in the circumstances? Threshld fr a Duty f Fairness-Finality f Decisin Re Abel and Advisry Bard (1979, ONCA) Advisry Bard (in BC, currently, the Mental Health Review Bard) cnducts annual reviews f patients held in psychiatric facilities after being fund nt guilty f criminal charges by reasn f mental illness. Wh is the decisin maker? What is the decisin? (Decisin in the statute, decisin under review in the case) A duty f fairness is applied. Why? And what is the effect/what des a duty f fairness get the patients? What is the rule regarding the duty f fairness applying t nn-dispsitive decisins? Re Abel and Advisry Review Bard, FACTS: The advisry bard was created by rder in cuncil under the Mental Health Act. Its majr functin was t review annually all patients wh ere cnfined in psychiatric institutins under warrant f the lieutenant Gvernr after being charged with criminal ffences and then fund nt guilty by reasn n insanity. It made a reprt abut each patient t the lieutenant gvernr, which included any recmmendatins fr release. The lawyers f sme patients request disclsure f the files kept by the institutins abut the patients, especially thse submitted t the bard. The request was refused. At the hearing the lawyers asked fr disclsure f the reprts, the chairman refused n the grunds that it had n authrity and an applicatin fr review was made. ISSUE OUTCOME The LG is nt bund t act upn the recmmendatins in the reprt, but a patient s hpes f release lies in a favurable recmmendatin by the bard There is n questin that the bard will have influence, and if cunsel seeks t represent their clients prperly it is understandable why they want the reprts This is definitely a case where even thugh nly recmmendatins are made the rules shuld be applied, because a gd recmmendatin if virtually a patient s nly hpe f release The chairman failed t cnsider the questin f whether the reprts shuld be released and answer it accrding t the prper principles The applicatin must be granted, the decisin f the chairman t refuse t rder prductin f the reprts is quashed, and this matter is remitted t the bard fr recnsideratin in accrdance with set ut abve (I didn t see what principles he is talking abut?) The bligatin t act fairly lacks precisin in its definitin, and it n dubt invlves smething less than the strict applicatin f natural justice but it may in sme circumstances invlves the applicatin f sme r all f thse rules

69 A cuple f ther cntexts where nn-dispsitive decisins are cmmn Cmmissins f Inquiry E.g., Gmery inquiry int the spnsrship scandal Envirnmental assessment Standardly set up as an assessment dne by an arm s length (smetimes c-management) bard that recmmends decisin with cnditins t cabinet. Usual apprach (PF applies) changed under 2012 changes t federal EA (mnibus bills). See Nrthern Gateway JR INSPECTIONS AND RECOMMENDATIONS (Reading Ntes) In the traditinal dctrine, tw functins were distinctive: investigating and recmmending Until the late 1970 s the dctrine was clear, n hearings were required, thus prpsitin was a prduct f the general dctrine abut the threshld (the functins were nt judicial) Guay v Lafleaur, 1965 L was authrized under the Incme Tax Act t investigate the financial affairs fa number f taxpayers, including G L began t examine witnesses, and G requested t be present and represented by cunsel during these examinatins, L refused and G sught an injunctin The SCC held that G had n right t a hearing because the functin was purely administrative L was nt deciding r adjudicating Re Training Schls Advisry Bard, 1971 The Training Schls Advisry Bard was established by regulatins t give the minister r crrectinal services advice abut the exercise f a pwer t rder terminatin f wardship After the bard refused t recmmend terminatin f the wardship f a girl her mther sught disclsure f reprts frm the bard Her claim failed because the bard did nt decide anything We als saw lingering effects f this jurisprudence in Knight, where the SCC states that the decisin f preliminary nature will nt in general trigger the duty t act fairly, whereas a decisin f a mre final nature may have that effect EMERGENCIES (Reading Ntes) On ccasin, dispute the fact that the basis fr actin will be the cnduct n an individual and the cnsequence f that actin the impsitin f sanctins r diminutin in prperty rights there will be n requirements f a prir hearing That is in the case f emergencies The Queen v Randlph, 1966 The culd held that an interim rder withdrawing the prvisins f mail services t an individual culd be made withut hearing when the statutry basis fr making that decisin was a belief that the mails were being used fr criminal purpses Nte that the curt is nt sanctining a general rule f after-the-event hearings in administrative segregatin cases Whether initial actin withut a hearing is justified depends n an assessment f whether there is genuine a need fr such an actin Still, it is highly likely that the curt will pay cnsiderable deference t the relevant authrity s judgement as t the urgency f the situatin On ccasin the prvisin f a subsequent hearing after the taking f emergency actin may be redundant, fr example where prperty is destryed There may als be ccasins n which emergency actin is taken n the basis n infrmatin that cannt be revealed t the affected persn either befre r after the event 68

70 69 Legitimate Expectatins Legitimate Expectatins Building n Dctrinal Develpments in England Cnduct-based surce f due prcess. 2 branches f applicatin: Situatins between applicatin fr a privilege and prcess t remve f a privilege; e.g. lng-standing license hlder has a legitimate expectatin f renewal. Expectatins f prcedural rights based n representatins made by/cnduct f public fficials (undertakings): L. Denning in R. v. Liverpl Taxi (1972) (p ): Prmises made by muni fficials nt t increase # f taxi licenses withut a hearing. And then nt t establish increase unless by way f private Act f Parliament. And then municipality did just that. Denning implied prcedural prtectins. N legislative fundatin. Legitimate Expectatins in CANADA A stp-gap where prcedural prtectins nt prvided fr in legislatin, r thrugh general duty f fairness (Baker) Gives rise nly t prcedural rights as ppsed t substantive rights, even when LE is abut a substantive utcme (CAP, Baker) Althugh a distinct surce f prcedural rights (based n cnduct f public fficials), it is part f the analysis f the cntent f the duty f fairness (Baker). Cnduct f public fficials giving rise t a LE may include: Express prmises and representatins that d nt cnflict with statutry duties (Mavi at para 68. Als Aptex and Agraira) Regular practices (i.e., if CIC always held an ral hearing fr H&C decisins..) Agency chices & sft law (i.e., plicy guides) (Agraira) Expressins f gv t plicy by the executive such as signing internatinal agmnts (e.g. Baker at para 29, nt decided; Suresh) READING NOTES In certain circumstances, prcedures will be required by reasn f expectatins generated in an affected persn and nt be entirely cntingent n a detached analysis f the statutry pwer in questin One particular reasn can be lcated in the dctrinal psitin f the British curts fllwing Ridge v Baldwin The British curts appeared t maintain the psitin that such prtectins attached tt eh statutry pwer in questin, as ppsed t particular exercises f it In ther wrds, prcedural fairness was an all r nthing prpsitin either it applied every time a pwer was being exercised f nt at all Legitimate expectatins began t emerge in the English case law the speeches in Ridge v Baldwin shw that an administrative bdy may, in a prper case, be bund t give a persn wh is affected by their decisin an pprtunity f making representatins. It all depends n whether he has sme right r interest, r I wuld add, sme legitimate expectatin f which it wuld nt be fair t deprive him withut hearing what he had t say Schmidt v Secretary State fr Hme Affairs, 1969 Initially, the cncept was ne that was treated as just anther meaning f expressing the ntin that the applicants stake in the utcme was ne that indicated the need fr prcedural fairness But, shrtly after Schmidt Lrd Denning gave the cncept a rather different cntent R v Liverpl Crpratin

71 In this case municipal fficials have given express undertakings t the assciatin that the number f taxi licenses wuld nt be increased withut a hearing, and subsequently fllwing a hearing that there wuld be n increase unless a private Act f Parliament was prcured This was the kind f plicy decisin where even after the emergence f the prcedural fairness dctrine, curts were unlikely t require the affrding f participatry pprtunities t affected cnstituencies But, lrd Denning grunded an entitlement fr such pprtunity n the particular factual circumstances and thereby laid the fundatin fr the mdern dctrine f legitimate expectatins An expectatin f hearing arising ut f express representatins, a practice f hlding such hearings r a cmbinatin f the tw When the dctrine is applied This dctrine has been acknwledged by the SCC in 7 cases, and successful invked in the tw mst recent nes It affrds a party affected by the decisin f a public fficial the pprtunity t make representatins in circumstances in which there therwise wuld be n such pprtunity the curt supplied the missins where based n the cnduct f the public fficial a party has been led t believe that his r her rights wuld nt be affected withut cnsultatin If the dctrine f legitimate expectatins is t play a significant rle in Canadian law, it will mst bviusly be as a surrgate t the failure f the cnventinal cmmn law principles t prvide fr the impsitin f prcedural entitlements in the cntext f rule making and bradly based plicy decisins 70 LEGITIMATE EXPECTATIONS AND LEGISLTIVE DECISIONS Reference re Canadian Assistance Plan (BC), 1991 What is the decisin challenged? What is the type f decisin is it (characterizatin)? Why desn t the curt apply a LE t require cnsultatin with the prvinces befre intrducing the bill t Parliament? Reference re Canada Assistance Plan (BC), 1991 SCC FACTS: The Canadian Assistance Plan (a federal statute) authrized the gvernment f Canada t enter int agreements with the prvince fr sharing the csts f prvincial scial assistance and welfare prgrams. Sectin 8 f the plan prvided that these agreements wuld cntinue in frce fr as lng as the relevant prvincial law was in peratin, subject t terminatin f cnsent, r unilaterally by either party n ne year s ntice. The federal gvernment intrduced a bill that limited the increase in his financial cntributins t BC, Alberta and Ontari t a figure belw that prvided fr in the plan. N prir ntice has been given. BC referred a questin t the curt. ISSUE: Whether the gvernment was precluded frm intrducing the bill by virtue f the legitimate expectatin that amendments wuld nly be made t the agreements by cnsent? OUTCOME If the dctrine f legitimate expectatin required cnsent, and nt merely cnsultatin then it wuld be the surce f a substantive right (in this case a substantive right t vet the prpsed federal legislatin) There is n supprt in Canadian r English cases fr the psitin that the dctrine f legitimate expectatins can create substantive rights When it is applicable, it can create a right t make representatins r be cnsulted The rules gverning prcedural fairness de nt apply t a bdy exercising purely legislative functins The frmatin and intrductin f a bill are part f the legislative prcess with which the curts will nt meddle Parliamentary gvernment wuld be paralyzed if the dctrine f legitimate expectatins culd be applied t prevent the gvernment frm intrducing legislatin Such expectatins might be created by statements during an electin campaign The business f gvernment wuld be stalled while the applicatin f the dctrine and its effect was argued in curt It is fundamental t ur system f gvernment that a gvernment is nt bund by the undertakings f their predecessr

72 71 A restraint n the executive in the intrductin f legislatin is a fetter n the svereignty f parliament itself This is particularly true when the restrain relates t the intrductin f a mney bill (by virtue f sectin 52 f the cnstitutin, such a bill nly be intrduced n recmmendatin f the Gvernr General wh by cnventin acts n advice frm cabinet The legal effect f what the respndent is attempting t impugn is f nt cnsequence t the bligatins between Canada and BC The recmmendatin and intrductin f the bill is a legislative prcess Aptex, [2000] 4 FCR 264 (CA) What is the decisin challenged? What is the type f decisin is it (characterizatin)? Cntrast Re CAP, Curtreille Evans JA (wn reasns, agrees in result): What is the difference between the law (rule) making functin f cabinet in this case vs. Re CAP Hw is a LE different frm a duty f fairness? What is the difference f the values prmted? Why des the LE argument fail fr even Evans JA? Aptex Inc. v Canada (AG), 2000 FC FACTS: A is a manufacture f a generic drug, they sught permissin under the Patent Act t manufacture a drug N. Befre it had received its permissin, the federal cabinet made regulatins under the Patent Act that enabled the patent hlder fr the drug t seek an rder prhibiting the minister f natinal health and welfare frm issuing such permissin befre the patent expiry. On judicial review A challenged the validity f the new regulatin n several grunds including that it had a legitimate expectatin f cnsultatin prir t the prmulgatin f the regulatin. The federal minister f cnsumer and crprate affairs had said in a letter that rest assured yu will be cnsulted befre any such regulatins are established. A majrity f the FCA dismissed this argument n the basis that the ministers undertaking in the circumstances culd nt bind the gvernment in cuncil. BUT the fllwing biter cmments expressed serius reservatins. Evans J held that the legitimate expectatin dctrine culd in principle apply t the Cabinet prmulgatin f regulatins. EVANS J In the absence f any statutry requirement f cnsultatin prir t the prmulgatin f regulatins, the duty f fairness is the nly legal surce fr a legal bligatin t cnsult The duty f fairness des nt apply t the exercise f pwers f a legislative nature (which wuld include the regulatins impugned in this case) Hwever, it des nt necessarily fllw that subrdinate legislatin can lawfully be made in breach f a categrical and specific assurance f prir cnsultatin given t an individual by a respnsible minister f the crwn in the curse f discharging department business In the case the curt has said the dctrine f legitimate expectatins is based n the premise that it is generally unfair fr the decisin-makers t g back n a prcedural undertaking this statement was nt limited t instances where the effect f applying the legitimate expectatins dctrine is simply t enhance the cntent f the duty f fairness in a situatin where it wuld therwise have impsed sme, but lesser, participatry rights There are decisins that hld that the dctrine f legitimate expectatins may apply t a public authrity that represents that it will fllw certain prcedure befre exercising that pwer t which the duty f fairness wuld prbably nt therwise extend, including thse f a plicy r legislative nature Nte that nt all decisins pint in this directin Other cmmn law jurisdictins have been prepared t apply the legitimate expectatins dctrine in its prcedural sense t the exercise f rule making pwers, especially where (as it is here) the delegated legislatin applies mre immediately t a defined grup The interests prtected by this dctrine are nt the same as thse prtected by a general duty t affrd an pprtunity t thse affected t participate in the rule-making exercise Hlding gvernment t a prcedural undertaking that was slemnly given n its behalf t an individual is mre a matter f individual justice

73 Where the legitimate expectatin arises frm a prmise r undertaking, categrically and specifically given t an individual r a defined grup, the ratinale fr hlding the gvernment t it derives frm the individuals reliance that in the absence f cmpelling reasns fr nt ding s the gvernment will act with the basic decency f keeping that prmise The interest underlying the dctrine are the nn-discriminatry applicatin in public administratin f the prcedural nrms established by past practice r published guidelines, and the prtectin f the individual frm abuse f pwer thrugh the breach f an undertaking The dctrine is nt simply a branch f the duty prcedural fairness hence there is n reasn t limit its reach t the exercise f statutry pwers t which the duty applies On the ther hand, as with the duty f fairness, a beach will lead t the impsitin f prcedural duties, generally f a particaptry nature, n the persn r bdy empwered t take sme administrative actin rather than requiring a particular substantive utcme t the exercise f pwer The dctrine applied in principle t delegated legislatin pwers as t create participatry rights when nne wuld therwise arise (prvided that hnring that expectatin wuld nt breach sme ther legal duty, r unduly delay the enactment f regulatins fr which there was a demnstrably urgent need) A curt say set aside, r declare invalid subrdinate legislatin made in breach f a legal duty t cnsult **the duty f legitimate expectatin did nt arise n the facts f this case In this case the cabinet had already apprved the regulatins Thus the minister s assurance did nt create a legitimate expectatin DECARY J He is reluctant t have the judiciary mve in and impse prcedural restrictins f its wn creatin n the prcess leading t the making f regulatins It wuld be an extrardinary remedy t struck dwn regulatins made by the Gvernr in cuncil slely because f a failure f a minister f the crwn t fulfil a prmise f cnsultatin 72 LEGITIMATE EXPECTATIONS AND ADMINISTRATIVE DECISIONS, AND LINE BETWEEN PROCESS & SUBSTNACE Canada v Mavi, 2011 Standard required t rely n a LE as a surce f prcedural rights: Representatins must be clear, unambiguus, unqualified (para 68) Gvernment representatins will give rise t an LE when had they been made in the cntext f a private law cntract, they wuld be sufficiently certain t be capable f enfrcement. (para 69) What was the significance f finding an LE in the decisin? Canada (AG) v Mavi, 2011 SCC FACTS: M and several thers had spnsred relatives fr permanent residency in Canada. They had signed undertakings that required them t reimburse the gvernment fr the csts f benefits prvided as scial assistance t the spnsred family member. The gvernment f Ontari undertk prceedings against the spnsrs t recver the csts f scial assistance prvided t the spnsred relatives, the spnsrs argued they were wned prcedural fairness; in particular ntice f the gvernments intentin t cllect n the debt and an pprtunity t make representatins f whether cllected might be waived r delayed. The SCC determined that althugh the impugned decisin was a straightfrward debt cllectins and that the statute clearly indicated parliament intended t avid a cmplicated administrative review prcess, the decisin was still final and specific in nature and given the significant amunt f spnsrship debt had a cnsiderable effect n the spnsrs. ISSUE Des the dctrine f legitimate expectatins apply? OUTCOME Binnie

74 In theses circumstances the cntent f the duty f prcedural fairness des nt require an elabrate adjudicative prcess, but it des blige the gvernment prir t filing a certificate f debt t: 1. Ntify the spnsrs at their last knwn address 2. Offrd the spnsr an pprtunity within a limited time t explain in writing their relevant persnal financial circumstances 3. T cnsider any relevant circumstances brught t its attentin 4. T ntify the spnsr f the gvernments decisin In this case there is n duty t give reasns Did the spnsrs have a legitimate expectatin f ntice and cnsultatin based n the language f their undertaking? The Dctrine f Legitimate Expectatins Where a gvernment fficial makes representatins within the scpe f his r her authrity t an individual abut an administrative prcess that the gvernment will fllw, and the representatins the gave rise t the legitimate expectatins are clear and unambiguus the unqualified, the gvernment may be held t its wrd prvided its representatins are prcedural in nature and d nt cnflict with the decisin maker s statutry duty (prf f reliance is nt a requisite) Generally speaking, the gvernments representatins will be cnsidered sufficiently precise fr the purpses f the dctrine if they have been made in the cntext f a private law cntract, they wuld be sufficiently certain t be capable f enfrcement Applicatin It is clear that n representatins where made that the debt will be cancelled, even when the minister exercises their discretin t defer enfrcement The terms f the IRPA undertakings supprt the psitin f the AG that the debt is nt frgiven, they als supprt the spnsrs cntentin f a gvernment representatin t them that there exists a discretin nt t take enfrcement actin in a situatin f abuse r in ther apprpriate circumstances Such representatins d nt cnflict with any statutry duty and are sufficiently clear t preclude the gvernment frm denying the spnsrs the existence f discretin t defer enfrcement. Legitimate expectatins were created by the wrding f these undertakings It is nt pen t the bureaucracy t prceed withut ntice and withut permitting the spnsrs t make a care fr deferral The SCC held that the plicies adpted by Ontari in respect f the cllectin f spnsrship debts, which allwed fr ntice and representatins by the spnsrs satisfied their legitimate expectatins and met the basic requirements f prcedural fairness. NOTE The SCC had determined that the duty f prcedural fairness applies because the final and specific nature f the decisin t enfrce spnsrship debt as well as the significant impact n the spnsrs They decided t elabrate n legitimate expectatins in this judgement Accrdingly, its finding that the spnsrs had a legitimate expectatin f ntice and an pprtunity t make a case fr deferral appears t play t rle f cnfirming the prcedures that the culd had already determined were required by the duty f fairness 73 Agraira (2013, SCC) Minister s decisin letter (reasns) (at para 13): After having reviewed and cnsidered the material and evidence submitted in its entirety as well as specifically cnsidering these issues: [applicant was invlved with Libyan Natinal Salvatin Frnt, which was knwn t be invlved in terrrist vilence ]. It is nt in the natinal interest t admit individuals wh have had sustained cntact with knwn terrrist and/r terrrist-cnnected rganizatins. Ministerial relief is denied. Is it clear that humanitarian & cmpassinate grunds were cnsidered by the Minister? What prcedural steps were taken in the decisin under review? What was the basis fr the LE claims? Were LE established? And were any LE satisfied? Had LE nt been satisfied, what might have been the increased cntent f the duty f fairness?

75 74 Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC FACTS: A was fund t be inadmissible t Canada under sectin 34(1)(f) f the Immigratin and Refugee Prtectin Act because he had nce been a member f the Libyan Natinal Salvatin Frnt, which was cnsidered by immigratin Canada t be a terrrist rganizatin. Under sectin 35(2) the minister f public safety and emergency preparedness may make an exceptin if the permanent resident r freign natinal fund t be inadmissible satisfies the minister that their presence in Canada wuld nt be detrimental t Canada natinal interest a term n defined in the statute. The citizenship and immigratin Canada had prepared guidelines setting ut the prcess by which applicatins fr ministerial relief were t be evaluated and setting ut relevant factrs. The minister rejected A s applicatin fr relief and prvided written reasns that fcused n this invlvement then the LNSF. A sught a judicial review. He argued the guidelines had created an expectatin that factrs extrinsic t natinal security wuld be cnsidered. ISSUE Was the decisin unfair, and did it fail t meet the applicant legitimate expectatins? OUTCOME Lebel J The dctrine (legitimate expectatins) was given a strng fundatin in Canadian administrative law in Baker, in which is was held t be a factr t be applied in determining what is required by the cmmn law duty f fairness It s public authrity has made representatins abut the prcedure it will fllw in making a particular decisin, r if it has cnsistently adhered t certain prcedural practices in the past in making such a decisin, the scpe f the duty f prcedural fairness, wed t the fact that the affected persn will be brader than it therwise wuld have been. The practice r cnduct said t give rise t the reasnable expectatin must be clear unambiguus and unqualified! In Mavi, Binnie explained what is meant by clear and unambiguus and unqualified Generally speaking, gvernment representatins will be cnsidered sufficiently precise fr the purpse f the dctrine f legitimate expectatins if, had they been made in the cntext f a private cmmn law cntract, they wuld be sufficiently certain t be capable f enfrcement BUT it cannt give rise t substantive rights On ther wrds, where the cnditins fr its applicatin are satisfied, the curt may nly grant apprpriate prcedural remedies t respnd t the legitimate expectatin In this case, the guideline creates a clear and unambiguus and unqualified prcedural framewrk fr the handling f relief applicatins, and thus a legitimate expectatin that the frame-wrk wuld be fllwed They were published in the CIC, they were used by emplyees, they were publicly available Thus, the appellant culd reasnably expect that his applicatin wuld be dealt with in accrdance with the prcess set ut in them [The prcess is listed n page 166] The appellant has NOT shwn that his applicatin was nt dealt with in accrdance with this prcess utlined in the guidelines Thus, his legitimate expectatins were fulfilled In additin, the minister s interpretatin f natinal interest encmpassed the factrs referred t in the guidelines [thus he cnsidered them when making his decisin] There was n failure n the appellant s legitimate expectatins r t discharge the duty f prcedural fairness wed t him. Mt Sinai Hspital Center v QC, 2001, SCC Cnfirms that LE in Canada ges nly t prcedural bligatins (nt substantive nes). Why? What is Binnie J s reasning? What is mre imprtant that the prcess/substance divide? Munt Sinai Hspital Center v Quebec, 2001 SCC FACTS: The hspital was functining in vilatin f its license fr many years. Discussins with the minister tk place and it was agreed that if the hspital relcated its licence wuld be regularized. They raised mney and mved the

76 hspital, but then it sught its license update a different minister is a different gvernment refused. The hspital sught mandamus t cmpel the minister t issue the licence. The Quebec Superir curt refused t make such an rder, and the basis that the dctrine f legitimate expectatins culd nt be used t achieve substantive utcmes. QCA accepted this but ruled that the hspital was entitled t a revised license n the basis n the public law estpppel. The SCC held it was nt necessary t deal with the issue f public law estppel and legitimate expectatins the case turned n the fact that the earlier minister had already made a decisin cnditinal n the hspital relcating, and this decisin culd nt be verturned by the current minister. ISSUE Des the dctrine f legitimate expectatins apply? OUTCOME Binnie J The respndents argue that the dctrine f legitimate expectatins can be used t cmpel nt nly the prcedural prtectins but a substantive result prvided such a result is nt cntrary t law and its therwise within the pwer f the minister (which in this case it wuld be) There was then a discussin n hw England treats this Canadian cases tend t differ fr analytical purpses the related cncepts f prcedural fairness and the dctrine f legitimate expectatins The cntent f prcedural fairness is generally driven by the nature f the applicant s interest and the nature f the pwer exercised by the public authrity The dctrine f legitimate expectatins lks at the cnduct f the public authrity in the exercise f that pwer An applicant wh relied n legitimate expectatins des nt have t shw that they were aware f such cnduct r that it was relied n detrimentally (this is t prmte regularity, predictability and certainty in gvernment when dealing with the public It is difficult t argue that we shuld lwer the bar t the applicatin f legitimate expectatins and als expand its ptency fr verruling the Minister r ther public authrity n matter f substantive plicy If the curts give substantive relief, mre demanding cnditins precedent must be fulfilled that are presently required The dctrine f legitimate expectatins in limited t prcedural relief, but it must be acknwledged hat in cme cases it is difficult t distinguish the prcedural frm substantive RATIO- curt reaffirms that substantive relief is nt available under the dctrine f substantive expectatins Fault as an Element in Prcedural Fairness Assessments (Reading Ntes) On ccasin hearing d nt happen r are flawed because f the interventin f external agents (example ntices did nt arrive due t the negligence f pstal emplyees, lawyers etc) In Canada there is n definitive answer t the questin f whether fault r respnsibility n the part f the decisin-maker is always a necessary ingredient in establishing a reviewable absence f prcedural fairness 75

77 76 PROCEDURAL FAIRNESS: HEARING RIGHTS Intrductin-Cntent f the Duty

78 Baker & Knight values and bjectives: "The values underlying the duty f prcedural fairness relate t the principle that the individual r individuals affected shuld have the pprtunity t present their case fully and fairly, and have decisins affecting their rights, interests, r privileges made using a fair, impartial, and pen prcess, apprpriate t the statutry, institutinal, and scial cntext f the decisin." (Baker, L Heureux-Dube, para. 28) [T]he aim is nt t create prcedural perfectin but t achieve a certain balance between the need fr fairness, efficiency and predictability f utcme. (Knight v Indian Head Schl Divisin, L Heureux-Dube, text p 167) (See als text p. 162, ftnte 50.) Fairness in an adversarial mdel is there anther way? T this day, the key questin in an analysis f fairness remains: hw much prcedural fairness needs t be prvided in rder t render an adverse decisin legitimate? Fairness as a legal principle, therefre, arises in the negative. As lng as fairness is seen as a means f justifying adverse findings, relatinships f mutual trust and recgnitin between bureaucrats and citizens are unlikely t emerge. Within a framewrk f intimacy, the exchange f knwledge (i.e. fairness) is nt a means t the end f legitimating adverse decisins. Rather, this exchange is the basis fr justifying decisins, bth t the parties affected and t the public at large. Lrne Sssin, An Intimate Apprach t Fairness, Impartiality and Reasnableness in Administrative Law ( ) 27 Queen s L. J Carrying ut the analysis f cntent 1. Apply the Baker factrs t place r cntextualize the decisin at stake 2. Identify what the duty wuld require in the circumstances in terms f prcedural steps and/r in terms f whether there was an adequate pprtunity t knw the case against and respnd t it (Audi Alteram Partem generally) 3. Assess whether that cntent was satisfied SMELL TEST Gd examples: Mavi, Khela, Baker The Baker Spectrum Factrs that situate the decisin alng a spectrum f mre r less prcedural cntent Baker - The 5 factrs The cntent f prcedural fairness is "flexible and variable, and depends n an appreciatin f the particular statute and the rights affected (L Heureux-Dube, para 22). Cntent is determined thrugh cnsideratin f 5 (nn-exhaustive see Mavi at para 42) factrs: 1) The nature f the decisin and prcess fllwed in making it. Hw clse t judicial type f decisin and prcess? The mre judicial, the greater the prcedural prtectins required. 2) The nature f the statutry scheme and the statutry prvisins under which the agency perates i.e., greater prcedural prtectins where n right f appeal. 3) The imprtance f the decisin t the individual r peple affected mre imprtant mre prcedural prtectins; i.e., threats t persnal security. 4) Did the challenger have legitimate expectatins regarding prcedure based prmises, practices r representatins f the decisin-maker? Presence f legitimate expectatins (LE) may increase prcedural prtectins required Mre n LE n next slides 5) The agency s wn chice f prcedures, particularly where statutry regimes allws the agency t define wn prcedures.

79 78 CONTENT REQUIRED IN BAKER? Ntice was it adequate? Why nt an ral hearing? Ntice t affected kids, ther parents cnsidered adequate. Why? Written hearing. Cnsidered adequate. Why nt an ral hearing? Duty t give reasns fund, and met. Why? INTRODUCTION-The Level and Chice f Prcedures (READING NOTES) In Nichlsn the SCC expanded the reach f the cmmn law in the prcedural realm Whereas natural justice had previusly required prcedural safeguards nly where a decisin-makers exercised judicial r quasi-judicial functins, cmmn law prcedural fairness requirements extended beynd these t administrative decisins This case made it clear that what cnstitutes sufficient prcedural fairness prtectins (the level r cntent f the prcedural fairness by the cmmn law) depends n the cntext in which a specific decisin was made The prcedural fairness bligatins f decisin makers lie n a spectrum between: the trial type prcedures (in persn hearing, full disclsure rights)- mre infrmal prcedures (such as written ntice and pprtunity t cmment) At the lw end f the spectrum lies a lwer threshld where n prcedural fairness is wed In Baker the SCC sught t lay ut fr the first time a methdlgy t determine the apprpriate cntent f prcedural fairness. It set ut a nn-exhaustive list f 5 factrs: 1. The nature f the decisin and the prcess fllwed in making it The mre the prcess prvided fr, the functin f the tribunal, and the nature s the decisinmaking bdy and the determinatins that must be made t reach a decisin resemble judicial decisin-making, the mre likely it is that prcedural prtectins clser t the trial mde will be required Decisins that invlve adjudicatin between parties, directly r indirectly affect their rights and bligatins r require that decisin maker t apply substantive rules t individual cases, will require mre extensive prcedural prtectins than regulatry decisins bearing n the implementatin f scial and ecnmic plicy 2. The nature f the statutry scheme and the terms f the statute pursuant t which the decisin-maker perates Curts are very attentive t the terms f the legislatin the authrize fficials t act Where a statute prvides an fficial with investigatry r fact finding pwers as a preliminary step t a hearing befre a decisin-maker with the pwer t make a dispsitive decisin, minimum prcedures may be wed at this initial stage When is appeal prcedure is prvided within the statute, r when the decisin is determinative f the issue and further requests may nt be submitted greater prcedural prtectins will be wed The relevance f the statutry scheme is nt limited t the dispsitive nature f decisin r the existence f an appeal 3. The imprtance f the decisin t the affected individuals The mre imprtant the decisin is t the lives f thse affected the higher the level f prcedural prtectins mandated by the cmmn law prcedural fairness Example: Baker (affects f an unfavurable HC ruling n her family etc) 4. The legitimate expectatins f the persn challenging the decisin By including LE in its framewrk fr determining the level f prcedural fairness, the Baker curt cnfirmed the prcedural fcus f the dctrine LE may be raised by the decisin-maker s representatins abut available prcedures r substantive results

80 When a claimant has a LE that a certain prcedure will be fllwed, then that prcedure will be required by prcedural fairness When a claimant has a LE that a certain result, in his r her case fairness may require a mre extensive prcedural rights than wuld therwise accrd Example: In Baker the curt was nt cnvinced that the Canadian Gvernments ratificatin f the cnventin was sufficient t raise LE 5. The chices f prcedure made by the agency itself The deign f apprpriate prcedures is situatin-sensitive An agency will fuller awareness f the nature f the issues that are likely t arise, the prblems f getting at the trust in the area it is regulating, and its wn persn and budgetary limitatins, may have a far better appreciatin than the curts f what represents an apprpriate cmprmise amng the cmpeting claims f fairness, efficiency, effectiveness and feasibility This is particularly cmpelling in the case f agencies engaged in high vlume decisin making (example: refuges status determinatin) Curts shuld smetimes be deferential, and give imprtant weight t agencies prcedural chcies 79

81 80 Particular Hearing Rights Pre Hearing Issues Ntice Disclsure Hearing Issues The Frm f Hearing (Oral?) Crss-Examinatin Pst-Hearing Issues Duty t Give Reasns PRE-HEARING ISSUES This includes issues f ntice, claims t pre-hearing disclsure r discvery f the evidence t be relied n, and delay in the prcessing f administrative prceedings Ntice Frm, service, timing, cntent Krever Inquiry, 1997 SCC Nature f Cmmissins f Inquiry, and their cnclusins Ptential findings f miscnduct (s. 13 f Inquiries Act) but nt a legal binding standard such that the finding amunts t a cnclusin f law pertaining t criminal r civil liability Hw d we characterize this prceeding, this decisin, and its impact? (Baker factrs) Nte: imprtance f reputatin as the interest affected by the decisin (Baker factr #3) Ntice: Cntent issue? Timing issue? Bttm line what d yu need fr ntice t be fair? (ss. Para 56, p. 289) Ntice READING NOTES Ntice is necessary simply because withut ntice the ther rights cannt be exercised effectively r at all Mst f the prblems abut ntice can be put int ne r ther f fur grups: Prblems abut frm Prblems abut he manner f service Prblems abut time Prblems abut the cntents Tw frms f ntice are cmmn written and ral Written ntice is mre usual, and prbably the nrm that curts will require, unless the cntext permits sme different frm Persnal service (a ntice handed t r tld t the party in sme persn way) is anther nrm the curts will prbably require, unless the cntext permits giving ntice in sme ther way If n legislative specificatins is made, presumably the curts will permit ntice t be given in sme public way (fr example an ad in a newspaper) Giving ntice by mail creates the pssibility that it will nt be received in time, r nt at all Althugh administrative decisin-makers must take reasnable effrts t prvide ntice f a hearing, they are entitled t rely n the address prvided by the parties and the regulatry regime gverning mail delivery

82 81 The ntice must be given lng enugh befre the date f the hearing t give the party enugh time t decided whether t participate and t prepare Clearly the length f time needed will depend n the nature f the interest and the issues invlved Where ntice is inadequate because it was received n t shrt f a ntice, the defect can be cured thrugh an adjurnment lng enugh t allw the party t prepare The ntice must als give enugh infrmatin abut he issues t enable the party t prepare t respnd Issues abut ntice are nt cnfined t pre-hearing ntice, but als arise in the curt f a hearing Canada (AG) v Canada (Cmmissin f Inquiry n the Bld System, aka Krever Cmmissin), SCC 1997 FACTS in the 1980 s 1000 Canadians were affected with HIV and 12,000 were infected with hepitis C frm bld and bld prducts. This prmted the gvernment t cnvene a public inquiry under the Inquires Act, it was presided ver by Krever. Twenty-five parties were granted standing in the inquiry. The cmmissiner adpted rules f prcedure and practice agrees by all parties, including several prcedural prtectins (including, parties and witnesses had a right t cunsel t crss-examine witnesses, parties culd apply t have witnesses called, they culd intrduce dcumentary evidence and receive cpies f all dcuments entered int evidence, hearings were public). The cmmissiner assured participants that the inquiry wuld nt be cncerned with criminal r civil liability. Under sectin 13 f the inquires act the cmmissiner is required t give ntice t any persn against whm he intends t make a finding f miscnduct. He gave these ntices t certain individuals, crpratins and gvernments n the final days f the scheduled hearing. ISSUE Did the ntices fllw prcedural fairness? OUTCOME The ntices were cnfidential There recipients had the right t respnd as t whether the cmmissiner ught t reach these cnclusins, they were given abut 20 days t decide hw they wuld respnd NOTE The judge pinted ut that the cmmissin was nt a curt r tribunal and dad n authrity t determine legal liability The cmmissin has the pwer t make all relevant findings f fact necessary t explain their recmmendatins They may make findings that there was failure t cmply with certain standards The cmmissiner had t ensure prcedural fairness in the cnduct f the inquiry Prcedural fairness is essential fr the findings f the cmmissins because thse findings may damage the reputatin f a witness The same principle f fairness is extended t the ntices f miscnduct As lng as they are issued in cnfidence they shuld nt be subject t a strict degree f scrutiny as frmal findings The purpse f the ntices is t allw parties t prepare t respnd The mre detailed the ntice, the mre helpful it will be It the ntices are issued privately there is n risk f the parties reputatin because if it is released it wuld be by them The ntices shuld be as detailed as pssible Even if the cntent f the ntice appears t amunt t a finding that wuld exceed the jurisdictin f the cmmissiner, that des nt mean that the actual final, publicized findings will d s It must be assumed, unless the final reprt demnstrates therwise, that cmmissiners will nt exceed their jurisdictin Applicatin Remember the challenge was triggered by the ntices (NOT the findings f the cmmissin) There reasns are nt cncerned with any challenge t the cntents f the cmmissin reprt r any specific findings The questins then is whether the cmmissiner exceeded his jurisdictin in the mtives? NO The ptential finding f miscnduct cver areas that were within the cmmissiner s respnsibility t investigate, it mandate was very brad

83 The cntent f the ntices d nt indicate the cmmissiner investigated r cntemplated things utside f this mandate The cmmissiner clearly said he wuld nt make findings f legal liability Prcedural Prtectins? All the parties wh brught this claim were invlved in the prceedings, and shuld have nt been surprised t get a ntice The prcedural prtectins affrded t the parties were extensive and exemplary The cmmissiner with full cnsent f the parties ffered a wide range f prtectins these prcedures were adpted n a cnsensual basis after meeting with all the parties t determine what prtectins shuld be required The prcedural was fair and any bjectins are rejected Timing f the Ntice The appellants submit that because the cmmissiner waited until the end f the hearing t issue the ntices their ability t crss examine was cmprmised There is nt statutry requirement that the cmmissiner give ntice as sn as they fresee the pssibility f an allegatin f miscnduct Brad inquiries are nt fcused n individuals and whether they cmmitted a crime, but rather they are cncerned with institutins and hw t imprve them Althugh ntices shuld be give as sn as it is feasible, it is unreasnable t insist that ntices f miscnduct always be given early (there will be sme inquires, such as this ne, where the cmmissiner cannt knw until near the end what findings might be made) S lng as adequate time is given t the recipients f ntices t allw them t call evidence and make submissins they deem necessary, then the delivery f ntice will be fair The timing f the ntice always depends n the circumstances (in light f the nature and purpse f inquiry it is impssible t give adequate detailed ntices befre all the evidence has been heard) The appellants were give adequate pprtunity t respnd t the ntices, adduce additinal evidence etc 82 Disclsure: Hw much Infrmatin is enugh? And what are the pprtunities t refute that infrmatin? Disclsure and Official Ntice (READING NOTES) Imagine than an agency hears ral evidence r dcumentary evidence and representatins frm ne party in the absence f the ther party and des nt disclse this evidence t the ther party t give an pprtunity t respnd t it RULE: a party is entitled t bth be allwed an adequate pprtunity t respnd and knw what evidence and representatins have been made Kane v Bard f Gvernrs f UBC, 1980 SCC K was suspended by the president fr imprper use f his cmputer. He appealed t the bard f gvernrs, f which the president was a member. The bard held a hearing attended by K and the president. After the hearing they bard had dinner and met withut K t discuss the case. The evidence abut the rle the president played at this meeting was slim and nt clear. A member f the bard said the president did nt participate in the discussin r vte, but gave the bard necessary facts. K made an applicatin fr review which was dismissed, and he appealed all the way t the SCC The SCC ruled that the bard was under an bligatin t pstpne further cnsideratin f the matter until such time as K might be present and hear the additinal facts adduced, at the very least they shuld have made K aware f thse facts and affrded him an pprtunity t crrect r meet any adverse statements. The bard heard further facts, deliberated and ruled against K in ding s they made a fundamental errr

84 The danger against which the curts must be n guard is the pssibility f further infrmatin culd have been put befre the bard fr its cnsideratin which affected the dispsitin f the appeal Disclsure is the disclsure t parties f infrmatin that the agency has abut the decisins t be made Official ntice is the extent and manner in which an agency may, in making its decisins, use material that tis nt intrduced int evidence. These tw tpics verlap and are cnsidered tgether Disclsure is a basic element f the cmmn law f natural justice and is usually required unless sme cmpeting interest prevails The justificatin fr the requirement is simply t enable a party t knw and respnd t infrmatin that the agency has that might influence its decisin Issues surrunding cnfidentiality are at play here Access t Infrmatin Statues Many jurisdictins in Canada have freedm f infrmatin and privacy laws But just because infrmatin is exempted frm disclsure under freedm f infrmatin legislatin des nt necessarily mean that its disclsure will als be denied in prceedings t which the rules f natural justice r prcedural fairness apply Crwn r Executive Privilege At the federal level in Canada, the cmmn law f the Crwn r executive privilege has been cdified in prvisins in the Canada Evidence Act As ppsed t situatins which the Access f Infrmatin Act, these privileges are applicable t prceedings befre administrative agencies Other Cmmn Law Evidential Privilege The cmmn law als prvides fr varius ther frms f privilege all f which have the ptential t becmes relevant in the cntext f administrative prceedings and attempts t secure infrmatin But mst f these issues transcend administrative law and are dealt with in Evidence curses The difficulties in deciding abut he existence and extent f a right t disclsure are usually the effect f cmpeting interests, the typical difficulties can be demnstrated in fur grups f situatins 1. An agency may have cllected infrmatin abut an individual, and the individual may wish disclsure f this infrmatin 2. An agency may have cllected infrmatin abut an individual frm ther persns, and the individual may wish t knw their identity 3. An agency may have cllected infrmatin abut a business, usually as a required part f an applicatin, and ther parties, ften cmpetitrs, may wish disclsure 4. An agency may have material that it has created itself-fr example staff reprts abut particular crpratins r abut general ecnmic cnditins etc-any party may wish disclsure f this infrmatin Access t Agency Infrmatin The prblems in the first grup has arises in the wrk f incme supprt agencies Claimants f benefits seek access t the files abut themselves t prepare t present a claim r appeal r simply t knw what the agency knws abut them The best knwn prblem is access t the files f wrker s cmpensatins bards, especially disclsure f the medical reprts in these files Three majr arguments can be made fr disclsure: The basic and pwerful belief that individuals shuld have the right t knw what the gvernment knws abut them Disclsure wuld increase the effectiveness f the participatin f wrkers in the decisin making prcess (because it wuld enable them t respnd fr infrmatin) Disclsure wuld tend t imprve the quality f the reprts by expsing carelessness and vagueness 83

85 Basic principle: Kane v Bard f Gvernrs f UBC, 1980 SCC Disclsure: enable[s] a party t knw and respnd t infrmatin that the agency has and that may influence its decisin (p. 341) What wasn t disclsed in Kane? Why was Audi Alteram Partem nt satisfied? clsely related t rights f x-exam during ral hearings Missin Institutin v Khela (2014, SCC) s. 27 f Crrectins and Cnditinal Release Act (CCRA) required that infrmatin r a summary theref be shared with Khela (27(1)) but allwed exceptins when, the Cmmissiner has reasnable grunds t believe the disclsure wuld jepardize safety, security, and r an investigatin. Nn-disclsure rendered decisin prcedurally unfair Was the nn-disclsure a breach f the duty f fairness? The statute? What abut s. 7? Missin Institutin v Khela, SCC 2014 FACTS: K is a federal inmate serving life fr first degree murder. He started his sentence at a maximum security facility then was transferred t a medium security facility (Missin Instituin). Later he was invluntary transferred back n an emergency basis after the warden reassessed his security classificatin. K claims that the transfer was bth unreasnable and prcedurally unfair, therefr unlawful. Backgrund-There had been a prisn stabbing, K was suspected f being invlved. The prisn said they had evidence he planned the attack, and gave him ntice f Emergency invluntary transfer recmmendatin. K submitted a written rebuttal in respnse t the transfer, has asked that the scring matrix, security reprt and infrmatin n why the surces were reliable be disclsed t him. K received a respnse t his rebuttal that the wardens decisin t transfer was final. He made a habeas crpus applicatin. ISSUE: Was the transfer fair and reasnable? OUTCOME The SCC determined that the prvincial superir curt had jurisdictin t review an inmate transfer decisin fr reasnableness n an applicatin fr habeas crpus with certirari in aid An unreasnable r unfair transfer decisin wuld be unlawful Discipline and Disclsure Under sectin 13(2)(a) f the CCRR, if the cmmissiner r any designated staff member determines that an inmate must be transferred immediately n an emergency and invluntary basis the imate is still entitled t make representatins regarding the transfer Sectin 27(1)-prvides that when an inmate is entitled by the regulatins t make such representatins, the decisin make must give them all the infrmatin cnsidered in taking a final decisin regarding the transfer Subject t sectin 27(3) This requirement can be satisfied by prviding him with summary infrmatin Disclsure must be made in a reasnable time befre the final decisin is made The nus is ne the decisin maker t shw that 27(1) was cmplied with They d nt have t prduce evidence in their pssessin that was nt taken int accunt, nly evidence that was cnsidered Sectin 27 prvides that a summary with suffice Sectin 27(3) when the cmmissiner has reasnable grunds t believe that disclse f infrmatin under sectin 27(1) wuld jepardize the safety f (1) any persn (2) the security f the penitentiary r (c)the cnduct f a lawful investigatin, they may authrize withhlding frm the inmate infrmatin. [EXCEPTION TO SECTION 27(1)] A decisin t withhld infrmatin under 27(3) is reviewable The nus is n the decisin maker t invke this prvisin and prve there were reasnable grunds t believe the infrmatin wuld jepardize ne f the listed interests In this cntext it is the inmate residual liberty at stake NOTE-sectin 27 serves as a statutry guide t prcedural prtectins that have been adpted t ensure that decisins under sectin 29 are taken fairly, when a transfer decisin is made under sectin 29 and an inmate is entitled t make representatins then sectin 27 is engaged and decisins made under it are reviewable 84

86 Habeas crpus is structured in such a way that s lng as the inmate has raised a legitimate grunds upn which t questin the legality f the deprivatin, the nus is n the authrities t justify the lawfulness f the determine Even if sectin 27(3) is invked, upn review all infrmatin shuld g t the judge When prisn authrities rely n infrmants they need t explain in sealed affidavits why they are reliable Sme deference is wed t the cmmissiner and their representatives they are ften in the best psitin t determine whether such a risk culd materialize (risk under 27(3)) and they are in the best psitin t determine if a give surces infrmatin in reliable. APPLICATION It is clear that the warden in making the final transfer decisin cnsidering infrmatin she did nt disclse t K She did nt give him an adequate summery f the missing infrmatin The withhlding f this infrmatin was nt justified under sectin 27(3) thus the warden s decisin did nt meet the statutry requirements t the duty f prcedural fairness The warden failed t disclse infrmatin abut the reliable surces, the specific statements made and the scring matrix Althugh sme f this infrmatin may have been justifiably withheld under sectin 27(3) the appellants did nt invke this sectin r lead any evidence t suggest the withhlding f infrmatin related t cncerns under sectin 27(3) [if this sectin is never invked, pleased t prven then there is n basis fr the curt t find the warden was justified in withhlding infrmatin] T be lawful a decisin t transfer an inmate t a higher security penitentiary must, amng ther things be prcedurally fair T ensure this the authrities must meet the statutry disclse requirements (there they were nt met) The transfer was unlawful Canada v Mavi, 2011 Canada v Mavi, 2011 **Same facts are earlier While the cntent f prcedural fairness varies with circumstances and the legislative and administrative cntext, it is certainly nt t be presumed that Parliament intended that administrative fficials be free t deal unfairly with peple subject t their decisins GENERAL RULE: Duty f fairness applies the general rule will yield t clear statutry language r necessary implicatin t the cntrary Once the duty f prcedural fairness has been fund t exist, the particular legislative and administrative cntext is crucial t determining its cntent. We are dealing here with rdinary debt, nt a gvernment benefits r licensing prgram NATURE OF THE DECISION Here the nature f the administrative decisin is a straightfrward debt cllectin. NATURE OF THE STATUTORY SCHEME Parliament has made clear in the statutry scheme its intentin t avid a cmplicated administrative review prcess. Nevertheless, as the Curt f Appeal crrectly bserved, the nature f the decisin in this case is final and specific in nature It may result in the filing f a ministerial certificate in the Federal Curt which is enfrceable as if it were a judgment f that curt. The IRPA des nt prvide a mechanism fr spnsrs t appeal the enfrcement decisin absence f ther remedies militates in favur f a duty f fairness at the time f the enfrcement decisin EFFECT ON INDIVIDUALS Here the effect n the spnsrs is significant CHOICE OF PROCEDURES BY THE AGENCY The legislatin leaves the gvernments with a measure f discretin in carrying ut their enfrcement duties 85

87 In these circumstances I believe the cntent f the duty f prcedural fairness des nt require an elabrate adjudicative prcess but it des (as stated earlier) blige a gvernment, prir t filing a certificate f debt with the Federal Curt, 1. (i) t ntify a spnsr at his r her last knwn address f its claim; 2. (ii) t affrd the spnsr an pprtunity within limited time t explain in writing his r her relevant persnal and financial circumstances that are said t militate against immediate cllectin; 3. (iii) t cnsider any relevant circumstances brught t its attentin keeping in mind that the undertakings were the essential cnditins precedent t allwing the spnsred immigrant t enter Canada in the first place; and 4. (iv) t ntify the spnsr f the gvernment s decisin. Given the legislative and regulatry framewrk, the nn-judicial nature f the prcess and the absence f any statutry right f appeal, the gvernment s duty f fairness in this situatin des nt extend t prviding reasns in each case (Baker, at para. 43). This is a situatin, after all, merely f hlding spnsrs accuntable fr their undertakings s that the public purse wuld nt suffer by reasn f permitting the entry f family members wh wuld therwise nt qualify fr admissin 86 HEARING ISSUES What is the nature f the actual hearing itself? Shuld it be ral r written, r bth? Are the parties entitled t representatin? If there is an ral hearing, if there a right t crss-examinatin? The frm f the Hearing when is an ral hearing required? Oral Hearings (Reading Ntes) The phrase ral hearing can have different meanings in this sectin the term is used in the sense f a face-tface encunter with the actual decisin maker (r smething frmally and legally deputed by that decisin-maker t hear and receive evidence), and the ther party r parties It can be cntrasted with hearings that take place in writing While in many cntexts the cncept f an ral hearing als assumes the presence f ther prcedural entitlements, such as a frmal presentatin f evidence ad an entitlement t cunsel, we will make n such assumptins in this sectin Traditinally, and ral hearing is usually required as an element f natural justice With the emergence f the prcedural fairness dctrine, the presumptin in favur f ral hearings as the nrm disappeared in the expanded cmmn law prcedural terrain In Nichlsn SCC left discretin n whether t prceed by way f ral hearing r written hearing in the hands f the Bard f Cmmissiners f Plice In Baker The need fr deference t the prcedural chices f certain decisins makers achieved even strnger affirmatin Claims t an ral hearing are nes that a situatin sensitive, in the sense their necessity may depend n the matters that are at issue in a particular prceeding as ppsed t being a feature f all exercises f the relevant statutry pwer This is clear frm the fact that the SCC did nt purprt t be laying dwn a general rule in Baker The cnventinal view has always been that the claim t an ral hearing is at its highest when credibility is an issue in the prceedings Masters v Ontari is an example f where a sexual harassment cmplaint was dealt with by methds f inquiry ther than a regular hearing

88 Khan v University f Ottawa is an example f hw claims t an ral hearing (and prcedural claims generally) are affected by the way the curts characterize the issue befre the decisin maker and the nature f the interest that is at stake 87 Masters v Ontari, 1994 Characterizatin f decisin? Wuld a duty f fairness apply after Dunsmuir? Why is an ral hearing nt required? What prcedural safeguards were missing (accrding t Masters) in the prcess fllwed? Why were they nt required? Fair in all the circumstances? Masters v Ontari, 1994 OR FACTS: M was the Ontari agent general in New Yrk. He had been appinted by the premier in the exercise f prergative pwer. Fllwing cmplaints f sexual harassment against M, the premier requested a term f external investigatin t ascertain the facts. Ultimately this prduced a reprt t the effect that Masters had sexually harassed seven wmen. Fllwing a respnse by M, the premier determined that M shuld nt lng be agent general and be reassigned. Rather than accept reassignment, M resigned n the basis f a financial settlement. He then applied fr JR f the investigatrs reprt alleging varius breaches f the rules f natural justice in the cnduct f the investigatin. Amng cncern were the 45 witnesses that had been interviewed by investigatrs withut M r his cunsel being present, and being refused access t the list f questins asked, and cpies f ntes etc. M was allwed t interview witnesses himself, but few agreed t meet him. ISSUE: Did M had a right t crss-examine witnesses frm the investigatin prcess? OUTCOME M s Lawyer argued Where credibility will determine the main issue befre a gvernment decisin maker, particularly where the main issue is vital t an interested party s prfessinal career, the general duty f fairness and the rules f natural justice require that an impartial decisin maker first be designed t determine credibility by way f a full trial-type hearing permitting witnesses t be subject t crss-examinatin. M ccupied a plitically sensitive psitin representing Ontari utside f Canada, he understd his emplyment was at the discretin f the premier and was specifically subject t the cntinuing cnfidence f the premier the nature f the emplyer and emplyee relatinship in these circumstances invlves cmplete ministerial discretin Premier was nt acting pursuant t a statute, but was rather exercising a prergative this and the nature f the emplyment distinguishes this case frm Knight r Nichlsn placing this decisin mre twards the discretinary r legislative end f the spectrum One the ther hand, neither the decisin-making nr the investigatin fcused n brad grunds f pubic plicy rather the issue was whether M culd be said by his emplyer t have engaged in sexual harassment M s emplyment and reputatin were at stake BUT als the well-being f the wmen invlved and the fundamental need fr an harassment free wrkplace, is als pressing cncerns The premier n advice decided t apply the investigatry prcedure f the directive t the accusatins against M, because thse prcedures culd be adapted t the situatin Prcedures were tailred t the peculiar nature f the allegatins in rder t permit a mre infrmatin assessment The duty f fairness, in these circumstances shuld have its cntent influences by the directive which the gvernment itself chse t apply The submissin frm M s lawyer that he was entitled t a trial-type hearing befre an impartial decisin maker, including the right t crss examine his accusers is withut merit The duty f fairness did nt require the gvernment t use its cercive pwers as emplyer and direct witnesses t subject themselves t questining The statutry pwers prcedure Act des nt apply in the circumstances This was nt a hybrid dispute reslutin prcess, cmbining investigatry and adjudicatry respnsibilities The witness s respnses t M s denials and cunter accusatins t nt amunt t material changed in the allegatins against him

89 M was given the pprtunity by the premier t make legal arguments and respnd t all additinal details, an pprtunity he and his lawyer exercised fully in their reply There was n need t prvide the applicant with all the witness statements disclsure f the substance f the accusatins against him was sufficient The premier cnsidered the applicant s submissins tgether with the investigatrs reprt and cncluded, in light f the number and pattern f infrmal cmplaints, that M culd be brught back t Trnt M was given an adequate pprtunity t knw the allegatins against him and t state his case befre the premier cnsidered the matter the directives requirements were substantially cmplied with The prcedures adpted were adequately tailred t the distinctive nature f harassment allegatins having regard t all the circumstances Fr the applicant s benefit, hwever it must be emphasized again that the premier was nt cnducting a trial The allegatins against M were never adjudicated The investigatry prcess deplyed t inquire int his alleged cnduct by its very nature, did nt affrd him all the safeguards f a trial (and the case law des nt require therwise) The requirements f the duty t act fairly in the scpe f the emplyer-emplyee relatinship in this case were met 88 Khan v Univ f Ontari, 1997 ONCA Majrity decisin: Why was an ral hearing required? Factrs imprtant t this decisin? What turns n the decisin? Differences f characterizatin between the majrity and dissent? Khan v University f Ottawa, 1997 OR FACTS: K was a secnd year law student wh failed her evidence exam, this caused her grade pint t drp belw the faculty minimum and meant she wuld have t cmplete an additinal semester f curses. K appealed her grade t the Faculty Examinatins Cmmittee n the grunds she submitted a furth bklet that had nt been graded. The cmmittee met withut prviding K with ntice f the meeting r asking her t appear. They dismissed the appeal. After an unsuccessful appeal t the University Senate Cmmittee K sught JR f the decisins denying her appeal. ISSUE: Was K entitled t a ral hearing? OUTCOME The nly recrd f the Examinatins Cmmittees reasns is a memrandum frm the chair f the cmmittee t the Senate Cmmittee dated almst a mnth fllwing the examinatins cmmittee s decisin, it said: They were unable t grant the claim, the cmmittee tk int accunt t fllwing factrs: the strict prcedures and extremely careful effrts made by the exam invigilatrs, the fact that the alleged situatin had never ccurred befre, the fact that K indicated in her first exam bklet that she had cmpleted 3 bklets, the fact that little was written in the third exam bklet which was graded. The Dean f the Law schl wrte a cvering letter in which he said it is my understanding that the cmmittee is nt cnvinced that a furth bklet existed A university student threatened with the lss f an academic year by a failing grade is entitled t a high standard f justice The effects f a failed year may be very serius fr the university student it was certainly delay their career The prcedural fairness befre the Examinatins Cmmittee in this case required the fllwing: First (and mre imprtant) the cmmittee shuld have given K an ral hearing because her credibility was a critical issue n her appeal (by an ral hearing the curt means a hearing where she has the pprtunity t appear in persn befre the cmmittee and t make ral representatins) Secnd, the cmmittee shuld have cnsidered the prcedures fllwed during and after the Evidence exam and made reasnable inquires t determine whether theses prcedures were prper Third, the cmmittee shuld have given K an pprtunity t crrect r cntradict the three factrs relied n in its decisin **the examinatins Cmmittee did NOT bserve these requirements and therefr denied K prcedural fairness K was entitled t an Oral Hearing The faculty f law regulatins say that a student is entitled t have a grade reviewed where it appears the grade assigned t the student s wrk may be the result f a significant errr r injustice

90 The chair f the examinatins cmmittee acknwledged n behalf f the university that a grade given withut cnsidering the furth bklet wuld amunt t a significant errr r injustice he als acknwledged that if the furth bklet had nt been graded she was entitled t rewrite the exam The questin befre the examinatins cmmittee was whether K had written the furth bklet the nly direct evidence that she did write it was her wrd. If they cmmittee members did nt believe her then her appeal culd be dismissed The cmmittee had t decide it K was telling the truth K s credibility was the central issue fr the cmmittee In many academic appeals, prcedural fairness will nt demand an ral hearing an pprtunity t make a written submissin may suffice Example: students appealing their grades because they believed they shuld have recieved a higher grade wuld nt rdinarily be entitled t an ral hearing BUT in this case it was different because the main issue was her credibility, the cmmittee shuld have given her an in persn hearing Because this appeal turned n her credibility and because f the serius cnsequences n her f an adverse finding, fairness required an ral hearing The cmmittee disbelieved K s explanatin f a furth bklet withut even hearing frm her this amunted t prcedural fairness K need nt shw actual prejudice t prve that she has been denied prcedural fairness, she need nly shw that the cmmittee s breach f its duty f fairness may reasnable have prejudices her this burden was met here DISSENT The curt must ensure that its judgement is nt premises n a state f facts that accepts in full and withut caveat every claim made by the appellant and her supprters at every stage f the prceedings K insists n a right t attend and assert in persn that there was a furth bklet as if establishing that it existed wuld be cnclusive, But the cmmittee were aware f the quality f her wrk in the first three bks and her prfessr said mre f the same wuldn t have been beneficial This is an attempt t place the burden n the tw cmmittees t demnstrate affirmatively that the furth bk did nt exist this impses upn the respndents a standard f respnse that is entirely ut f keeping with the issue actually befre them She was given an pprtunity t prvide a full and detailed written accunt, she tk advantage f this pprtunity (she never indicated this written brief was nt cmplete) This was nt a matter which turned n credibility, there were nt allegatins against K and the prceedings were nt adversarial in nature She has nt been charged with cheating, r any ther disreputable cnduct, she is nt expelled and did nt lse a full year f schl There is nt authrity that a student is entitled t a right t be heard in persn when they are asking fr review their marks She was nly entitled t a full pprtunity t be heard s that her psitin culd be fairly put and cnsidered the recrd shws she was allwed t make submissins (written) and did s An ral hearing is nt required t satisfy the demands f natural justice In determining if natural justice had been denied, the circumstances f the case must be cnsidered 89 Crss-Examinatin Remember statutry surces: E.g., ATA, s. 38: (1) Subject t subsectin (2), in an ral r electrnic hearing a party t an applicatin may call and examine witnesses, present evidence and submissins and cnduct crss examinatin f witnesses as reasnably required by the tribunal fr a full and fair disclsure f all matters relevant t the issues in the applicatin.

91 90 (2) The tribunal may reasnably limit further examinatin r crss examinatin f a witness if it is satisfied that the examinatin r crss examinatin has been sufficient t disclse fully and fairly all matters relevant t the issues in the applicatin. (3) The tribunal may questin any witness wh gives ral evidence in an ral r electrnic hearing. Crss Examinatin (Reading Ntes) One f the majrity funding cases n crss examinatin is Re Trnt Newspaper Guild and Glbe Printing (1951) The guild applies t the Labur Relatins Bard t be certified as bargaining agent fr the emplyees f Glbe Printing Cmpany. In supprt f its cntentin that it represented a majrity f emplyees, an fficial f the guild submitted membership cards. The cmpany, suspecting that sme emplyees had left the unin after the applicatin was made sught crss-examinatin. The bard refused. It certified the unin and the Glbes applicatin fr certirari succeeded. The mst effective way in which the cmpany culd have tested the merits f the applicatin was t crss-examine the persn wh was presenting it. The cmpany was imprperly excluded frm a cardinal privilege which it enjys under ur jurisprudence, that exclusin itself was tantamunt t a denial f basic justice. The principle is enshrined in s 10.1(b) f the SPPA, althugh it is cnditined n the crss-examinatin bring reasnably required fr a full and fair disclsure f all matters relevant t the issues in the prceeding Innisfil Twnship v Vespra Twnship, 1981 SCC Imprtant statement f the principles and interests at stake in a right t crss-examine: p Pre Baker Discussin f the spectrum f decisin-making and its relevance t prcedural rights (pp ) Why is crss-examinatin cntentius in this case? Innisfil Twnship v Vespra Twnship, 1981 SCC FACTS: In the curse f an applicatin made by the city f Barrie t the Ontari Municipal bard fr permissin t annex land in adjacent twnships, B claimed that it needed the land t accmmdate a prjected ppulatin f 125, 000. This figure had been recmmended by a gvernment-appinted task frce n the regins future and had been apprved by the gvernment. A letter frm the minister f treasury, ecnmics and intergvernmental affairs stating this gvernment plicy was intrduced t the Municipal bard hearing. When it reached the SCC, the issue f whether the bard was bliged t accept the letter had been settled (it was admissible) and the plicy was relevant t evidence, But the bard had a duty t make up its wn mind. ISSUE: Whether the ppsing municipalities were entitled t crss examine the fficial t the ministry wh presented the letter? OUTCOME The SPPA des nt assist the respndent in this ppsitin t crss examinatin f the minister n the latter Sectin 3 f the act clearly makes that statute applicable t the hearing under s14 f the Municipal Act. Sectin 10(c) [nw 10.1(b)] is directly applicable t the issue at hand Here the ministry vlunteered a witness and at ne stage r anther the bard and all the parties befre it assumed crss-examinatin f that witness shuld and wuld take place there is n exceptin in favur f a member f the executive Crss-examinatin is a vital element f the adversarial system applies and fllwed in ur legal system, including in many instances befre administrative tribunals This des nt mean administrative tribunals will apply all the same techniques Where the rights f a citizen are invlved and the statute affrds him the right t a full hearing, including a hearing f his demnstratin f his rights, ne wuld expect t find the clearest statutry curtailment f the citizens rights t meet the case made against him by crss examinatin The prcedural frmat adpted by the administrative tribunal must adhere t the prvisins f the parent statute f the bard

92 The prcess f interpreting and applying statutry plicy will be the dminant influence in the wrking f such and administrative tribunal Where the bard prceeds in the discharge f its mandate t determine the rights f the cntending parties befre it n the traditinal basis wherein the nus falls upn the cntender t intrduce the facts and submissins upn which he will rely, the bard technique will take n smething f the appearance f a traditinal curt Where n the ther hand, the bard by its legislative mandate r the nature f the subject matter assigned t its administratin is mre cncerned with cmmunity interests at large, and with technical plicy aspects f a specialized subject, ne cannt expect the tribunal t functin in the manner f the traditinal curt We are here cncerned with that sectr f the cmmn law smetimes referred t as the principles f natural justice, fairness and audi alteram partem these principles are f diminished impact in stances such as we have here where the cnstituting statutes themselves utlines the necessity fr a hearing and established the prcedure t be fllwed in the cnduct f such hearings If the appellant here ahs the right t crss-examine the representative f the Ministry it is nt fr the appellate curt t withhld such a right because in its judgement it is dubtful, r even impssible, in the view f the curt fr the appellant t advance its case by crss-examinatin (the decisin t exercise that right is slely that f the hlder f the right) The relatinship f independent agencies t the executive branch is s far as that relatinship affects the prcedural rights f parties befre the tribunal can nly be determined by reference t the agency s parent statute, and ther relevant r cmmn law prescribing prcedural nrms If, n its face the agency is held ut in the cnstitute legislatin as independent f the executive, that is with functins independent f the executive, it remains that way fr all purpses until the Legislature exercises its right t alter the psitin and prcedure f the agency A curt will require the clearest statutry directin alng the lines, fr example, f the Bradcasting Act t enable the executive branch t give binding plicy directins f an administrative tribunal t make such directins immune frm challenge by crss examinatin This is nt the case f the right t crss-examinatin being used t challenge the plicies f the executive branch in such a way t bring the administrative tribunal int the plitical arena it is merely the exercise by a party prperly befre the Bard n an annexatin applicatin f a right accrded t that party by the Legislature 91 Djakvic v BC (Wrkers Cmp), 2010 BCSC Applicatin f the Baker factrs Why was x-examinatin imprtant in this case? Culd the prcedural prblem be slved withut x-examinatin/cmpelling the witness t attend? Djakvic v BC (Wrkers Cmpensatin Appeal Tribunal), BCSC 2010 FACTS: D claimed cmpensatin fr a lwer back injury that allegedly ccurred during a sessin f physical rehabilitatin. D said that at the clinic a staff member instructed him t d an exercise that caused a sharp pain in his back. Tw staff members allegedly witnessed the incident and mved him t a bed. D s claim was denied and he appealed the decisin. His cunsel indicated that he wished t have the tw staff members attend the hearing t be crss-examined. The vice chair decided t elicit their evidence in writing and asked t clinic manager t have his staff clarify the ntes. D again requested the staff members be subpenaed and was denied. The vice chair said a ral hearing wuld have little value and were unlikely t elicit an ppsing pinin etc. D sught JR. ISSUE: Was D entitled t crss examine the witness? OUTCOME Central t the duty t be fair is the maxim audi alteram partem This requirement had tw separate cmpnents 1. A party it entitled t knw r understand the case that is has t meet 2. It is further entitled t respnd t that case befre the decisin make reaches a decisin Ntice f a hearing and varius bligatins f disclsure pertain t the first requirement, and the nature f the hearing (in particular the right t crss examine) are relevant t the secnd

93 The fact that a tribunal, in this case the WCAT, has the jurisdictin t cntrl its hld prcess and t establish the frm in which it chses t accept evidence is nt determinative f these issues thus the fact that the WCAT has its wn Rules f Prcedures des nt ught the curts cnsideratins f whether the implementatin f such rules cnfrms with the requirements f the duty f fairness In applying the varius Baker Factrs, the fllwing was relevant: The prcess f the WCAT bear relatively strng similarities t the prcesses f the curts The rle f the WCAT within the statutry scheme als supprts the need fr a significant level f prcedural fairness, in particular there are n further appeals The imprtance f the WCAT decisins are imprtant t the individuals (D) The issue f legitimate expectatins are nt directly engaged here The fact that the Act and WCAT s rules prvide it with the ability t chse the prcedures it wishes t fllw and that it has expertise in making such decisins requires the curt t give weight t the chice t prcedures it had selected In this case, the Appeal Tribunals failure t allw cunsel fr D t crss-examinatin the witnesses cnstituted an unacceptable impairment f the petitiners right t prcedural fairness Applicatin f the Baker factrs (abve) n balance supprts D a significant degree f prcedural fairness The issue fr cunsel t crss-examinatin is nt nly relevant but central t this case If ne eights the burden as ppsed t the benefit f allwing crss examinatin which D sught, the scale tip in favur f allwing it (significant rights f D were at stake, questins f credibility were at issue, and issue raised was nt peripheral but a central ne) In preventing D s cunsel frm crss examinatin, the appeal tribunal freclsed the prspect that D s case might be advanced it further impaired D s ability t meet his case Questin: was D given the pprtunity t fully and fairly present his case? In denying him the pprtunity WCAT tk the unacceptable risk that nt all infrmatin that culd affect its decisin was placed befre it. POST-HEARING ISSUES Duty t Give Reasns Reasns are imprtant because: Prvide basis fr appeal Allws an individual see why decisin was made. May increase legitimacy f the decisin in the eyes f the persn affected (justificatin) Prtectin against arbitrary r unfair exercises f public pwer Increases public cnfidence in administrative justice Supprts better decisin-making (requires mre thught, effrt) Cncerns regarding a duty t give reasns in admin cntexts/reasns t apply the requirement flexibly because: Cst, burden Slws things dwn Might induce a lack f candur Increases frmality, legal vertnes f therwise infrmal prcesses Addressed by variable standard in administrative cntext; BUT. is there an inevitable creep f frmality where there is a duty t give reasns? Des prcedural review f reasns push fr that frmality? Duty t Give Reasns Develpment Established as part f the cmmn law duty f fairness in Baker, 1999 Issue: Is there a duty t give reasns r duty t give adequate reasns? When des review fr a breach f a duty t give reasns becme review n the merits (i.e., crss the line frm prcedural t substantive grunds)? Nfld & Labradr Nurses Unin, 2011: Questins f adequacy r reasns are issues f substance nt prcess 92

94 93 Duty t Give Reasns (READING NOTES) BC Administrative Tribunals Act 51 The tribunal must make its final decisin in writing and give reasns fr the decisin. Until recently the curt was reluctant t impse n statutry and prergative decisin makers the bligatin t give reasns fr their decisins this all changed in Baker In Baker the SCC did nt hld that all exercises f statutry f prergative pwers invlved the duty t give reasns In the case f Baker it was triggered by the imprtance f the interests at stake There als seems t be an acceptance that there if there exists a statutry right f appeal frm the decisins then this will nrmally generate an entitlement t reasns It is the tendency f the curt since Baker t require the prvisin f reasns (but this is nt universally the case Examples belw) In Service Crp. Internatinal v Burnaby (1999) it was held that municipalities were nt bliged (even after Baker) t give reasns fr its decisins in planning matters Giglitti v Cnsil (2005) a minister s decisin t clse a cllege was a plicy decisin an nt reasns were required Mavi SCC fund n duty t give reasns The Cntent f the Duty t Give Reasns When an administrative bdy is legally required t give reasns fr its decisins, what are the cntent f that duty? Dunsmuir v New Brunswick (2008) The SCC stated that a curt cnducting the reasnableness review f a tribunals decisin was cncerned nt nly with whether the decisin fell within the range f pssible acceptable utcmes, but whether the tribunal met requirements f justificatin, transparency and intelligibility in articulating reasns fr the decisin There fllwed cnflicting case law n whether the adequacy f reasns shuld be assessed n the crrectness standing as part f judicial review fr breach f the duty f prcedural fairness r as a dimensin f (substantive) reasnableness review The SCC reslved that questin in Newfundland and Labradr Nurse s Unin v Newfundland and Labradr (2011) Where there are n reasns in circumstances where they are required, there is nthing t review. But where, as here, there is reasns, there is n such breach. Any challenged t the reasning/result f the decisin shuld therefr be made within the reasnableness analysis. Therefr the quality f reasns is NOT a questin f prcedural fairness Baker (1999) Establishes a duty t give reasns in administrative cntexts (where required via spectrum analysis). Expansive. 2 pssible prcedural fairness arguments: Reasns are required (where n reasns were given) Reasns are inadequate/s inadequate that basically n reasns were given (where reasns are given) The latter argument pushes the line between prcedure and substance (we ll cme back t this.) Implicatins f prcedural vs substantive review f reasns Prcedural review reviewed n a crrectness standard reasns must make the basis fr the decisin intelligible Substantive review reviewed n a reasnableness standard, as per Dunsmuir is justificatin, transparency and intelligibility in the reasns mre imprtant than reasnableness f the utcme? (r vice versa)

95 What happened after Baker, befre Nfld & Labradr Nurses Unin Dunsmuir (2008) A curt cnducting a review fr reasnableness inquires int the qualities that make a decisin reasnable, referring bth t the prcess f articulating the reasns and t utcmes. [R]easnableness is cncerned mstly with the existence f justificatin, transparency and intelligibility within the decisin-making prcess. But it is als cncerned with whether the decisin falls within a range f pssible, acceptable utcmes which are defensible in respect f the facts and the law. (at para 40) What happened between : Differences f apprach at the lwer curts Nfld & Labradr Nurses Unin Nfld CA rejected the distinctin between prcedural review & substantive review f the adequacy f reasns: a failure t give reasns, r inadequate reasns, wuld be decisive in the reasnableness assessment. A cmplete lack f r inadequate reasns culd nt be said t prvide the justificatin, transparency and intelligibility in the decisin-making prcess required t satisfy reasnableness under the Dunsmuir analysis (at para 12) Versus Cliffrd v Ontari Municipal Emplyees Retirement System, 2009 ONCA Preserved prcedural review as distinct frm substantive review: Prcedural review prceeds frm a functinal perspective t see if the basis fr the decisin is intelligible and that reasns must be sufficient t fulfill the purpses required f them (at paras 29, 31) 94 Nfld & Labradr Nurses Unin (2011) On what basis did the unin argue that the arbitratr s reasns were effectively n reasns? Because it was nt apparent that the arbitratr addressed their arguments. What is the missing piece f the arbitratr s reasning that the SCC is willing t assume/supply as a matter f deference? Shut dwn the expansiveness f Baker Shut dwn prcedural review f the adequacy f reasns The adequacy f reasns is a substantive questin. Inadequate reasns may be unreasnable but gaps in the reasning/nt addressing each element will nt necessarily render the reasns inadequate. Standard fr reasns, as a matter f substantive review fr reasnableness: Reasns may nt include all the arguments, statutry prvisins, jurisprudence r ther details the reviewing judge wuld have preferred, but that des nt impugn the validity f either the reasns r the result under a reasnableness analysis. A decisin-maker is nt required t make an explicit finding n each cnstituent element, hwever subrdinate, leading t its final cnclusin. (para 16) Curts may supplement the reasns (qute frm Dyzenhaus, para 12) Newfundland and Labradr Nurses Unin v. The Queen, 2008 NLTD & SCC FACTS: This is a judicial review f a labur arbitratr s award cncerning the calculatin f vacatin entitlement under a cllective agreement between the Newfundland and Labradr Nurses Unin and the Newfundland and Labradr Health Bards Assciatin. Fur permanent registered nurses emplyed at the hspital in St. Anthny filed a grup grievance claiming that the emplyer was imprperly excluding frm years f service (fr purpses f vacatin entitlement) hurs wrked as a casual nurse that is, hurs wrked befre btaining permanent emplyment status. The grievance prceeded t arbitratin; the arbitratr denied the grievance, cncluding that the cllective agreement did nt cntemplate the use f casual hurs in the calculatin f length f service fr the purpse f determining the vacatin entitlement f permanent emplyees. The Unin claims that the arbitratr s decisin is unreasnable; in particular the Unin asserts that there is n chain f reasning in the award that can reasnably supprt the cnclusin f the arbitratr. ISSUE: whether the arbitratr s reasns in this case satisfied these criteria and whether the reasns engaged prcedural fairness?

96 HOLDING NLTD Fr the reasns that fllw, I have cncluded that the award shuld be quashed and the grievance remitted t a new arbitratr. [result was unreasnable, and set aside] SCC In this case, the reasns shwed that the arbitratr was alive t the questin at issue and came t a result well within the range f reasnable utcmes OUTCOME NLTD A reasnable decisin n a questin f cllective agreement interpretatin requires the demnstratin f a chain f reasning that leads t the cnclusin when nly issues f interpretatin are engaged, and the range f pssible utcmes is narrw, reasnableness f the decisin requires mre cgency f reasns than might therwise be the case. The cnclusin that permanent emplyees are nt entitled t include hurs wrked while they were casual emplyees is nt supprted by the reasning given. The arbitratr repeats the supprt fr his cnclusin three times that casual emplyees are nt entitled t Article 17 vacatin benefits. But the grievance was directed t the entitlement f permanent emplyees, nt the benefits available t casual emplyees. As nted earlier, the arbitratr s fcus as initially presented in the paragraph immediately preceding his cnsideratins was n the entitlement f casual emplyees. SCC the purpse f reasns, when they are required, is t demnstrate justificatin, transparency and intelligibility Frm Dunsmuir: Tribunals have a margin f appreciatin within the range f acceptable and ratinal slutins. A curt cnducting a review fr reasnableness inquires int the qualities that make a decisin reasnable In judicial review, reasnableness is cncerned mstly with the existence f justificatin, transparency and intelligibility within the decisin-making prcess that the cncept f deference as respect requires f the curts nt submissin but a respectful attentin t the reasns ffered r which culd be ffered in supprt f a decisin Reasnable means here that the reasns d in fact r in principle supprt the cnclusin reached. That is, even if the reasns in fact given d nt seem whlly adequate t supprt the decisin, the curt must first seek t supplement them befre it seeks t subvert them I d nt see Dunsmuir as standing fr the prpsitin that the adequacy f reasns is a stand-alne basis fr quashing a decisin, r as advcating that a reviewing curt undertake tw discrete analyses ne fr the reasns and a separate ne fr the result the reasns must be read tgether with the utcme and serve the purpse f shwing whether the result falls within a range f pssible utcmes In assessing whether the decisin is reasnable in light f the utcme and the reasns, curts must shw respect fr the decisin-making prcess f adjudicative bdies with regard t bth the facts and the law This means that curts shuld nt substitute their wn reasns, but they may, if they find it necessary, lk t the recrd fr the purpse f assessing the reasnableness f the utcme. Reasns may nt include all the arguments, statutry prvisins, jurisprudence r ther details the reviewing judge wuld have preferred, but that des nt impugn the validity f either the reasns r the result under a reasnableness analysis In ther wrds, if the reasns allw the reviewing curt t understand why the tribunal made its decisin and permit it t determine whether the cnclusin is within the range f acceptable utcmes, the Dunsmuir criteria are met. The fact that there may be an alternative interpretatin f the agreement t that prvided by the arbitratr des nt inevitably lead t the cnclusin that the arbitratr s decisin shuld be set aside if the decisin itself is in the realm f reasnable utcmes It is true that the breach f a duty f prcedural fairness is an errr in law. Where there are n reasns in circumstances where they are required, there is nthing t review. But where, as here, there are reasns, there is n such breach. Any challenge t the reasning/result f the decisin shuld therefre be made within the reasnableness analysis. 95

97 After Newfundland Nurses What is the standard that reasns must meet t satisfy the prcedural bligatin t prvide reasns? When are the reasns s inadequate/pr that effectively n reasns are prvided? Lndn Lims v Unicity Taxi cnfirms flexibility in understanding what cnstitutes reasns: Cntext includes recrd; n requirement fr frmal written reasns where recrd demnstrates sufficient understanding f basis fr decisin and basis fr JR Wall v Independent Plicy Review Directr, 2013 Decisin letter: The OIPRD is aware f yur cncerns. S. 60(2) permits the Directr nt t deal with a cmplaint if the cmplaint is made mre than six mnths after the facts n which it is based ccurred. Taking all the infrmatin int cnsideratin,m I have decided nt t prceed with the cmplaint as it was made mre than six mnths after the facts n which it is based ccurred. (para 46) ONCA: in its brevity and lack f explanatin, the letter is devid f any reasns adequate t allw fr judicial review f the Directr s decisin t screen ut Mr. Wall s cmplaint (at para 54) Cnsistent with Nfld & Labradr Nurses Unin? Cmpare with reasns in Agraira Aside: Query whether ONSC is crrect in calling the s. 60(7) requirement fr reasns a basis fr a legitimate expectatin (at para 42) Lwer decisin a gd ne fr thinking abut the relatinship between statute and the duty f fairness. Wall v Independent Plicy Review Directr, 2013 ONSC/ONCA FACTS: W was arrested in Trnt n the weekend f the G20 summit, he was later released withut charge. He made a cmplaint f plice miscnduct with the Ogive f the Independent Plice Review Directr [OIPRD] which lead t that ffice having disciplinary charges. Later W learned that the fficers may have acted under instructin frm senir fficers and filed a further cmplaint. Under sectin 60(2) f the Plice Services Act the directr may decide t nt deal with the cmplaint made by a member f the public if the cmplaint made if mre than six mnths after the facts n which it is based ccurred. Sectin 60(3) requires that the directr in making a determinatin under 60(2) cnsider three things (page 430). The directr dismissed W s cmplaint because it had been filed mre than six mnths after the event. W was given a letter stating that. W sugh judicial review f the decisin n the grunds that the directr had breached his statutry and cmmn law duty t prvide reasns fr this decisin. ISSUE: Did the directr breach a statutry r cmmn law duty t give reasns? HOLDING The directr failed t cmply with the requirements t prvide reasns (which was required under the legislatin) OUTCOME The duty t give reasns The SCC drew a distinctin between adequacy f reasns and the absence f reasns (Newfundland Nurses) The adequacy f reasns is nt a stand alne basis fr quashing a decisin, where reasns are given thse reasns shuld be cnsidered alng with the utcme in determining whether the decisin can be said t be reasnable A cmplete absence f reasns where such reasns are required wuld cnstitute a breach f prcedural fairness A breach f an applicable standard f natural justice r prcedural fairness required f a particular tribunal in respect f a particular decisin making prcess will result in that decisin being quashed Reasns are imprtant! They can fcus the decisin maker and remind them f the relevant factrs and evidence t be taken int accunt They als reassure the individual invlved that their cncerns have been cnsidered, and the prcess is fair and transparent Reasns are necessary fr there t be a meaningful judicial review f the decisin in questin 96

98 The decisin in this case in a SCREENING DECISION, which des nt attract the highest degree f prcedural fairness (but it des terminate the ability f the cmplainant t pursue a cmplaint f mistreatment against the plice, thus effects their rights) Since the directr is required by the legislatin t take int accunt certain factrs, prviding reasns wuld serve t fcus the directrs mind n thse factrs as well as reassure bth the individual and the public that hey have been taken int accunt Since these decisins are reviewable n judicial review it is essential fr the curt t see the reasning prcess f the directr and factrs he tk int accunt in making his decisin If there is a specific legislative requirement t give reasns there is a legitimate expectatin that reasns will the prvided [WRONG This is an INCORRECT STATEMENT] Based n the factrs reviewed, the curt finds that at the very least prcedural fairness impses a duty f the Directr t prvide reasns fr any decisins nt t deal with a cmplaint The directr breached the Statutry Requirement t Give Reasns The directr is required by sectin 60(7) t advise the cmplainant in writing with reasns if he decides t nt deal with a cmplaint Cunsel argues that the letter sent t W cmplies with sectin 60(7) the curt des nt agree What will cnstitute reasns in any given situatin will vary widely depending n the cntext and the nature f the decisin being made There are sme general guidelines [Gray] The bligatin t prvide adequate reasns is nt satisfied by merely reciting the submissins and evidence f the parties and stating a cnclusin The decisin maker must set ut its findings f fact and the principal evidence upn which thse findings were based The reasns must address the majr pints in issue The reasning prcess fllwed by the decisin maker must be set ut a reflect cnsideratins f the main relevant factrs At a MINIMUM, the reasns f a decisin maker must answer the questin f WHY? The directr failed t prvide reasns fr his decisin, thus breached sectin 60(7) (he did nt answer the questin f why) The Directr Breached Principles f Prcedural Fairness The failure t prvide reasns is nt nly a breach f the requirements f the legislatin, it als vilates principles f prcedural fairness and natural justice In this case W received n infrmatin whatsever befre the directr made his decisin, all he had was the ne letter Therefre, it is nt pssible t supplement the actual reasns with any ther material indicating the basis f the directr s decisin The directr breached principles f prcedural fairness by failing t prvide W with any reasns fr dismissing his cmplaint withut investigatin Remedy The directr failed t cmply with the requirements f his empwering legislatin that he prvide reasns fr his decisin By failing t prvide reasns, he als breached fundamental principles f natural justice His decisin cannt stand the decisin is quashed The matter is remitted t the Directr fr his cnsideratin ONCA The curt f appeal agreed with the Divisinal Curts cnclusin, the decisin was unreasnable because it failed t meet the Dunsmuir criteria f justificatin, transparency and intelligibility 97

99 # Manitba Ltd Lndn Lims v Unicity Taxi Ltd et al., 2012 MBCA FACTS: Lndn Lims applies t the Taxicab bard fr a taxicab business license. The appellant taxicab dispatch cmpanies filed ppsitins t the applicatin. Althugh the bjectrs are nt parties t the prceedings, they are prvided with summary infrmatin regarding the applicatin and given an pprtunity t present the reasns fr their ppsitin t the bard. The bard issued its dispsitin with respect t the applicatin, granting LL s applicatin in part. Hwever, it did nt issue written reasns fr the rder. The bjectrs appealed the decisin t the Curt f Appeal, arguing that the bard had breached its duty f fairness t prvide them with sufficient disclsure f the materials supprting LL s applicatin and failing t prvide reasns. ISSUE: Did the bard fail t prvide reasns? [was there a duty t prvide reasns?] HOLDING Althugh n frmal reasns were prvided (assuming that there was any duty t prvide reasns t bjectrs), the basis fr the decisin was evident frm the recrd This was sufficient OUTCOME Must the appellant request reasns befre they can cmplain f a breach f natural justice? It is nt necessary t decide this case n the basis that reasns were nt requested A failure t request reasns des nt bar appellate review in all cases If the duty f prcedural fairness and natural justice has been breached, then the failure t request reasns shuld nt prevent ne frm receiving a remedy Hwever, when determining whether reasns were required in any particular circumstances, surely the failure f a persn cmplaining t ask fr reasns may indicate that the ratinale fr the rder is understd withut written reasns At a MINIMUM, it is a factr fr the curt t take int accunt n an applicatin fr judicial review It must be remembered that the duty f fairness nrmally nly requires reasns t be prvided t the persn whse interests are being directly affected. Lack f written reasns In this case, the recrd acted as a sufficient surrgate fr frmal, written reasns, s that a persn culd understand the ratinale befre the Bard s decisin A simple rder issues by the bard may be sufficient t fulfil the purpse f reasns and admit f effective appellate review depending n the cntext f the prceedings that gave rise t the rder Cntent includes many things but mst certainly includes the nature f the issues raised befre the tribunal, the evidence adduced and the submissins made In this case, cntext wuld include infrmatin cntained in the disclsure summary, the infrmatin made public at the bard hearing and in part cnfidential business infrmatin As well in this case, the entire prceedings were recrded and transcribed, the test applied by the bard fr cnsidering whether t grant new licenses is clear frm the transcript f the hearing The recrd disclses that the bjectrs understd the test t be applied They did nt present any evidence t supprt their bjectins that additinal limusine licenses were nt need t fulfil public cnvenience r necessity Cnclusin With respect t the reasns, the histry f crrespndence makes clear that the bjectrs real grievance was lack f disclsure. They never requested reasns frm the Bard until the ntice f appeal was filed (this is assuming that a duty t give reasns was wed t the bjectrs wh were nt parties t the hearing Even given the absence f frmal written reasns in the cntext f this case and the nature f this questin, there is a sufficient understanding f the ratinale f the Bard t allw fr judicial review The Bards decisin was REASONABLE and shuld nt be interfered with 98

100 99 Cnstitutinal Surces f Prcedural Rights INDIVIDUAL Charter, s. 7 Unwritten cnstitutinal principles: judicial independence Charter, ss 8-14 COLLECTIVE Cnstitutin Act, 1982, s. 35(1)/Hnur f the Crwn Charter, s. 2(d) (limited prtectin f cllective bargaining) [Language rights?] SECTION 7 OF THE CHARTER Sectin 7-Charter 7. Everyne has the right t life, liberty and security f the persn and the right nt t be deprived theref except in accrdance with the principles f fundamental justice. BILL OF RIGHTS 2 Every law f Canada shall, unless it is expressly declared by an Act f the Parliament f Canada that it shall perate ntwithstanding the Canadian Bill f Rights, be s cnstrued and applied as nt t abrgate, abridge r infringe r t authrize the abrgatin, abridgment r infringement f any f the rights r freedms herein recgnized and declared, and in particular, n law f Canada shall be cnstrued r applied s as t (e) deprive a persn f the right t a fair hearing in accrdance with the principles f fundamental justice fr the determinatin f his rights and bligatins; **KEEP IN MIND THE DIFFERENT REMEDIES AVAVILABLE HERE The curts can strike dwn legislatin that vilates a persn s charter rights Cntrast this with administrative law remedies The Charter and the Bill f Rights ISSUES OF APPLICABILTY The Bill f Rights applies t the laws f Canada a term specified t include nt nly Act f Parliament and any rder, rule r regulatin thereunder but als any law in frce in Canada This is presumptively brad enugh t encmpass decisin and actins taken by thse deriving their pwers frm Federal law There is an argument that unlike the Charter, the reach f the Bill f Rights crrespnds generally t that f judicial review under the Federal Curts Act In cntrast t the Bill f Rights, the Charter Applies thrughut Canada By virtue f sectin 32(1) the charters applicatin is restricted t the parliament and gvernment f Canada and the legislatures and gvernment f the prvinces This has been held by the SCC t be the cntrlling prvisin in terms f the reach f the charter and t have the effect f restricting the charters applicatin in the administrative law arena t bdies r at least activities that can be brught within the cncept f gvernment The charter des nt reach thse bdies such as crpratins the existence f which depends n the peratins f which are facilitated by statutes, there are a range f ther bdies such as prfessinal gverning authrities and their disciplinary arms which cntrversy still remains

101 100 NOTE-bdies that are nt generally directly subject t the charter may still be affected by it There many be an issue abut the extent t which a statutry bdy, which enjys varying degrees f independence frm gvernment r act at arms length frm gvernment are subject t the charter The Bill f Rights: Specific Prcedural Threshlds After the advent f the Charter the Bill f Rights came int its wn as a surce f prcedural prtectins, its relevance is really in situatins where it prvides guarantees that the charter des nt There are three threshld dimensins t the Bill f Rights that prmise a mre extensive reach in terms f prcedural prtectins than prvided by the key charter prvisin sectin 7 The three ptentially significant differences between the reach f the relevant prvisins in the Bill f Rights and Charter The use f the term individual and persn in the Bill f Rights as ppsed t everyne in the Charter The inclusin f enjyment f prperty in sectin 1(a) f the Bill f Rights The attachment in sectin 2(e) f prcedural guarantees t the determinatin f rights and bligatins NOTE-there is nt equivalent t sectin 1 in the Bill f Rights The SCC has held that sectin 7 des nt include crpratins, whereas whether the same hlds true fr sectin 1(e) f the Bill f Rights remains unreslved NOTE ON SEURITY CERTIFICATES The pint f them is t get peple wh therwise dn t have a right t be in Canada t get them and deprt them, because they are a security threat t Canada Why dn t we see ther legal rights cming int play? (like sectin 8?, whey is it just sectin 7?) BECAUSE THEY ARE NOT CHARGED We dn t end up in a criminal curt They are detained n this special prcedure applying nly t nn-citizens (it des apply t permanent residents) Yu end up with a really lng prcess here There is a lt f things arund determining if the certificate is reasnable The named persns n the certificate get access t certain infrmatin (but nly sme that is cnsidered nnserius, and ften summaries) Think abut what wuld happen if this wasn t in the natinal security cntext there wuld be full disclsure and an ral hearing, but the fact that there are natinal security issues cmplicates it Federal curts review the certificates The Security Certificate Regime IRPA Security certificates intrduced in Canadian law in 1978 Accrding t Pub Safety Canada, 27 individuals have been subject t certificate prceedings since 1971 Meant primarily as a way f detaining and quickly deprting persns deemed a security threat. Applies t nn-citizens. Pst 2001, becmes imprtant tl fr cunter-terrrism. Earlier versin f scheme challenged in Chiarelli v. Canada (1992) and upheld but did nt fcus n secrecy, i.e. issues in Charkaui. (C cnvicted f serius crime) Where deprtatin wuld be t cuntries with a likelihd f trture (fllwing Suresh), certificates result in extended detentins r huse arrest with limited pprtunities t challenge thse detentins Summary f certificate regime befre Charkaui acting n inf frm CSIS, RCMP, Ministers f Immigratin and Public Safety sign certificate declaring persn inadmissible n security grunds (suspected invlvement in terrrism, r simply being a danger t the security f Canada [s.34]).

102 101 certificate acts as warrant fr arrest and detentin pending deprtatin. can be reviewed in Federal Curt within 48 hurs fr permanent resident, r 120 days fr freigners. detainee prvided nly a very brief summary f allegatins ( f the mst general srt ). curt can admit a wide range f inf, hearsay, etc., with part f r all f hearing in camera and ex parte. Reach f Sectin 7 fr the Purpses f Administrative Law Questin: Whether invluntary subjectin t the administrative prcess in general generates a life, liberty and security f persn claim? New Brunswick v G(J) The SCC held that at least sme dramatic administrative prceedings may affect a persn s security f persn In this case the minister sught t extend a judicial rder granting the minister custdy f the appellants three children fr an additinal three mnths Did fundamental justice require she be prvided with legal aid? BUT befre this issue culd be determine the curt had t determine if the custdy affected her security f persn The SCC cncluded that given the nature f the custdy prceedings and their impact, she crssed the threshld While the curt as a whle emphasized that state actin must have a SERIOUS and PROFOUND effect n a persns psychlgical integrity in rder t trigger the Charter, this judgement des suggest a ptentially wider rle fr fundamental justice in administrative law, especially nw that s. 7 is n lnger assciated exclusively with criminal law Sectin 7 and Cmmn Law Cmpared Singh v Canada (Minister f Emplyment and Immigratin), 1985 SCC Why 3 under Charter (Wilsn J), 3 under Bill f Rights (Beetz J)? Prcess in statute. What did it prvide fr? What didn t it prvide fr? (p ) S. 7 Analysis: Threshld: Everyne

103 Threshld: right t life, liberty and security f persn Cntent: Fundamental Justice Issue f credibility at stake, imprtant interests (as defined by s. 7 cntext) implies ral hearing required Idea f Fundamental Justice requiring mre prcedural prtectins: If the right t life, liberty and security f persn is prperly cnstrued as relating nly t matters such as death, physical liberty and physical punishment, it wuld seem n the surface at least that these are matters f such fundamental imprtance that prcedural fairness wuld invariably require an ral hearing (at p. 191) Idea that s. 1 has a limited rle in relatin t justifying breaches f s. 7 rights Ideas revisited respectively in Suresh, Charkui FACTS: The appellants were all cnventin refugee claimants wh were landed in Canada. Under the prcedures then in place the minister acting n advice f the Refugee Status Advisry Cmmittee had determined that there were nt cnventin refugees. They all then applied t the Immigratin appeal bard fr a redeterminatin f their status, but their applicatins were nt referred t an ral hearing because the bard determined n the strength f the material submitted by the applicants that there was n reasnable grunds fr believing they culd establish their claims at a hearing. They then applied t JR fr a review f the bards decisin, alleging the statutry scheme infringed sectin 7 ISSUE: D the prcedural mechanisms in the Immigratin act vilate sectin 7? HOLDING The prcedures set ut in the act were cmplied with The prcedures fr the determinatin f refugee status set ut in the Immigratin Act DO NOT accrd refugee claimants fundamental justice in the adjudicatin f thse claims, and are thus nt cmpatible with sectin 7 [And cannt be saved by sectin 1] OUTCOME **WILSON Decided the Case n the basis f the Charter The curt first ntes that he curt shuld nt in general resrt t cnstitutinal basis fr reslving cases unless necessary A cnventin refugee wh des nt have a safe haven elsewhere is entitled t rely n this cuntry s willingness t live up t the bligatins it has undertaken as a signatry t the UN cnventin Relating t the Status f Refugees Prcedures fr Determining Cnventin Refugees Status The prcedures fr determining whether an individual is a cnventin refugee are set ut in sectins and [Immigratin Act] The act des nt envisage an pprtunity fr the refugee t be heard ther than thrugh his claim and the transcript f his examinatin under ath The curts cannt imprt int the duty f prcedural fairness prcedural cnstraints n the cmmittee s peratin which as incmpatible with the decisin making scheme set up by Parliament Where the bard determines, pursuant t sectin 71(1) that he applicatin shuld be allwed t prceed, then a hearing wuld take place pursuant t sectin 72(2) it wuld be quasi-judicial ne which full natural justice wuld apply The bard is nt empwered by the terms f the statute t allw a redeterminatin hearing t prceed in every case it may nly d s if it they are f the pinin that there are REASONABLE grunds t believe that a claim culd, upn the hearing f the applicatin, be established Thus they nly get a hearing if they make it base the threshld questin (set ut in sectin 71(1)) On the facts there is nt basis fr suggesting the prcedures set ut in the Act were nt fllwed therefr any claim can nly succeed if there is a basis that the Charter requires the curt t verride parliaments decisin t exclude the kind f prcedural fairness sught by the appellant Are the Appellants Entitled t the Prtectin f s.7 f the Charter? Everyne includes the appellants this term encmpasses everyne human being wh is physically present in Canada BUT d the rights they seek t assert fall within the scpe f sectin 7? Here the right nt t be returned t a cuntry where his life r freedm is threatened 102

104 A cnventin refugee is a persn wh has a well-funded fear f persecutin in the cuntry frm which they are feeing t deprive this persn f avenues pen t them under the Act at least a minimum impair his right t life, liberty and security f persn in the narrw sense advanced Security f persn must encmpass freedm frm the threat f physical punishment r suffering as well as freedm frm such punishment itself The appellants are nt at this stage entitled t assert rights as Cnventin refugees; their claim is that they are entitled t fundamental justice in the determinatin f whether they are cnventin refugees The rights the appellants are seeking t assert are nes which entitle them t prtectin f sectin 7 it is necessary t then cnsider whether the prcedures fr the determinatin f refugee status as set ut in the Act accrd with fundamental justice Is fundamental justice denied by the prcedures fr the determinatin f cnventin refugee status set ut in the act? Des the prcedures set ut in the Act fr the adjudicatin f refugee status claims meet the test fr prcedural fairness? D they prvide an adequate pprtunity fr a refugee claimant t state his case and knw the case he has t meet? Prcedural fairness may demand different things in different cntexts it is pssible that an ral hearing befre the decisin maker is nt required in every case in which sectin 7 f the charter is called int play If the right t life, liberty and security f persn is prperly cnstrued as relating t nly matters such as death, physical liberty and physical punishment it wuld seem n the surface at least that there are matters f such fundamental imprtance that prcedural fairness wuld require an ral hearing But the curt is prepared t accept that written submissin fr the present purpses may be an adequate substitute fr an ral hearing in the apprpriate circumstances Even if a hearing based n written submissins are cnsistent with the principles f fundamental justice fr sme purpses, they will nt be satisfactry fr all purpses There a serius issue f CREDIBILTY is invlved fundamental justice requires an ral hearing The prceedings befre the Immigratin Appeal Bard were quasi-judicial and the Bard was nt entitled t rely n materials utside the recrd which the refugee claimant himself submitted n this applicatin fr redeterminatin The applicant is entitled t submit whatever relevant material he wished t the Bard, but he still faces the hurdle f having t establish t the Bard that n the balance f prbability the Minister was wrng (mrever, he must d this withut any knwledge f the minister s case beynd the rudimentary reasns which the minister has decided t give him in rejecting his claim) it is this aspect which the curt finds impssible t recncile with the requirements f fundamental justice set ut in sectin 7 Because sectin 71(1) requires the Bard t reject an applicatin fr redeterminatin unless it is f the view that mre likely than nt the applicant will succeed, it is apparent that an applicatin will usually be rejected befre the refugee claimant has had an pprtunity t discver the Ministers case against him in the cntext f a hearing The prcedures fr the determinatin f refugee status set ut in the Immigratin Act DO NOT accrd refugee claimants fundamental justice in the adjudicatin f thse claims, and are thus nt cmpatible with sectin 7 THEREFOR we must g the third step f the inquiry and determine whether these shrtcmings cnstitute a reasnable limit which can be demnstrably justified in a free and demcratic sciety (Sectin 1) Can the Prcedures be Saved by Sectin 1? NO **BEETZ CONCURRING BUT DECIDED THE CASE ON THE BASIS OF THE BILL OF RIGHTS The appeals shuld be allwed, but n the basis f the Bill f Rights Des the prcedures fllwed in this case fr the determinatin f Cnventin refugee status cnflict with the Bill f Rights, particularly sectin 2(e)? I have n dubt that the appellants were nt affrded a fair hearing in accrdance with the principles f fundamental justice The principles f fundamental justice will nt impse an ral hearing in all cases the mst imprtant factr in determining the prcedural cntent f fundamental justice is a given case are the nature f the legal rights at issue and the severity f the cnsequences t individuals 103

105 104 The decisin f the Immigratin Appeal Bard was set aside, applicatin fr determinatin f refugee status remanded t the Suresh v Canada (Minister f Citizenship and Immigratin), 2002 SCC Applicatin f Baker framewrk in s. 7 cntext Para 119 re LE: It is nly reasnable that the same executive that bund itself t the CAT [Cnventin Against Trture] intends t act in accrdance with CAT s plain meaning. Art 3 f CAT: N State Party shall expel, return r extradite a persn t anther State where there are substantial grunds fr believing that he wuld be in danger f being subjected t trture. (emphasis added) Standard fr reasns para 126 fit with recent changes in the cmmn law (Nfld & Labradr Nurses Unin)? S. 7 specific? Barring exceptinal circumstances, deprtatin t trture will generally vilate the principles f fundamental justice prtected by s. 7 f the Charter Suresh v Canada (Minister f Citizenship and Immigratin), 2002 SCC FACTS: S was an applicant fr landed immigrant status. The minister issued a certificate under s 53(1)(b) f the Immigratin Act t the effect that S was a danger t the security f Canada. This certificate was t preclude an rder deprting S frm Canada. While S had an pprtunity t make written submissins and file material with the minister, he did nt have a cpy f the immigratin fficers reprt, based n which the certificate was issued, and as a cnsequence was unable t respnd t it rally r in writing. ISSUE: Are the prcedures fr deprtatin set ut in the Immigratin Act cnstitutinally valid? HOLDING S lacked the basic prcedural prtectins affrded t him by the duty f fairness and principles f fundamental justice Nt saved by sectin 1 OUTCOME This appeal requires the curt t determine the prcedural prtectins t which an individual is entitled under sectin 7 f the Charter In ding s, it is helpful t cnsider the cmmn law apprach t prcedural fairness articulated in Baker This shuld always be applied in a manner sensitive t the cntext f specific fact situatins The principles f fundamental justice f which s. 7 speaks, thugh n identical t the duty f fairness in Baker, are the same principles underlying that duty The principles f fundamental justice demand, at a minimum, cmpliance with the cmmn law requirements f prcedural fairness [sectin 7 prtects substantive and prcedural rights] In s far as prcedural rights are cncerned, the cmmn law dctrine summarized in Baker prperly recgnizes the ingredients f fundamental justice It is apprpriate t lk at the Baker factrs in determining nt nly whether the cmmn law duty f fairness has been met, but als in deciding whether the safeguards prvided satisfy the demands f s. 7 We lk t the cmmn law factrs nt as an end in themselves, but t infrm s.7 prcedural analysis at the end f the day he cmmn law is nt cnstitutinalized, it is used t infrm the cnstitutinal principles that apply in this case the nature f the decisin being made and prcess fllwed in making it; the nature f the decisin here bears sme resemblance t judicial prceedings The decisin is f a serius nature and made by an individual n the basis f evaluating a weighing risks it is als a decisin t which discretin must attach The minister must evaluate nt nly past actins and present dangers but als future ptential behavir f the individual The nature f the decisin mitigates neither in favr f particularly strng nr particularly weak prcedural safeguards the nature f the statutry scheme and the term f the statute pursuant t which the bdy perates; The nature f the statutry scheme suggests the need fr strng prcedural safeguards Greater prcedural prtectins will be required where there is n appeal prcess

106 This is particularly s, whereas here, parliament elsewhere in the statute has cnstructed fair and systematic prcedures fr similar measures the imprtance f the decisin t the individual r individuals affected; The appellants interest in remaining in Canada is highly significant There is a risk f trture The greater the effect n the life f an individual by the decisin, the greater the need fr prcedural prtectins t meet the cmmn law duty f fairness and the requirements f fundamental justice This factrs mitigates in favr f higher prcedural prtectins the legitimate expectatins f the persn challenging the decisin; Article 3 f the CAT explicitly prhibits the deprtatin f persns t states where there are substantial grunds t believe the persn wuld be in danger f being subjected t trture it is nly reasnable that the same executive that bund itself t the CAT intends t act in accrdance with the plain meaning f CAT the chices f prcedure made by the agency itself. The minister is free under the terms f the statute t chse whatever prcedures she wishing in making sectin 53(1)(b) decisins This factrs suggest a degree f deference t the Minister s chice f prcedures At the same time, the need fr deference must be recnciled with the elevated level f prcedural prtectins mandated by the serius situatin refugees like S face Weighing the Factrs The prcedural prtectins reqruied by sectin 7 in this case did nt extend t the level f reqruing the minister t cnduct a full ral hearing r cmplete judicial prcess hwever they require mre than the prcedures required under the act (and require mre than S received) Prcedural Prtectins A persn facing deprtatin t trture must be infrmed f the case t be met This means the materials n which the minister is basing their decisin must be prvided t the individual Fundamental justice requires that an pprtunity t be prvided t respnd t the case presented t the minister S and his cunsel had n knwledge f which factrs they specifically needed t address, nr any chance t crrect any factual inaccuracies fundamental justice requires that written submissins be accepted frm the subject f the rder after the subject has been prvided with an pprtunity t examine the material being used against him r her Nt nly must the refugee be infrmed f the case t be met, they must als be given an pprtunity t challenge the infrmatin f the Minister where issues as t its validity arise The minister must prvide reasns fr their decisin These reasns must be articulated and ratinally sustain a finding that there are n substantial grunds t believe that the individual wh is subject t a sectin 53(1)(b) declaratin will be subjected t trture etc. The reasns must als articulate why, subject t privilege r valid legal reasns fr nt disclsing detailed infrmatin the minister believes the individual t be a danger t the security f Canada The reasns must cme frm the decisin maker These prcedural prtectins need nt be invked in every case f deprtatin under sectin 53(1)(b) It is fr the refugee t establish a threshld shwing the risk f trture r similar abuse befre the minister is bliged t cnsider fully the pssibility They must make ut a prima facie case If they establish that trture is a real pssibility the minister must prvide the refugee with the relevant infrmatin and prvide the refugee with the pprtunity t address that evidence in writing and after cnsidering all relevant infrmatin issue respnsive written respnses This is a minimum requirement t meet the duty f fairness and fulfil the requirements f the principles f fundamental justice under sectin 7 The lack f prcedural prtectins in this case in nt saved by sectin 1 105

107 Charkaui v Canada (Citizenship and Immigratin), 2007 SCC [#1] Challenge t the legislative regime. Hearing rights: Right t knw and answer the case against [A] persn whse liberty is in jepardy must knw the case t meet. Here that principle has nt merely been limited; it has been effectively gutted. Hw can ne meet a case ne des nt knw? (para 64) Relatinship between s. 1 and s. 7 Para 22 Charkaui v Canada (Citizenship and Immigratin), 2007 SCC [#1] FACTS: C a permanent resident f Canada (alng with Almrei and Harkat wh were bth freign natinals recgnized as cnventin refugees) were each named in a certificate f inadmissibility r security certificate issued by the minister f public safety and emergency preparedness and the minister f citizenship and immigratin under the Immigratin and Refugee Prtectin Act (IRPA). After the issuance f this certificate which deemed them t be threats t Canada s natinal security, all were detained pending cmpleting f prceedings fr their remval. The IRAP specified that he first step required each individual n the certificate t be reviewed by a federal judge t determine whether it was reasnable. The Review-it was cnducted in camera and ex parte, and the named individuals had n right t see the material n the basis f which the certificate was issued (nn-sensitive material culd be disclsed but nt sensitive materials, which the minister and reviewing judge culd rely n). The reviewing judge was required t disclse t the named individual a summary f the case against them but again that summery culd nt include sensitive infrmatin. The reviewing judge s decisin that the certificate was reasnable was final. (n appeals) The appellants challenged the cnstitutinal validity f the security certificate prcess saying it vilated their sectin 7 rights. After determining that their security f persn s interest was engaged (by their detentin and the ptential remval t places their lives wuld be threatened) the curt cnsidered next if the states interference with their sectin 7 rights cnfrmed with the principles f fundamental justice and als defined fundamental justice in this cntext. ISSUE: Des the interference with their sectin 7 rights cnfrm t the principles f fundamental justice? HOLDING The IRPA s prcedures fr determining whether a certificate is reasnable des nt cnfrm t the principles f fundamental justice as embdies in sectin 7 [and are NOT saved by sectin 1] OUTCOME Hw d security cnsideratins affect the sectin 7 analysis? Sectin 7 requires that laws that interfere with life, liberty and security f persn cnfrm t the principles f Fundamental justice (the basic principles that underlie ur ntins f justice and fair prcess Including guarantees f prcedural fairness Sectin 7 requires nt a particular type f prcess, but a FAIR PROCESS having regard t the nature f the prceedings and interests at stake It is nt cncerned with whether a limit f life, liberty and security f persn is justified but whether the limit has been impsed in a way that respects the principles f fundamental justice The questins at the s.7 stage is whether the principles f fundamental justice relevant t the case have been bserved in substance, having regard t the cntext and the seriusness f the vilatin the issue is whether the prcess is fundamentally unfair t the affected persn If s the deprivatin f life, liberty r security f persn simply des nt cnfrm t the requirements under sectin 7 the issue then shifts t sectin 1 Security cncerns cannt be used t excuse prcedures that d nt cnfrms t fundamental justice at the s.7 stage f the analysis if the cntext makes it impssible t adhere t the principles f fundamental justice in their usual frm, adequate substitutes may be fund BUT the principles must be respected t pass the hurdle f sectin 7 (this is the bttm line) In this case, full disclsure f the infrmatin relied n may nt be pssible At the same time, it is cntext that may have imprtant, indeed chilling cnsequences fr detainees the seriusness f the individual interests at stake frms part f the cntextual analysis 106

108 The greater effect n the life f the individual by the decisin, the greater the need fr prcedural prtectins t meet the cmmn law duty f fairness and requirements f fundamental justice under sectin 7 [suresh] Factual situatins that are clser r analgus t criminal prceedings will merit greater vigilance by the curts The prcedures required t cnfrm t the principles f fundamental justice must reflect the exigencies f the security cntext YET they cannt be permitted t erde the essence f sectin 7 T satisfy sectin 7 meaningful and substantial prtectins must be there Relevant Principles f Fundamental Justice The verarching principles f fundamental justice that applies here is befre the state can detain peple fr significant perids f time, it must accrd them a fair judicial prcess The basic principles has a number f facets [fr sectin 7 t be satisfied each f these must be meet in substance] It cmprises that right t a hearing It requires the hearing be befre an independent and impartial magistrate It demands a decisin by the magistrate n the facts and the law It entails the right t knw the case put against ne, and the right t answer that case The first requirement f a hearing was meet here and the requirements f independence and impartiality but there are questins surrunding the ther nes In the case t meet Principles satisfied Fair hearings require the affected persn t be infrmed f the case against them and permitted t respnd Under the IRPA s certificate scheme, the named persn ay be deprived f access t sme f all f the infrmatin put against them, which wuld deny them the ability t knw the case t meet This prblem is very serius The right t knw the case t be met is nt abslute Canadian statues smetimes prvide fr ex parte r in camera hearings, in which judges must decisin imprtant issues after hearing frm nly ne side The curt has repeatedly recgnized that natinal security cnsideratins CAN limit the extent t disclsure f infrmatin t affected individuals In cme circumstances substitutes fr full disclsure may permit cmpliance with sectin 7 Where limited disclsure r ex parte hearing have been fund t satisfy the principles f fundamental justice, the intrusin n liberty and security f persn has typically been less serius then that affected by the IRPA it is ne thing t deprive a persn f full infrmatin where fingerprinting is at stake and quite anther t deny them infrmatin where the cnsequences are remval frm the cuntry r indefinite detentin In the cntext f natinal security, nn-disclsure, which may be extensive, cupled with the grave intrusins n liberty impsed n a detainee makes it difficult, BUT nt impssible t find substitutes that will satisfy sectin 7 IF sectin 7 is t be satisfied either the persn must be given the necessary infrmatin r a substantial substitute fr the infrmatin must be fund [neither is the case here] The nly prtectin the IRPA accrds the named persn is a review by a designated judge whether the certificate is reasnable Remember, the issue at the sectin 7 stage is nt whether the gvernment has struck the right balance between the need fr security and individual liberties (that is the issue at the sectin 1 analysis) The questins here is where the basic requirements f prcedural justice have been met!! Reviewing Judge Cnclusin n Sectin 7 The judge here nly sees what the ministers put befre him, they knw nthing else f the case and are nt in a psitin t identify errrs, find missins r assess the credibility and truthfulness f infrmatin in the way a named persn wuld be If the judge cannt prvide the named persn with a summary f the infrmatin that is sufficient t enable t persn t knw the case t meet, then the judge cannt be satisfied that the infrmatin befre them is reliable 107

109 The secrecy required by the scheme denies the named persn the pprtunity t knw the case put against them, and hence t challenge t gvernment s case this is turn undermines the judges ability t cme t a decisin based n the relevant facts and law It fails t assure the fair hearing that is required by sectin 7 The IRPA s prcedure fr determining whether a certificate is reasnable des nt cnfrm t the principles f fundamental justice, as embdies in sectin 7 Is the Limit justified under sectin 1? Oakes test requires a pressing and substantial bjective and prprtinal means A finding f prprtinality means: Means ratinally cnnected t the bjective Minimal impairment rights Prprtinality between the effects f the infringement and the imprtance f the bjective The prtectin f Canada s natinal security and related intelligence surces is a pressing and substantial bjective, the prvisins regarding disclsure are ratinally cnnected t this bjective BUT There are alternatives that demnstrate the IRPA did nt minimally impair the names persns rights The curt declared the IRPA prcedures uncnstitutinal, but suspended this declaratin fr ne year. It was amended and parliament prvided t the appintment f a special advcate wh culd challenge gvernment claims t the cnfidentially f evidence as well as relevance, reliability, sufficiency, and weight, make submissins, crss-examine witness and with the judges permissin exercise any ther pwers t prtect the interest f the names persn CLASS NOTES Remember in a sectin 7 cntext we have manage t challenged the legislatin and strike it dwn (unlike under the cmmn law) The legislative regime is being challenged here Hearing Rights at Stake Right t knw and answer the case against The named persn desn t have the pprtunity t challenged t infrmatin The testing f the credibility f the infrmatin is at issue here The curt pints ut that there are ther way t prtect the named persns interest Third party special advcate, which was eventually adpted in Canada As it std here, it was nt minimally impairing The curt is really thinking abut what else is pssible here? they are lking fr a substantial substitute Relatinship between sectin 1 and sectin 7 [para 22] Nte it pretty hard t justify a breach f fundamental justice Yu still have t g thrugh the sectin 1 analysis At the end f this case the gvernment is given a year t respnd (suspended declaratin) 108 Charkaui v Canada (Citizenship and Immigratin), 2008 SCC [#2] Charkui #2: Challenge t implementatin f existing regime (pre-changes t legislatin) Disclsure requirements Where are the Baker factrs (bth cases)? Are these cases applicable t nn-s. 7 cntexts? Nn-natinal security cntexts? Charkaui v Canada (Citizenship and Immigratin), 2008 SCC [#2] FACTS: In this case centered arund disclsure issues. C requested cmplete ntes f interviews dislsed t him, and the ministers infrmed the judge thse ntes had been destryed pursuant t CSIS plicy. The SCC decided the CSIS was required t keep their ntes. They then turned t the issue f C s right t disclsure f ntes. ISSUE: Des C has a right t disclsure f the ntes? [Duty t disclsure relating t security certificate cases] HOLDING OUTCOME Review f Criminal Law Principles Gverning Disclsure

110 A plice frces investigatin file must be as cmplete as pssible, s that all evidence might be relevant t the defence can be eventually disclsed t cunsel therwise the right f the accused t make full answer and defence culd be impaired There is n questin that the riginal ntes and recrds are the best evidence Distinguishing the Cntext f Security Certificates N charges were laid against the persn named in the certificate A frm f disclsure f all the infrmatin ges beynd the mere summaries which are currently prvided by CSIS ministers and the designated judges is required t prtect the fundamental rights affected by the security certificate prcess In this case, the Federal Curt f Appeal refused t impse a duty t disclse n CSIS n the basis that duty did nt apply in administrative law Whether r nt the cnstitutinal guarantees f sectin 7 apply des nt turn n a frmal distinctin between different areas f law, rather it depends n the security f the cnsequences f the states actin fr the individual s fundamental interests f liberty and security, and in sme cases right t life Investigatins by CSIS play a central rle in the decisin n the issuance f a security certificate and the cnsequent remval rder the cnsequences f certificates are ften mre severe than thse f criminal charges Duty t Disclsure based n sectin 7 and related t the severity f the cnsequences f the prcedures fr the named persn The curt has cnfirmed that the duty t disclse is included in the rights prtected by sectin 7 The issuance f a certificate and the cnsequences f them (such as detentin) demand a great respect fr the named persn s right t prcedural fairness in this cntext prcedural fairness includes a prcedural fr verifying evidence adduced against them In the cntext f infrmatin prvided by CSIS t the ministers and the designated judge, the factrs cnsidered in Suresh cnfirm the need fr an expanded right t prcedural fairness, ne which requires the disclsure f infrmatin, in the prcedures relating t the review f the reasnableness f the security certificate and its implementatin It is nt enugh t say there is a duty t disclse we must determine exactly hw that duty is t be discharged in the cntext f the prcedures relating t the issuance f a security certificate and the review f its reasnableness Duty Adapted t the Nature f the Prcedures Designed t Ensure the Prper Perfrmance f the Mandate f the Minister, and in Particular f the Designated Judge Only the ministers and the designated judge have access t all the evidence In C this curt nted the difficulties that the Act then in frce caused t the review f reasnableness f the certificate The destructin f the riginal dcuments nly makes thse difficulties greater if the riginal evidence is destryed the designating judge has access nly t the summaries prepared by the state The destructin f CSIS fficers f their peratinal ntes cmprmises the very functin f JR CSIS shuld be required t retain all infrmatin in its pssessin and t disclse t the ministers and the designated judge It the ministers have access t all the undestryed riginal evidence, they will be better psitined t make apprpriate decisins n issuing a certificate, the designated judge wh will have access t all the evidence will then exclude any evidence that might pse a threat t natinal security and summarize the remaining evidence Duty t the Individual Adapted t the Requirements f Cnfidentially f the Infrmatin in Questin that is being Reviewed by the Judge The destructin f the peratinal ntes is a breach f CSIS duty t retain the disclse infrmatin CSIS Is required t retain all its peratins ntes and disclse them t the ministers fr the issuance f a security certificate and subsequently t the designated judge fr the review f the reasnableness f the certificate This cnclusin flws frm the seriusness f the cnsequences the investigatin will have n the s.7 rights f the named persn The curt determined the by adjurning the detentin review t allw C time t prepare his testimny and defence the designated judge had adverted and prejudice that might have resulted frm the delay in disclsing 109

111 the interview summaries, particularly given that C had himself participated in the interviews and knew what he had said n these ccasins CLASS NOTES Challenge t the implementatin f the existing regimes (pre-changes t the legislatin Disclsure requirements This time they are interpreting what is required by the statute, rather then actually changing the statute again Where are the Baker factrs (in bth #1 and #2)? They dn t really explicitly use the factrs but yu can definitely find them in there They talking abut he nature f the decisin (cmparing it t ther regimes) There is a huge emphasis n factr three interest at stake fr the individual There is als a lt f factr 5, which lks at legislative regime and prcedural chices These cases are gd as a pint f cntrast yu can use them utside f the cntext f sectin 7 USE THEM TO CONTEXTUALIZE cntrast and cmpare with theses cases POST THIS CASE We see regime changes (use f special advcated) His case finally ended Charkaui Pstscript: Parliament s respnse -earlier and mre frequent reviews f certificate -use f special advcates -includes a prvisin stating that the prhibitin in sectin f Criminal Cde n the use f evidence btained by trture r inhuman r degrading treatment als applies t security certificate hearings. 110 Canada (Citizenship and Immigratin) v Harkat, 2014 SCC Challenge t new regime, with special advcates. new regime des nt vilate s. 7 (special advcates satisfy requirements f prcedural fairness). and fr gd measure, the scheme survives s. 1 analysis. Harkat nw trying t challenge the remval rder (implementatin f the regime) What is main argument n the challenge? Special advcates prcess Lawyers bligatins? Canada (Citizenship and Immigratin) v Harkat, 2014 SCC FACTS:(relating t C #1) H says the public summaries f the clsed recrd are t vague and general. He argues that the essence f the right t knw a case and meet it is the ability t meet detail with detail. ISSUE: Des the scheme prvide the named persn with sufficient disclsure? HOLDING The IRPA scheme prvides sufficient disclsure t the named persn t be cnstitutinally cmpliant SCC held that nly infrmatin that raised a SERIOUS risk f injury t natinal security r danger t the safety f a persn shuld be withheld frm a named persn designated judges shuld be vigilant and skeptical with respects t its claims OUTCOME At first lk the IRPA scheme appears t give precedence t cnfidentiality f infrmatin ver the named persns right t knw the meet the case Sectin 83(1)(e) says the judge des nt have t include anything that in their pinin wuld be injurius t natinal security r endanger the safety f any persn if disclsed Thus, the cntent f the summaries must be tailred t satisfy the verriding prvisi that n infrmatin r evidence injurius t natinal security r t the safety f any persn may be disclsed C #1 makes it clear that there is an incmpressible minimum amunt f disclsure that the named persn must receive in rder fr the scheme t cmply with sectin 7 they must receive sufficient disclsure t knw and meet the case against them

112 Parliament amended IRPA scheme with the intent f making it cmpliant with sectin 7 it shuld be interpreted in light f this intentin The IRPA scheme requirements that the named persn be reasnably infrmed f the ministers case shuld be read as a recgnitin that the named persn must receive incmpressible minimum amunt f disclsure The named persn need nt nly be give sufficient infrmatin abut the allegatins against him, but als the evidence n the recrd The level f disclsure required fr a named persn t be reasnably infrmed is case-specific, depending n the allegatins and the evidence against the named persn Ultimately the judge is the arbitratr f whether this standard has been met At the very least the named persn shuld knw the essence f the infrmatin and evidence supprting the allegatins This excludes the scenari where the named persn receives n disclsure whatsever The IRPA is silent n what happening is there in an irrecncilable tensin between the requirement that a named persn be reasnably infrmed n the ne hand, and the imprtance f sensitive infrmatin nt being disclsed It des nt say the reasnably infrmatin standard can be cmprmised But it als des nt prvide that sensitive infrmatin can be disclsed where this is abslutely necessary in rder fr the reasnably infrmed standard t be met The necessary utcme in these situatins is that the minister must withdraw the infrmatin r evidence whse nn-disclsure prevents the named persn frm being reasnably infrmed T hld that the minister can rely n essential infrmatin and evidence f which the named persn cannt be reasnably infrmed wuld frce the judge t vilate the respnsibility expressly places n them by the statute ie the duty t ensure the named persn remains reasnably infrmed thrughut the prceedings It cannt have been parliaments intent t design a scheme that wuld require a judge t vilate their respnsibilities The IRPA scheme must be interpreted as precluding the minister frm bringing a case in repsect f which the named persn cannt be kept reasnably infrmed SCC held that nly infrmatin that raised a SERIOUS risk f injury t natinal security r danger t the safety f a persn shuld be withheld frm a named persn designated judges shuld be vigilant and skeptical with respects t its claims CLASS NOTES Challenges the new regime, with special advcates The regime is fund t n vilate sectin 7, but they did d a sectin 1 analysis anyways What is the main argument n this challenge? The new regime des nt change that infrmatin the judge cnsidered a threat t natinal security des nt have t be disclsed The curt just says the judge shuld be skeptical f any claims that infrmatin is a threat t natinal security H still desn t get t knw wh tld the gvernment what Think abut this and the rule f law! They are balancing different values here Fundamental justice, prcedural requirements and natinal security Special advcate What is the lawyer s bligatin? It becmes challenging because there is nt full disclsure The special advcate might knw wh the persn is but they can t ask their client S. 7 in Other Administrative Cntexts Security f Persn S. 7 reminder: Security f Persn threshld Mrgentaler: includes psychlgical stress and physical integrity Rdriguez: includes persnal autnmy G(J): Impact f state actin must be serius and prfund (para 60, p. 215 in bk) 111

113 112 Blence v British Clumbia (Human Rights Cmmissin), 2000 SCC Inrdinate and undue delay culd trigger s 7 Where s. 7 claim fails, there may still be a breach f the duty f fairness at cmmn law Undue delay may be a breach f fairness in 2 distinct ways (at cmmn law): 1. By causing prejudice t hearing rights 2. By causing the administratin f justice t fall int disrepute (abuse f prcess, unfair prcess) Blence v British Clumbia (Human Rights Cmmissin), 2000 SCC FACTS: B was accused f sexual harassment while serving as a Minister in BC. He was dismissed. The hearing with the Human Rights Cmmissin tk place ver 30 mnths after the initial cmplaints were made. Media attentin surrund this issue was intense, H suffered frm depressin. B cmmenced a JR prceeding t have the cmplaints stayed. He claimed the cmmissin had lst jurisdictin due t the unreasnable delay in prcessing the cmplaints. He said this delay caused serius prejudice t him and him family and it amunted t an abuse f prcess and a denial f natural justice. ISSUE: Has B s sectin 7 rights been vilated by state caused delay? If n, did the delay vilate administrative principles f a fair hearing? Is B entitled t a stay f prceedings? HOLDING It cannt be said that his sectin 7 rights were vilated, nr did the cnduct f the cmmissin amunt t an abuse f due prcess OUTCOME First the curt lked at whether the charter applied here, is s had sectin 7 been vilated. Then the curt went n t cnsider whether there had a been a vilatin f cmmn law principles f administrative law Des the Charter Apply t the Actins f the BC Human Rights Cmmissin? The mere fact that a bdy is independent frm gvernment is nt determinative f the Charter s applicatin, nt is the fact that a statutry prvisin is nt impugned Being autnmus r independent frm gvernment is nt a cnclusive basis upn which t hld that the charter des nt apply Bdies exercising statutry authrity are bund by the charter even thugh they may be independent frm gvernment There is n dubt the cmmissin was created by statute and all its actins are pursuant t that statutry authrity The cmmissin in this case cannt escape Charter scrutiny merely because it is nt part f gvernment r cntrlled by gvernment In Eldridge A curt said a hspital was bund by the charter since it was implementing specific gvernment plicy r prgram the cmmissin in this case is bth implementing a specific gvernment prgram and exercising pwers f statutry cmpulsin The ultimate surce f authrity f the cmmissin is gvernment

114 The cmmissin must act within the bundaries f its enabling statute, there is clearly a gvernment quality t its functins, and it was created by gvernment Ntwithstanding that the cmmissin may have adjudicative characteristics, it is a statutry creature and its actins fall under the authrity f the Human Rights Cde [T hld therwise wuld allw the legislative branch t circumvent the Charter by establishing statutry bdies that are immune t the Charter] Has the Respndents Sectin 7 Rights been Vilated by State Caused Delay? Sectin 7 is nt cnfined t the penal cntext [aka applies utside f criminal law] It can extend beynd criminal law, at least where there is state actin which directly engages the justice system and its administratin It a case arises in the Human Rights Cntext, there is n specific bar against such a claim and s.7 may be engaged The questin t be addressed in nt whether delays in human rights prceedings can engage sectin 7 BUT whether the respndents sectin 7 rights were actually engaged in the circumstances f this case Liberty Interest Security f Persn The liberty interest in sectin 7 is nt restricted t mere freedm frm physical restraint liberty is engaged where state cmpulsins r prhibitins affect imprtant and fundamental life chices Liberty in sectin 7 prtects the individuals right t make inherently private chices This nly encmpasses matters that can be prperly characterized as fundamentally r inherently persnal such that by their very nature they implicate basic chices ging t the cre f what it means t enjy individual dignity and independence The circumstances in this case d nt shw the state preventing the respndent frm making any fundamental persnal chices Therefre liberty is nt engaged Security f persn has been held t prtect bth physical and psychlgical integrity f the individual Nt all state interferences with an individual s psychlgical integrity will engage sectin 7 it is restricted t serius state-impsed psychlgical stress This can be delineated int tw requirements: first the psychlgical harm must be state impsed [meaning the harm must result frm the actins f the state] and secnd the psychlgical prejudice must be serius. State Caused Delay? The respndent has suffered serus prejudice in cnnectin with the allegatins aginst him, BUT there must be sufficient causal cnnectin between the state caused delay and the prejudice suffered by him t trigger sectin 7 Mst f the cnsequences ccurred befre there was even any delay The curt then ges n t assume this part is satisfied (because it will fail at the next part) Quality f Interference? This begs the questin f whether sectin 7 includes a generalized right t dignity? [aka the be free frm stigma assciated with a human rights cmplaint] NO Dignity is nt a free standing cnstitutinal right but rather an underlying value State interference with psychlgical integrity? In rder t trigger security f persn here the impugned state actin must have a serius and prfund effect n the respndent s psychlgical integrity it is nly exceptinal cases where state interference in prfundly intimate and persnal chices f an individual state caused delay in human rights prceedings culd trigger sectin 7 security f persn here the state has nt interfered with the respndent and his family s ability t make essential life chices Imprting the Ntin f Stigma frm the Criminal Law Cntext The 11(b) guarantee f a right t an accused persn t be tried within a reasnable time cannt be imprted int sectin 7 there is n analgus prvisin t sectin 11(b) 113

115 which applies in administrative prceedings, nr is there any cnstitutinal right utside the criminal cntext t be tried within a reasnable time In cntrast t the criminal realm, the filing n a Human Rights cmplain implies t suspicin f wrngding n the part f the state the purpse f human rights prceedings it nt t punish but t eradicate discriminatin, tribunals are cmpensatry rather than punitive The Stress and stigma and anxiety suffered by the respndent did nt deprive him f sectin 7 rights The respndent is unable t crss the first threshld f the sectin 7 analysis in these circumstances BUT this case shuld nt be cnstrued as hlding that state caused delays in human rights prceedings never trigger an individuals sectin 7 rights the pssibility is still left pen Was the Respndent Entitled t a Remedy Pursuant t Administrative Law Principles? QUESTION did the delay amunt t a denial f natural justice even where the respndents ability t have a fair hearing has nt been cmprmised? Prejudice t the Fairness f the Hearing There are apprpriate remedies available in the administrative law cntext t deal with state cause delay in human rights prceedings BUT a delay withut mre will nt warrant a stay f prceedings as an abuse f prcess at cmmn law In the administrative law cntext there must be prf f significant prejudice which results frm an acceptable delay It is thus accepted that principles f natural justice and the duty f fairness include the right t a fair hearing and that undue delay in the prcessing f an administrative prceedings that impairs the fairness f the hearing can be remedied The delay in this case is nt such that wuld necessarily result in a hearing that lacks the essential elements f fairness Prf f prejudice has nt been demnstrated t be f sufficient magnitude t impact n the fairness f the hearing The QUESTION whether the delay in this case culd amunt t a denial f natural justice r an abuse f prcess even where the respndent has nt been prejudice in an evidentiary sense Other Frms f Prejudice It wuld be prepared t recgnize that unacceptable delay may amunt t an abuse f prcess in certain circumstances even where the fairness f the hearing has nt been cmprmised It must be emphasized that few lengthy delays will meet this threshld It must be a delay that wuld, in the circumstances f the case bring the human rights system int disrepute What is acceptable delay then? Abuse f Prcess-Principles There is n supprt fr the ntin that a stay is the nly remedy available in administrative law prceedings a stay accrds very little imprtance t the interest f implementing the Human Rights Cde and giving effect t the cmplaints right t have their cases heard Other remedies are available fr abuse f prcess If a respndent asks fr a stay they have t bear a heavy burden In rder t find an abuse f prcess the curt must be satisfied that the damage t the public interest in the fairness f the administrative prcess shuld the prceedings g ahead wuld exceed the harm t the public interest in the enfrcement f the legislatin if prceedings were halted Fr there t be an abuse f prcess the prceedings must be unfair t the pint that they are cntrary t the interests f justice cases f this nature will be very rare Was the delay unacceptable? There is n abuse f prcess in delay per se The respndent must demnstrate that he delay was unacceptable t the pint f being s ppressive as t taint the prceedings 114

116 While stress and stigma resulting frm an inrdinate delay may cntribute t an abuse f prcess in this case it is nt cnvincing that the delay was inrdinate The determinatin f whether a delay has becme inrdinate depends n the nature f the case and its cmplexity, the facts and the issues, the purpse and nature f the prceedings, whether the respndent cntributed t the delay r waived the delay, and ther circumstances f the case aka it is nt based n the delay alne but n cntextual factrs With respect t this case, there was n extended perid withut any activity The cmmissin seems t have handles the cmplaints against B in the same manner it handles all cmplaints In Saskatchewan v Kdellas the SCA held that a determinatin f whether delay is unreasnable is, in part, a cmparative ne whereby ne can cmpare the length f delay in the case at bar with the length nrmally taken fr prcessing in the same jurisdictin and in ther jurisdictins in Canada The delay in this case shuld be cmpared t that in analgus cases A review f the facts demnstrated that althugh there was 5 mnths f inactivity, this is nt unacceptable cnsidering the time that elapsed was nthing mre than time requires t prcess cmplaints It shuld nt be t difficult t recgnise inrdinate delay when it ccurs a 5 mnths delay r even a 24 mnth ne perid is nt t inrdinate r inexcusable t amunt t an abuse f prcess Cnclusins It cannt be said that the respndents sectin 7 rights were vilated, nt did the cnduct f the cmmissin amunt t an abuse f due prcess But the curt is still cncerned with the lack f efficiency f the cmmissin in dealing with cmplaints, and they rder mandamus (in ther wrds the cmmissins shuld hear the case nw) CLASS NOTES One f the reasns this case takes t lng is because there is an investigatin first The challenge is nt the regime itself He is trying t prhibit this frm ging frward the curt gives the remedy f mandamus (aka they must hear it nw) Partial Dissent Said yu dn t g t the charter we g t administratin law! Why dn t they d t the charter? If the questin f whether the charter applies in a case is cntrversial maybe this a gd reasn t NOT apply the charter. ALSO admin law might allw yu mre flexibilities, the curt can make rder remedies under admin law that dn t have such a majr impact n gvernment (as ppsed t Charter analysis, where if yu find a breach a regime change will have t be in place r the gvernment will have t put mre peple in place t make the prcess faster etc) Majrity ges thrugh charter then administratin law The majrity said yu d the charter first Where is a sectin 32 discussin des the charter apply? [this was imprtant here because the charter desn t apply t everything, and what the trial is ding is adjudicative and independent frm gvernment], but the curt says this can t be way fr the gvernment t escape their charter bligatins In the end the curt desn t clear up what we shuld d when there are ptential admin law issues and ptential charter vilatins Sectin 7 Claim Inrdinate and undue delay COULD trigger sectin 7 (it desn t here but it culd) Remember that sectin 7 claimants are against gvernment! The gvernment is nt respnsible fr that claim being made The harm caused here is cmplicated in terms f its causes Be aware that the harm caused by delay isn t just abut witnesses and it is a cntextual analysis In this case we have a different characterizatin f delay and harm by the majrity and the dissent **Understand at that a sectin 7 argument can challenge a statute where the cmmn law can t 115

117 **we have different threshld issues but are relying n the same factrs (Baker) **Be aware that the cases abut the security certificates seem t be unique generally we can t prbably get further under the cmmn law S. 35 prcedural rights the Duty t cnsult and accmmdate (DTC&A) DUTY TO CONSULT This is imprtant because it is imprtant t understand ur cnstitutin as a whle The duty t cnsult and accmmdate Abriginal peples has been recgnized by the SCC The cnsultatin element under sectin 35 is NOT cmpletely distinctive! The curts have made this clear The duty f fairness, sectin 7 and duty t cnsult shuld all be understd tgether The idea that sectin 35 is separate is nt accurate it is all cnnected These ideas have a lng histry (example: ryal prclamatin) Cnsultatin has als been an element f the justificatin f infringement n a right Keep in Mind hw Different JR is When we have a rights case (such as an abriginal right) happen either have a defence t regulatry charges, r mre recently they bring frward claims f rights t seek a declaratin f the curts Duty t cnsult and accmmdate cases cme frward as challenges t gvernment decisins Petitins Statutry refrm f the cmmn law prergative writs (KEEP THIS IN MIND) frm the beginning f the class JUDICIAL REVIEW PROCEDURES ACT!! This is hw these cases sme frward We are asking the curts t review legality Is this different significant? YES this abut the time it takes t actually take smething t a trial, and the duty t cnsult des nt require prf f rights s its MUCH faster (als different recrds etc) The cntent f the duty t cnsult is very similar t the duty f fairness The Framewrk 1. Is there a duty? (Threshld r trigger) 2. Where is the cntent f the duty? 3. Has the duty been met? Prcedure and Abriginal rights DTC&A was always part f framewrk Justificatin test under Sparrw, Delgamuukw, Tsilhqt in Due prcess in remval f Abriginal lands (by cnsent) als has a lng histry 1763 Ryal Prclamatin and surrender requirements DTC&A cases versus Rights cases Rights cases: Prf f rights as defence t regulatry r criminal charges (e.g., Van der Peet) r pursuit f a declaratin f rights (e.g., Delgamuukw, Lax Kw alaams, Tsihlqt in Natin) DTC&A cases: JR f gvernment decisins (e.g., Haida Natin, Mikisew Cree) Is this difference significant? Why? The Trigger Ri Tint breaks this dwn int 3 elements: 1. The Crwn has real r cnstructive knwledge f the ptential existence f an abriginal right 2. The Crwn cntemplates cnduct 116

118 117 The Surce 3. With ptential adverse affects Haida Natin arse frm lng standing title claims by the Haida Natin, which claimed that BC was required t cnsult with them abut he use f their abriginal title lands The bjected t the lgging peratins n their land The SCC fund in favur f the Haida Natin and, in the prcess, expanded the scpe f prcedural bligatins wned t Abriginal peples in relatin t their cnstitutinal right beynd thse previusly recgnized in Sparrw. Haida Natin v BC (Minister f Frests), 2004 SCC FACTS: The gvernment hld legal title t the land, in exercising that legal title it granted W the right t harvest the frest in Blck 6 f the land. The Haida peple claim title t the land title which they are in the prcess f trying t prve (they bject t the harvesting) ISSUE: In this situatin what duty (if any) des the gvernment we t the Haida peple? AKA are they required t cnsult with them abut the decisin t harvest and accmmdate their cncerns OUTCOME Their claim is strng, but it is als cmplex and will take many years t prve The gvernment has a legal duty t cnsult with the Haida peple abut the harvesting f timber Gd faith cnsultatin may in turn lead t an bligatin t accmmdate Haida cncerns Cnsultatin must be meaningful There is nt duty t reach an agreement The duty t cnsult, and where apprpriate accmmdate cannt be discharge by delegatin t W and W des nt we any independent duty t cnsult r accmmdate The gvernment s duty t cnsult with abriginal peples and accmmdate their interest is grunded in the HONOUR OF THE CROWN The hnur f the crwn is always at stake when dealing with abriginal peples The hnr f the crwn gives rise t different duties in different circumstances Threshld The Threshld Questin Whether a duty t cnsult and accmmdate exists in a given cntext? It exists where the Crwn has knwledge f an existing r ptential Abriginal r treaty right and cntemplates cnduct that ptentially affects that right adversely Crwn knwledge can be cnstructive, and the ptential Abriginal r treat right is assessed under a credible claim standard Similar t the cmmn law duty f fairness, the threshld is nt difficult t crss Haida Natin and Ri Tint refined and clarified the issues at the threshld stage Haida Natin v BC, 2004 SCC FACTS: Same as abve ISSUE: When des the duty t cnsult and accmmdate arise? OUTCOME The gvernment argues: They are under n duty t cnsult and accmmdate prir t a final determinatin f the scpe and cntent f the right claimed Prir t prf f the right there exists nly a brad cmmn law duty f fairness based n the general rule that an administrative decisin that affects the rights, privileges r interests f an individual triggers the applicatin f the duty f fairness They say that beynd general administrative law bligatins, the duty t cnsult and accmmdate arises nly where the gvernment has taken n the bligatin f prtecting a specific abriginal interest r is seeking t limit an established interest

119 They say there wuld be practical difficulties in the enfrcement f a duty t cnsult r accmmdate unprven claims The gvernment arguments d nt withstand scrutiny Neither the authrities nr practical cnsideratin supprt that view that the duty t cnsult and, it apprpriate accmmdate, arises nly upn a final determinatin f the scpe and cntent f that right When des the duty arise? The fundatin f the duty in the Crwn s hnur and the gal f recnciliatin suggests that the duty arises when the Crwn has knwledge, real r cnstructive, f the ptential existence f the Abriginal right r title and cntemplates cnduct that might adversely affect it There is a distinctin between knwledge sufficient t trigger a duty t cnsult and if apprpriate accmmdate and the cntent r scpe f the duty is a particular case Knwledge f a credible, but unprven claim suffice t trigger a duty t cnsult and accmmdate The cntent f the duty varies with the circumstances What is demanded f the gvernment may vary with the strength f the claim and the circumstances, but at a minimum but be cnsistent with the hnur f the crwn Ri Tint Alcan Inc v Carrier Sekani Tribal Cuncil, SCC 2010 FACTS: this case cncerns the sale f electricity frm a pwer plan that supplied an aluminum smelter n the Nechak River in BC ISSUE When des the duty t cnsult arise? OUTCOME TEST can be brken dwn int three elements [Haida] 1. The Crwn s Knwledge, actual r cnstructive f a ptential Abriginal Claim r right T trigger the duty t cnsult the crwn must have real r cnstructive knwledge f acliam t the resurce r land t which it attaches The threshld, infrmed by the need t maintain the hnur f the crwn, is nt high Actual knwledge-arises when the claim has been filed in curt r advanced in the cntext f negtiatins, r when a treaty right may be impacted Cnstructive Knwledge-arises when lands are knwn r reasnably suspected t have been traditinally ccupied by an Abriginal cmmunity r an impact n rights may reasnably be anticipated While the existence f a ptential claim is essential, prf that the claim will succeed later is nt what is required is a credible claim 2. Cntemplated Crwn Cnduct There must be crwn cnduct r a crwn decisin that engages a ptential abriginal right What is requires is cnduct that may adversely impact the claim r right in questin Such actin is nt cnfined t gvernment exercise f statutry pwers Gvernment actin is nt cnfined t decisins r cnduct which have an immediate impact n lands and resurces A ptential adverse impact suffices Thus the duty t cnsult extend t strategic, higher level decisins that may have an impact n Abriginal claims and rights 3. The Ptential that the cntemplated cnduct may adversely affect an abriginal claim r right The claimant must shw a casual relatinship between the prpsed gvernment cnduct r decisin and a ptential fr adverse impacts n pending Abriginal claims r rights Past wrngs, including previus breaches f the duty t cnsult, d nt suffice There must be an appreciable adverse affect n the first natins ability t exercise their abriginal right The adverse effect must be n the future exercise f the right itself, an adverse affect n a first natins future negtiating psitin des nt suffice Adverse impacts extend t any effect that may prejudice a pending Abriginal claim r right 118

120 An underlying r cntinuing breach, while remediable in ther ways, is nt an adverse impact fr the purpses f determining whether a particular gvernment decisin gives rise t a duty t cnsult The duty t cnsult is designed t prevent damage t Abriginal claims and rights while claim negtiatins are underway The questin f whether there is a claim r right that ptentially may be adversely impacted by the current gvernment cnduct r decisin in questin Prir and cntinuing breaches, including prir failures t cnsult, will nly trigger a duty t cnsult if the present decisin has the ptential f causing a nvel adverse impact n a present claim r existing right The duty t cnsult is grunded in the hnur f the crwn The duty has bth legal and cnstitutinal character The nature f the duty varies with the situatin; the richness f the required cnsultatin increases with the strength f the prima facie The remedy fr a breach f the duty t cnsult varies with the situatin The crwns failure t cnsult can lead t a number f remedies ranging frm injunctive relief against the threatening activity altgether, t damages, t an rder t carry ut the cnsultatin prir t prceedings further with the prpsed gvernment cnduct The curt fund that the evidence supprted t Cmmissin s cnclusin that there were n adverse physical effects here Cntent Cntent (Haida, paras 39-42, 47) A spectrum: the scpe f the duty is prprtinate t a preliminary assessment f the strength f the case supprting the existence f the right r title, and t the seriusness f the ptentially adverse effect upn the right r title claimed. (Haida, para 39) Prcedural Aspects: E.g., prviding affected cmmunities with ntice, hlding meetings, sharing infrmatin, respnding t cmmunity cncerns. Can be fulfilled thrugh existing public cnsultatin prcesses (e.g., envirnmental assessment) in apprpriate circumstances (Taku River Tlingit (2004)) Abriginal cmmunities have an bligatin t participate in gd faith (para 42) The cntent f the cmmn law duty f fairness in a given circumstance is measured against the cncept f fairness that is well entrenched in ur legal system In cntrast, the cntent f the duty t cnsult is measured against what the hnur f the crwn requires in a given cntext This standard demands that the cnsultatin be meaningful and cntribute t the prcess f recnciliatin, and may mean that the crwn must make changes t its prpsed actin in light f infrmatin btained thrugh cnsultatins The crwns effrts d nt need t result in a perfect prcess, rather the prcess must be reasnable Under bth standards, a highly cntextual case specific analysis giving rise t a spectrum f prcedural bligatins is used t determine the required cntent Under the duty t cnsult and accmmdate, the cntent is determined in relatin t the strength f the rights claim and the seriusness f the ptential adverse impact Weaker claims and lwer levels f impact are wed duties at the lwer end f the scale, which have been described as including T the party t be cnsulting, ntice f a matter t be decided in sufficient frm and detail t allw that party t prepare its views n the matter A reasnable perid f time, in which the party t be cnsulted may prepare its views n the matter, and an pprtunity t present such views t the party bliged t cnsult AND 119

121 Full and fair cnsideratin by the party bliged t cnsult f any views presented This cntent is strikingly similar t the cnsent f a duty f fairness at the lwer end f the spectrum There is a greater ptential fr differences between the duty f fairness and the duty t cnsult at the higher end f the cnsultatin spectrum At this end f the spectrum the duty mst likely requires respnsive actin r adaptin f the prpsed gvernment cnduct t meet the standard f meaningful cnsultatin At the high end, the duty als ptentially requires the cnsent f the affect abriginal parties Haida Natin v BC, SCC 2004 FACTS: Same as abve ISSUE : What is the cntent f the duty? OUTCOME The Scpe and Cntent f the Duty t Cnsult and Accmmdate The cntent f the duty t cnsult and accmmdate varies with the circumstances What duties arise in different situatins will be defined as the case law in this area develps In general terms, the scpe f the duty is prprtinate t the a preliminary assessment f the strength f the case supprt the existing f the right r title, and t the seriusness f the ptentially adverse effects upn the right r title claimed It is nt useful t classify situatins int watertight cmpartments, different situatins requiring different respnses can be identified In all cases, the hnur f the crwn requires the crwn t act with gd faith and t prvide meaningful cnsultatin apprpriate t the situatin Gd fair is required by bth side The Crwn has n duty t agree, the cmmitment is t meaningful prcess f cnsultatin Abriginal Claimants They must nt frustrate the crwns reasnable gd faith attempts, nr shuld they take unreasnable psitins t thwart gverning frm making decisins r acting in cases where, despite meaningful cnsultatin, an agreement was nt reached The scpe f duties can be thught f n a spectrum At ne end cases where the claim t title is weak, the abriginal right is limited, r the ptential fr infringement is minr in these cases the nly duty the crwn may be t give ntice, disclse infrmatin and discuss any issues raised in respnse t the ntice At the Other End cases where a strng prima facie case fr the claim is established, the right and ptential infringement is f high significance t the Abriginal peples and the risk f nncmpensable damages is high here the cnsultatin required may entail an pprtunity t make submissins, frmal participatin in the decisin-making prcess and prvisin f written reasns t shw that Abriginal cncerns were cnsidered and t revel the impact they had n the decisin [nte these lists are nt exhaustive] Between these tw extremes will lie ther situatins each must be apprached with flexibility Meaningful cnsultatin may blige the crwn t make changes t its prpsed actin based n infrmatin btained thrugh cnsultatin Accmmdatin Where a strng prima facie case exists fr the claim and the cnsequences f gvernment prpsed decisin may adversely affect it in a significant way, addressing the Abriginal cncern may require steps t avid irreparable harm r t minimize the effects f infringement pending final reslutin f the underlying claim Where accmmdatin is requires in making decisin the crwn must balance Abriginal cncerns reasnable with the ptential impact f the decisin n the asserted right r title with ther scietal interests APPLICATION Existence f the duty Des the crwn have knwledge, real r cnstructive f the ptential existence f Abriginal rights r title and cntemplated cnduct that might adversely impact them? n the evidence YES Scpe f the Duty 120

122 The scpe f the duty f cnsultatin required will be prprtinate t a preliminary assessment f the strength f the case supprting the existence f the right r title, and t the seriusness f the ptentially adverse effect upn the right r title claimed Strength f the Case The evidence here is vluminus. The Haida claim ges beynd a mere assertin, their claims are supprted by a gd prima facie case Seriusness f Ptential Impact The evidence indicates the red cedar has lng been integral t Haida culture The crwn des have a duty t cnsult, and perhaps accmmdate here The Prvince failed t meet its duty t engage in smething significantly deeper than mere cnsultatin it failed t engage in any meaningful cnsultatin at all CLASS NOTES At the threshld level The relatinship f the duty t cnsult t legislative decisin (it sits smewhere between the duty f fairness and sectin 7) Think abut the cmpeting duties separatin f pwer (aka can t cnstrain legislature) and the duty t cnsult Duty t cnsult creates prblems fr this frmalist idea The duty t cnsult is different that ther legislative end decisins This all seems cnfusing BUT its because this is nt all mutually exclusive this is hw yu shuld lk at it it is flexible!! Yu can g dwn multiple rutes at the same time Pints f crss-fertilizatin and tensin The legislative limit (Curtreille) Is this exclusin frm the scpe f the DTC sustainable? If it isn t sustainable under the duty t cnsult, hw can it be sustainable under the duty f fairness? Is the s. 35 basis fr the DTC distinguishable as a matter f principle? If the separatin f pwers is nt threatened by cnsultatin n legislative decisins in the DTC cntext, why wuld it be in the cntext f a duty f fairness? Duty t cnsult as a freestanding basis t invalidate legislatin? 121

123 PROCEDURAL FAIRNESS-INDEPENDENCE AND IMPARTIALITY 122 **Cnstitutinal Surces Sectin 96(independence f the judiciary) and rights t fair trial (cnstitutinal cntext) D we transfer judicial independence f administrative agencies? SOURCES COMMON LAW (We will fcus n this) STATUE INTERNATIONAL SOURCES THE GOAL IMPARTIALITY Cmpnents: Independence (institutinal) Lack f bias: Persnal Institutinal

124 123 Bias: principles and variatin f the standard in administrative cntexts GOAL Impartial decisin maker Always keep in mind why we care abut this!! what des independence and impartiality mean t ur system? Nte hw ur administrative system mves away frm these ideas We must think abut what is fair in administrative cntexts! hw is ur perceptin f fairness here different? BASIC TEST RESONABLE APPREHENSION OF BIAS Key cncept: justice shuld nt nly been dne, it shuld be seen t be dne (aka perceptin) The standard fr a reasnable apprehensin f bias : [T]he apprehensin f bias must be a reasnable ne, held by reasnable and right minded peple, applying themselves t the questin and btaining theren the required infrmatin. In the wrds f the Curt f Appeal, that test is What wuld an infrmed persn view the matter realistically and practically and having thrugh the matter thrugh cnclude. (Grandpre J., Cmmittee fr Justice and Liberty v. Nat l Energy Bard) Its abut perceptins: It is f fundamental imprtance that justice shuld nt nly be dne, but shuld manifestly and undubtedly be seem t be dne. (Lrd Heward, R. v. Sussex Justices, ex party McCarthy

125 TYPES OF PERSONAL BIAS 1. Pecuniary/material interests archetypal bias cncern: financial, persnal benefit frm utcme f adjudicatin is nt permitted. Definitins f cnflict f interest may be in plicy r statute If interest is t remte, indirect, it wn t give rise t a RAB (Energy Prbe, CP v. Matsqui) 2. Relatinships (assc f parties and decisin-maker) Unin certificatin with Bard member wh had previus rle as Unin lawyer vs. disciplinary panel including cmpetitr and acrimnius frmer business partner (girlfriend f) Gets tricky in relatin t advcacy, in small cmmunities, r small pls f experts frm whm tribunal adjudicatrs may be drawn 3. Prir knwledge, invlvement f decisin maker Wewaykum (2003, SCC) Binnie J was ADM in Dept. f Justice while case was in play, then became SCC judge and participated in the appeal 15 years later. N RAB Cmmittee fr Justice and Liberty v NEB There may be statutry authrizatin fr prir invlvement (e.g., a rle in bth investigatin phase and hearing) 4. Attitudinal, including antagnism during hearing shwn thrugh questining (inquisitrial prcesses esp) shwn thrugh cntent f statements, psitins (befre hearing, during hearing, after). E.g. Baker, Chrétien/Pelletier *can verlap; nt a clsed list *these types emerge frm the cases and help identify the prblem. They are nt part f the test. The test is always RAB, as applicable t the administrative cntext. - But see distinctin btwn type #1 and type #4 in Old St Bniface, where cntext dictates that a different standard applies in relatin t type #4 than in relatin t type#1 *always subject t express legislative sanctin (esp relevant in relatin t verlapping rles and prir knwledge/invlvement) [next class: Brsseau] 124 Intrductin Next, we will cnsider the secnd limb f the rules f natural justice r prcedural fairness the principle that decisin-makers shuld be unbiased Everyne has biases in the sense f preferences, precnceptins, r predispsitins THUS the issue is nt disqualificatin f any frm f bias, but identificatin f impermissible bias N ne ught t be a judge in his r her wn cause This maxim envisages a situatin where an adjudicatr is called n t decide a matter where he r she will benefit directly frm ne f the pssible utcmes the cmmn law clearly prhibits this type f decisin makers cause Bias as a disqualifying cncept is abut mre than cause r causes in either f these senses it is als cncerned with assciatins likely t prduce predispsitins The assciatin in questin means that the cause f thers are attributed t the adjudicatr in a psitive (ne favurs ne s friends) r negative (ne des nt help ne s enemies) sense The rigrus standard fr a superir curt judge, perating in a system f strict separatin f functins and deciding cases in the slidary splendur f the adversary system, may nt be apprpriate fr all administrative agencies that are subject t the dictates f prcedural fairness There is smething f sliding scale, with mre leniency r tlerance in the dmain f discretinary decisin making having a high plicy cntent then in the case f a mre judicialized prceedings t determine bjective facts and questins f law and fcusing n an individual r a narrw range f individuals The issue f bias has been determined mstly by cmmn law standards An exceptin has been situatins where the empwering statute has spken t the questin f bias, especially by authrizing the participatin f thse wh under the cmmn law wuld be disqualified

126 125 Als, the cmmn law has been supplemented in sme cntext by cnstitutinal and quasi-cnstitutinal nrms, which may lead a curt nt nly t disqualify individuals but als t disregard statutry authrizatins, r indeed t strike dwn regimes A decisin is tainted by bias if it is based n illegitimate interests r irrelevant cnsideratins, such as the decisin makers pecuniary interests, relatinships with parties and precnceived attitudes twards the issues at stake in the prceedings An impartial decisin maker, in ther wrds, apprach a decisin with an pen mind withut bias (actual r perceived) Judicial independence In Cntract, judicial independence has as its cre the cmplete liberty f individual judges t hear and decide the cases that cme befre them. N utside, gvernment, pressure grups, individual r anther judge, shuld interfere in face, r attempt t interfere with the way in which a judge cnducts their case f makes their decisins Independence then cnntates a status r relatinship t thers, particularly t the executive branch f gvernment that rests n the bjective cnditins r guarantees including financial security, security f tenure, and administrative cntrl The bjective f judicial independence is t ensure the publics perceptin f impartiality Bias: The General Test The General test applies by the Canadian curts fr the determinatin f whether an adjudicatr r ther decisin maker shuld be disqualified is that f a REASONABLE APPREHENSION OF BIAS The test was elabrated in Cmmittee fr Justice and Liberty et al v. Natinal Energy Bard while cntained in a dissenting pinin has since achieved general acceptance The apprehensin f bias must be a reasnable ne, held by reasnable and right minded peple, applying themselves t the questin and btaining thern the required infrmatin. In the wrds f the curt f appeal, that test is What wuld an infrmed persn, viewing the mater realistically and practically-and having thught the matter thrugh-cnclude. Any variatin in the expressins shuld nt generally be treated as invlving any substantial difference in the apprach (ake these all mean the same-reasnable apprehensin, real likelihd, reasnable likelihd and reasnable suspicin they all amunt t the same standard) There are certain interests that traditinally have been seen as giving rise t disqualifying bias, they are classified int fur categries: TYPES OF BIAS (check these, n her slides she calls them different things) 1. Antagnism during a hearing by a decisin maker twards a party (r his r her cunsel r witnesses) This grund fr challenging a decisin is smetime categrized as an issue f fair prcedures n the basis that the victim has been denied the pprtunity t present his r her case Hwever, the jurisprudence als classifies such behaviur by a decisin maker as giving rise t a reasnable apprehensin f bias Mst cmmn manifestatins-unreasnably aggressive questining r cmment abut testimny This requirement f prper behaviur during a hearing is nt cnfined t the designated decisin maker, it als reaches lawyers wh are emplyed t assist a tribunal at the hearing 2. An assciatin between ne f the parties and the decisin maker [RELATIONSHIP] Varius frms f direct r indirect assciatins between decisin-makers and a party t a prceeding may give rise t a reasnable apprehensin f bias Admin law values cme int tensin with natural justice values Cases illustrate hw this is prblematic in small cmmunities etc. This might arise when: Where the decisin maker had a past prfessin relatinship with a party t the prceedings Where there is a persnal relatinship

127 Fraternizatin between the decisin0maker and a party Whether the apprehensin is reasnable depends n the frm and the cntext f interactins 3. An invlvement by a decisin maker in a preliminary stage f the decisin Cmmittee fr Justice and Liberty v Natinal Energy Bard This was a situatin f an alleged bias because f assciatin with a party and invlvement in an earlier stage f the prcess FACTS-an applicatin was made t the Natinal Energy Bard by Canadian Artic Gas Pipeline fr cnstructin f a natural gas pipeline. The chairman f the bard at the time f the applicatin was Marshall Crwe, wh has been president f Canada Develpment Crpratins befre his appintment t the Natinal Energy Bard. The applicant (artic gas) was frmed by a study grup f cmpanies interested in cnstructing a pipeline. Canada Develpment Crpratin became a member. Crwn was invlved in the study grup discussins and planning frm the time Canada Develpment Crpratin became a member until he left t jin the Natinal Energy Bard HOLDING Crwe s apparent cmmitment t a pipeline created a reasnable apprehensin f bias The mre usual situatins f prir invlvement are nes in which a decisin maker has in the same r anther capacity heard the matter befre the tribunal, r has been invlved in the investigatin and decisin t prceed with the matter 4. An attitude f a decisin maker twards the utcme Pelletier v Canada **NOTE THESE TYPES ARE NOT PART OF THE TEST IT JUST HELPS ORGANIZE THE CASES Pelletier v Canada (AG), 2008 FC Gmery inquiry re the spnsrship scandal Chretien s respnse t Gmery s small twn cheap cmment abut glfballs with his signature n them (yutube) Was Gmery s mind clsed? Cnsider standard expected f Gmery in the cntext (will cntrast with Wells in Nfld Tel later ) para 99 Pelletier v Canada (AG), 2008 FC FACTS- a Retired judge (Jhn Gmery) was appinted as cmmissiner f a plitically cntentius inquiry int the alleged misuse f gvernment funds as part f a federal spnsrship prgram aided at enhancing federal visibility in Canada and especially Quebec. Tw parties t the inquiry wh were criticized in the inquiry s reprt (Jean Cretien and Jean Pelletier) claimed an apprehensin f bias n the part f the cmmissiner t the media during the inquiry. ISSUE-Was there an apprehensin f bias? HOLDING YES the cmmissiners cnduct gave rise t an apprehensin f bias DECISION There is mre than sufficient evidence t find that an infrmed persn, viewing the matter realistically and practically and having thught the matter thrugh wuld find a reasnable apprehensin f bias n the party f the Cmmissiner The cmments he made nt nly indicate he prejudged issues, but als that he was nt impartial twards the applicant The cmmissiner frmed cnclusins abut issues befre having heard all the evidence Part f the cmmissiner s mandate if he was t investigate and reprt n the management f the spnsrship prgramme and advertising activities f gverning fficials at ALL levels thus he was nt in a psitin t cnclude that the prgram was mismanaged until having heard frm gvernment fficials in all levels that were set t testify What he said: He said that the prgramme was run in a catastrphically bad way 126

128 He was nt able t say this befre hearing all evidence Saying this befre the hearing as dne undermined the very purpse f the cmmissin f inquiry creating a sense that the prceedings were perfunctry in nature He als made cmments abut Chrétien s answers being the nly nes that cunted He said there was juicy stuff t sme this trivialized the prceedings, it gave the impressin that evidence f wrngding was frthcming A reasnable, well infrmed persn viewing the statements wuld cnclude that instead f sitting as a dispassinate decisin-maker presiding ver the hearings with t pre-established ideas regarding the cnclusins he wuld eventually reach after hearing all the evidence, the cmmissiner had a plan r checklist f the evidence that was expected and which was required t supprt pre-determined cnclusins The cmmissiner became preccupied with ensuring the sptlight f the media remained n the cmmissin s inquiry It is nt a functin f the cmmissiner t grant press interviews nr t express during such interviews an pinin f what the evidence shwed, particularly befre all evidence had been heard The cmmissiners cnduct utside f the hearing rm had a detrimental effect n the fairness f the prceedings in that the applicant was put in a psitin where he was befre a cmmissiner wh had publicly questined his cnduct and integrity This is sufficient t instill dubt in the mind f the reasnable persn as t the fairness f the inquiry prcess The media is nt an apprpriate frum in which a decisin maker is t becme engaged even when the prceedings are purpsed n educating and infrming the public It is nly when all the evidence is heard and after deliberatin f the evidence that the decisin maker is t frm cnclusins that finally t issue a judgement r reprt based n these cnclusins CLASS NOTES Nte that when there is bias it shuld be challenged right away, they did in this case (Cretien and Pelltier) Remedy-prtins f his final reprt are struck Nte this is abut apprehensin Which standard f bias applied in this case reasnable apprehensin f bias, reasnably infrmed bserver Remember the cntext: it s an inquiry here The standard expect f Gmery was higher here than in the investigative stage *Nte that because we have this standard f a reasnability infrmed bserver this can be challenged (aka yu culd have evidence shwing that he was in fact nt actually bias) *T whm des this rule against the apprehensin f bias apply? We ften see a panel f decisin makers (think f Baker) in that case the whle bdy was taken int cnsideratin t taint the prceedings Under the SCC: they are independent decisin makers (s even if ne was bias it wuldn t taint the whle panel) nte hw this ges against ur general principles (Wewaykum) Parameters f the rule against bias/sme issues: 1.Can we answer an apprehensin f bias with evidence f n actual bias? The reasnable apprehensin f bias is nt just a surrgate fr unavailable evidence, r an evidentiary device t establish the likelihd f uncnscius bias, but the manifestatin f a brader preccupatin abut the image f justice. As was said by Lrd Gff in Gugh,, there is an verriding public interest that there shuld be cnfidence in the integrity f the administratin f justice. (Wewaykum v Canada, 2003 SCC 45, at para 64) Wh is the infrmed bserver? Hw des evidence that suggests n real danger f biased appraisal influence this bserve and the public interest in the appearance f justice? (pp in textbk) 2,T whm des the rule apply? All thse substantially invlved in the decisin (e.g., Baker). 3.Des apprehensin f bias n the part f ne decisin maker taint the whle panel? Usually (Great Atlantic). But might depend n decisin-making structure, and hw much we knw abut it. Wewaykum, paras 92-93, re SCC decisin making prcess: RAB f 1 judge wuldn t taint the ther

129 128 Its all abut what cnstitutes a reasnable apprehensin. 4.Parties wh want t allege bias shuld d it as sn as the issue arises. E.g., Pelletier and Cretien re Gmery s statements. Pecuniary and Other Material Interests The cmmn law has lng treated direct pecuniary and ther interests in the utcme f a matter as disqualifying a decisin maker we may understand this as a type f attitudinal bias If a pecuniary interest is t remte it wuld give rise t a reasnable apprehensin f bias [Energy Prbe] Energy Prbe Canada, 1984 The Atmic Energy Cntrl Bard had prpsed t renew the license f a nuclear facility perated by Ontari Hydr. Energy Prbe bjected t participatin by ne bard member, Mr. Olsn, n the basis that he was president f a cmpany that supplied cables t nuclear pwer plants and was an fficial r member f several rganizatins that supprted nuclear pwer AECB rejected this bjectin and renewed the licence. Energy Prbe then challenged the decisin (unsuccessfully) based n the alleged material interest At the Federal Curt they cncluded in effect that the material interest was t remte I can find n direct pecuniary interest held my Mr. Olsn at the date f hearings in questin there was n cntract cnditinally in effect pending the utcme f the new licences t Ontari Hydr. There was n certainty that Mr. Olsn wuld sell additinal cables t Ontari Hydr fr the Pickering units. The mst that culd be said f Mr. Olsn as f the sate f the hearing was that he culd entertain a reasnable expectatin f pecuniary gain as a result f he apprval f the license. This was a tendering prcess there was n direct interest in the licencing he is deciding n Federal Curt f Appeal Upheld the Federal Curt decisin The wrd direct shuld nt be given such a strict and narrw interpretatin that any indirect r uncertain advantage wuld nt have t be cnsidered; the wrd is used in the sense f nt t remte r t cntingent r t speculative. There is nt reasn t draw a strict distinctin between direct and indirect r certain and uncertain as regards t the mnetary benefit the adjudicatr culd expect frm his determinatin. The nly ratinal requirements are that the benefit cme frm the decisin itself and that it be likely enugh effect t clur the case in his eye. The mere pssibility that a prfit culd be realized in the future ut f ther cntracts awarded is the curt f cnstructin f ther units was nt dubt t alien, cntingent and remte t cnstitute pecuniary bias with respect t the decisin t be made tat that time. Pearlman v Manitba Law Sciety Judicial Cmmittee, 1991 SCC The curt rejected the argument that a prfessinal discipline cmmittee cmpsed f fellw members was structurally biased because f the self interest f the cmmittee members in reducing cmpetitin by way f suspending r expelling ther prfessins As with ther frms f bias, a pecuniary r ther material interest may be statutrily authrized Variatins Depending n Cntext [Variatins f the Standard f Bias] The curts have recgnized that the standard f disqualifying bias may vary widely in the cntext This is particularly s in the are f prir invlvement with, and attitude tward, the matter t be decided Smetimes a curt will use the Baker factrs t guide its characterizatin f the standard f disqualifying bias t apply, r what will cnstitute a reasnable apprehensin f bias in a particular cntext. The Curt f Appeal s use the Baker analysis can be traced t Newfundland Telephne Here the SCC nted that the applicatin f the reasnable apprehensin f bias standard, where it applied must be flexible that is the standard is less strict fr a bard dealing with plicy matters than it is fr an adjudicative bard.

130 Variable standard in administrative cntexts Old St Bniface - municipal cntext - articulatin f clsed mind test: The party alleging disqualifying bias must establish that there is prejudgment f the matter, in fact, t the extent that any representatins at variance with the view, which as been adpted, wuld be futile. Aside: if this is a legislative decisin, why is there a duty f fairness in the first place? Save Richmnd Farmland La Frest (minrity, cncurring) prefers different test: At legislative end f spectrum, test fr bias allws fr clsed mind s lng as the clsed mind is the result nt f crruptin, but f hnest pinins strngly held. (quted at p. 475) 129 Newfundland Telephne C v Newfundland (Bard f Cmmissiners f Public Utilities), 1992 SCC Bards that are primarily adjudicative in their functins will be expected t cmply with the standard applicable t curts. That is t say that the cnduct f the members f the Bard shuld be such that there culd be n reasnable apprehensin f bias with regard t their decisin. At the ther end f the scale are bards with ppularly elected members such as thse dealing with planning and develpment whse members are municipal cuncillrs. With thse bards, the standard will be much mre lenient. In rder t disqualify the members a challenging party must establish that there has been a pre-judgment f the matter t such an extent that any representatins t the cntrary wuld be futile. Administrative bards that deal with matters f plicy will be clsely cmparable t the bards cmpsed f municipal cuncillrs. Fr thse bards, a strict applicatin f a reasnable apprehensin f bias as a test might undermine the very rle which has been entrusted t them by the legislature. (para 27) What standard best prmtes the values f the rule f law and/r administrative law, the clsed mind test (Old St Bniface, Nfld tel) r the hnest pinin test (La Frest in Save Richmnd Farmland, Dyzenhaus)? Newfundland Telephne C v Newfundland (Bard f Cmmissiners f Public Utilities), 1992 SCC FACTS: This case arse frm a decisin by Newfundland and Labradr public utilities bard in its respnsibility fr regulating Newfundland Telephne (the prvinces then mnply telephne service prvider). The bards cmmissiners were appinted by the prvincial cabinet. The parent statute fr the bard prvided that nly the cmmissiners culd nt be emplyed by, r have an interest in the public utility. One cmmissiner (Wells) was an advcate fr cnsumer rights. When appinted t the bard her said that he intended t play an adversarial rle as a champin f cnsumer rights. The statute did nt prvide fr r prhibit the appintment f cmmissiners as representatives f any specific grup and Well s appintment was nt challenged. Five cmmissiners f the bard (including Wells) cnducted a public hearing int the accuntants reprt t the cmmissin abut Newfundland Telephnes csts etc. Well described that pay and benefit packaged f the executive f Newfundland Telephne as ludicrus. When the hearing began Newfundland Telephne bjected t Well s participatin n the panel n the grunds that his statements created an apprehensin f bias the bard rejected this and ruled the panel culd cntinue. Well s critical cmments cntinued during the hearings. He made a number f statements t the media etc. All f these statements were made befre the bard released its decisin, in which the bard disallwed the csts f an enhanced pensin plan fr certain senir executives. ISSUE: Was there a reasnable apprehensin f bias in these circumstances? HOLDING Well s statements did nt indicate a clsed mind befre the haring BUT they did create a reasnable apprehensin f bias after the hearing was annunced (which at that pint a high standard f prcedural fairness applied) DECISION The cmpsitin f the bard can and shuld ften reflect all aspects f sciety

131 There is nt reasn why advcates fr the cnsumer r ultimate used f the regulated prduct shuld nt, in apprpriate circumstances, be members f the bard There shuld nt be any undue cncern that a bard which draws its membership frm a wide spectrum will act unfairly It can be seen that there is a great diversity f administrative bards Thse that are primarily adjudicative in their functins will be expected t cmply with the standard applicable t the curts that is t say the cnduct f the members f the bard shuld be such that there culd be n reasnable apprehensin f bias with regard t their decisin At the ther end f the scale are bards with ppularly elected members such as thse dealing with planning and develpment whse members are municipal cunsellrs in that case the standard will be much mre lenient (in rder t disqualify the members a challenging party must establish that there has been a pre-judgment f the matter t such an extent that any representatins t the cntrary wuld be futile. A member f the bard which perfrms a plicy frmatin functin shuld nt be susceptible t a charge f bias simply because f the expressin f strng pinins prir t the hearing this des nt mean there is n limits t the cnduct f bard members (it is simply a cnfirmatin f the principle tha the curts must take a flexible apprach t the prblems s that the standard which applies varies with the rle and functin f the bard which is being cnsidered. It can be seen that he bard has been given a general supervisin rle ver prvincial public utilities The bard when it believe any charges r expenses f a utility are unreasnable, may f its f vlitin summarily investigate the charges r expenses as a result f the investigatin it may rder a public hearing regarding the expenses In turn at the hearing there must be fundamental rights t prcedural fairness When determining whether any rate r charge is unreasnable the bard will assess the charges and rates in ecnmic terms in thse circumstances the bard will nt be dealing with legal questins but rather plicy issues The decisin making prcess f the bard will cme clser t the legislative end f the spectrum f administrative bards then t the adjudicative end INVESTIGATION STATGE CLOSED MIND TEST Certainly it wuld be pen t a cmmissiner during an investigative prcess t make public statements pertaining t the investigatin althugh it might be mre apprpriate t say nthing During the investigatin stage a wide license must be given t bard members t make public cmments as lng as thse statements d nt indicate a mind s clsed that any submissin wuld be futile The statements make by Well s befre the hearing d nt indicate a clsed mind The cmments were n mre than a clurful expressin f an pinin f the salaries and pensins f the executives Shuld a cmmissiner state that n matter what evidence might be disclsed as a result f the investigatin their psitin wuld nt clse, then this wuld indicate a clsed mind HEARING STAGE REASONABLE APPREHENSION OF BIAS Once the matter reaches the hearing stage a greater degree f discretin is required f a member Althugh the standard fr a cmmissiner sitting in a hearing f the bard (in these cntexts) need nt be as strict as that expected f a judge presiding ver a trial, there are still prcedural fairness requirements While the hearing was already in prgress Wells was making statements that might be understd by a reasnable bserver that he had made up his mind what his judgements wuld be befre the bard heard all the evidence These statements taken tgether give a clear indicatin that nt nly was there a reasnable apprehensin f bias, but that Mr. Wells has demnstrated that he had a clsed mind n the subject Once the rder directing the hlding f hearing was given the Utility was entitled t prcedural fairness At that stage smething mre culd and shuld be expected f the cnduct f bard members At the investigatin stage the clsed mind test was applicable Prcedural fairness than required the bard members t cnduct themselves s that there culd be n reasnable apprehensin f bias this applicatin must be flexible 130

132 This standard f cnduct will nt f curse inhibit the mst vigiurus questining f witness and cunsel by bard members Well s statements hwever were such that s lng as he remained a member f the bard hearing a reasnable apprehensin f bias existed and the hearing prceeding in an unfair way In these circumstances there is n alternative but t declare that he Order was vid CLASS NOTES We have an extensin f the clsed mind standard beynd municipal cuncillrs [at the investigatin stage here] The pecuniary interest here prbably isn t strng enugh t raise thse bias issues (aka the bards is making decisin n their wn rates) Just think abut this realistically- hw can the same persn at the investigatin stage saying all these things ( fat cats etc) then n the hearing panel hw des that lk? Des it actually make any sense? Old Bniface Residents Assn Inc v Winnipeg City, 1990 SCC Old Bniface Residents Assn Inc v Winnipeg City, 1990 SCC FACTS: This judgement arse after Winnipeg city cuncil apprved a prpsal t build t cndminium twers in the cmmunity f Old Bniface. A resident s assciatin attempted t blck the decisin n the basis that a municipal cunsellr has been invlved frm the start in mving the prpsal thrugh the municipal apprval prcess. He represented the city in discussin the prject with the develper and appeared as an advcate fr the prject at in camera meetings f the cuncil s finance cmmittee, which made a key decisin in allwed the prpsal t prceed. An electin ccurred during the prcess and the cunsellr was re-elected althugh at the public meetings he did nt disclse his earlier invlvement in the apprvals prcess. ISSUE: Was there a reasnable apprehensin f bias? HOLDING DECISION The cntent f the rules f natural justice and prcedural fairness were frmerly determined accrding t the classificatin f the functins f the tribunal r ther public bdy f fficials this is n lnger the case and the cntent f these rules is based n a number f factrs including the terms f the statute pursuant t which the bdy perates the nature f the particular functin f which it is seized and the type f decisin it is called upn t make Bth the rules f natural justice and duty f fairness are variable standards The curt decided the cntent f these rules by reference t ALL the circumstances under which the tribunal perates It is therefre necessary t examine all the factrs under which a cmmittee f cuncil perates Stating with the statute prvides fr a hearing befre a cmmittee f members f cuncil, there is nthing in the legislatin t indicate that they are t act in a capacity ther than municipal fficers With respect t enactments f zning by-laws it is well knwn that numerus cmmittees are invlves at which member s f the cuncil are expected t cte befre being called upn t hear representatins and decide the questin in the predatin and prcessing f a develpment, a municipal cunsellr is ften invlves in assisting parties supprting and ppsing the develpment with respect t their presentatins A cuncillr will ften take a stand n either side this may rdinarily run aful the rules BUT it culd nt have been intended by the legislature that this rule apply t members f cuncil with the same frce as ther tribunals whse character and functins mre clsely resemble that f a curt The test that is cnsistent with the functin f the a municipal cunsellr and enables him r her t carry ut the plitical and legislative duties entrusted t the cunsellr is ne which requires that the bjectrs r supprters be heard by members f cuncil wh are capable f being persuaded The party alleging disqualifying bias MUST established that there a prejudgment f the matter, t the extent that any representatins at ariacne with the view which have been adpted will be futile 131

133 Statements by individual members f the cuncil while they may very will give rise t an apprehensin f bias will nt satisfy the test unless the curt cncludes that they are the expressin f a final pinin n the matter, which cannt be disldged It is imprtant t keep in mind that supprt in favur f a measure befre a cmmittee and a vte in favur will nt cnstitute disqualify bias in the absence f sme indicatin that the psitin taken in incapable f change APPLICATION In this case the disqualifying cnduct relied n cnsists f the cuncillr appearing befre the Finance Cmmittee and speaking n behalf f the develper This in itself wuld nt necessarily lead t the cnclusin that nes mind wuld nt be changed It is suggested that this places him in the rle f advcate fr the develper and thus gives him an interest in the issue which ges beynd the public interest This submissin wuld have substance if there was smething t suggest that the cunsellr supprt was mtivated by sme relatinship with r interest in the develper rather than in the develper rather than in the develpment The evidence shuld that he had previusly supprted the develpment n its merits, thus there is n evidence that suggest that any relatinship with the develper exists CLASS NOTES Classic municipal type f decisin (zning by-law t pass that wuld allw the develpment) The nes ppsing says the cunsellr was ging t vte in favur frm the beginning and the allege this is bias, and the vte t re-zne shuld be quashed If yu apply a reasnable apprehensin f bias test then it wuld be met (he was cntinually articulated hw he culd vte etc) The curt lked at different test/standard- Clsed mind test He is nly held t this standard f a clsed mind because the cntext is very different. Municipal cunsellrs run f certain platfrms and plicies Even thugh we dn t see the baker factrs here directly (baker hasn t happened yet), they certainly apply cntextualizatin If this is a legislative decisin why is there even prcedural fairness here?- are yu stuck at the legislative decisin? There are a lt f prcesses in this decisin The prcess fr making a by-law is in the legislatin s legislatively there is clearly a duty under legislatin The legislatin makes a duty f fairness which is then interpreted based n cmmn law etc Save Richmnd Farmland Sciety v Richmnd (Twnship), 1990 SCC Save Richmnd Farmland Sciety v Richmnd (Twnship), 1990 SCC FACTS: The Richmnd Farmland Sciety had challenged the twnship s apprval f a rezning bylaw. At a clsely split municipal cuncil reflecting knwn divisins f pinin frm an earlier electin campaign, based n allegatins f bias directed at ne f the cunsellrs. Previusly the cuncillr campaigned in favur f the rezning and gave a media interview where he allegedly said that, althugh he wuld listen attentively at public hearings int the matter, he wuld nt change his mind. While the public hearings were underway he appeared n a TV shw and advcated the rezning saying it wuld take smething significant fr him t change his mind, thugh he wuld be interested t see what emerged in the balance f the hearings. ISSUE: Was there bias? HOLDING A decisin maker is entitled t bring a clsed mind t this decisin making prcess prvided that he clsed mind is the result nt f crruptin but f hnest pinins strngly held DECISION Bth judgments f the BCCA in this case are premised n the ntin that it is an errr, in the cntext f a rezning applicatin t imply bias frm the fact that a municipal cunsellr hlds very firm and strngly states views n a matter 132

134 It must be assumed that the legislature wuld have been well aware f the fact that the very aldermen wh are called n by the statute t make the final decisin n zning by-laws initiated by municipalities themselves will ften have run fr ffice n the strength f their supprt r ppsitin t these measures If this seemingly guarantees that zning applicatin f this nature are decided befre every reaching the hearing stage, this incnsistency shuld be fr the legislature t irn ut, nt the curts Clearing in this instance, the decisin making prcess is t be lcated at the legislative end f the spectrum Accrdingly the threshld test fr establishing bias shuld be a very high ne A decisin maker is entitled t bring a clsed mind t this decisin making prcess prvided that he clsed mine is the result nt f crruptin but f hnest pinins strngly held CLASS NOTES Yu have a different articulatin f the standard that culd be applied at the legislative end f the spectrum it allwed them t bring a clsed mind (as stated abve) This articulatin DOES NOT WIN THE DAY (its just an articulatin present by a dissent here) This test guards against crruptin aka cnflicts f interest S yu have types f bias that culd be caught by this test This test is mre lenient (yu can have a clsed mind) The judges here think that the test articulated in Old Bnifice makes peple just bite their tngues, we wuld rather have peple state their pinins flat ut Statutry Authrizatin The cmmn law respnse t an allegatin f bias, especially due t the prir invlvement f an individual in the decisin-making prcess, is statutry authrizatin That is the statute may be sufficiently clear and direct t ust the cmmn law, including any requirements n impartiality r independence as a cmpnent f prcedural fairness Statutry authrizatin may justify the participatin in decisin-making f persn wh have a firm pint f view, a relatinship with ne f the parties r a stake in the utcme Brsseau v Alberta Securities Cmmissin, 1989 SCC Basic principle: In sme cases, the legislatr will determine that it is desirable, in achieving the ends f the statute, t allw fr an verlap f functins which in nrmal judicial prceedings wuld be kept separate. In assessing the activities f administrative tribunals, the curts must be sensitve t the nature f the bdy created by the legislatr. If a certain degree f verlapping f functins is authrized by statute, then, t the extent that it is authrized, it will nt generally be subject t the dctrine f reasnable apprehensin f bias per se. (p. 478) Wuld the case be better described as ne f the variatin f the standard f bias in administrative cntexts than statutry authrizatin fr what wuld cnstitute a RAB in a judicial cntext? Did L H-D apply a different apprach t statutry interpretatin than we ve seen in ther PF cases (i.e., Nichlsn)? Is it mre r less deferential t lk fr implied statutry authrity (as L H-D did here) than t lk fr express exclusin f cmmn law? Brsseau v Alberta Securities Cmmissin, 1989 SCC FACTS: it was alleged that the chair f a securities cmmissin was disqualified frm sitting in an adjudicative capacity. At the request f a senir gvernment fficial, the chair had instructin cmmissin staff t investigate a cmpany. B was the cmpany s slicitr. The chair als received the staff s investigative reprt. An adjudicative hearing was called t reslve allegatin that B made false r misleading statements in the cmpany s prspectus filed with the cmmissin. The chair was designated t sit n the panel and B argued that this gave rise t an apprehensin f bias. ISSUE: Is there an apprehensin f bias? HOLDING 133

135 S lng as the chairman did nt act utside his statutry authrity, and s lng as there is n evidence t shw invlvement abve and beynd the mere fact f the chairman s fulfilling his statutry duties, a reasnable apprehensin f bias affecting the cmmissin as whle cannt be said t exist DECISION As with mst principles there are EXCEPTIONS, ne exceptin is where the verlap f the functins which ccurs has been authrized by statute, assuming the cnstitutinality f the statute is nt in issue In rder the disqualify the cmmissin frm hearing the matter in the present case, sme f the act f the cmmissin ging beynd its statutry duties must be fund In sme cases the legislatrs will determine that is desirable, in achieving ends f the statute, t allw t an verlap f functins which in nrmal judicial prceedings wuld be keep separate in assessing the activities f administrative tribunals, the curts must be sensitive t the nature f the bdy created by the legislatr (if a certain degree f verlap f functins is authrized by statute then t the extent that it is authrized, it will nt generally be subject t eh dctrine f reasnable apprehensin f bias per se) Sectin 28 f the securities act prvides authrity fr the cmmissin t carry ut a full scale investigatin which includes a wide range f pwers Because f the frmalities surrunding the sectin 28 investigatin and because f the brad pwers it cnferred the curts agree that the cmmissin must have implied authrity t cnduct a mre infrmal review Sectin 11 f the Securities Act prvides that the chairman f the cmmissin in its Chief Executive Officer, as such it appears that it wuld necessary t have the authrity t receive infrmatin fr the Assistant Deputy Minister frm the RCMP and pass that material alng t the directr f the cmmissin Securities cmmissin by their nature undertake differ functins Given the circumstances, it is nt enugh fr the appellant t merely claim bias because the cmmissin, in undertaking its preliminary internal review did nt act like a curt It is clear frm the empwering legislatin that, in such circumstances that cmmissiner is nt meant t act like a curt, and that certain activities which might therwise be cnsidered bias frm an integral part f its peratins Securities acts in general can be said t be aimed at regulating the market and prtecting the general public This prtective rle, cmmn t all securities cmmissins gives a special character t such bdies which must be recgnized when assessing the way in which their functins are carried ut under their acts S lng as the chairman did nt act utside his statutry authrity, and s lng as there is n evidence t shw invlvement abve and beynd the mere fact f the chairman s fulfilling his statutry duties, a reasnable apprehensin f bias affecting the cmmissin as whle cannt be said t exist CLASS NOTES Prcedural fairness is cmmn law statues are statute ISSUE: hw d they interact? Securities cmmissin ften have functins f investigative, hearings etc Why are the verlapping functins a prblem? Yu will see a brach rang f evidence in the investigatin, nt all the evidence will be admissible in the hearing this may result in prejudgement They aren t cming the hearing with fresh eyes, they may have an pinin already in mind (even if the same evidence is shwn) Was there statutry authrizatin? If the statute authrizes an verlap f functin, then even if a bias is present it will be kay This was kind f a prblem here Even thugh the type f investigatin in issue was nt the ne under sectin 28, she still fund the authrity by lking at the brader rles f the cmmissin she implies this statutry authrity This apprach t statutry interpretatin may be at dds with thers we have seen in the curse, where the language had t be much mre clear t preclude duty f fairness (Nichlsn) They didn t require express language here t preclude the duty f fairness This may just be abut variatin f the standard aka a relaxed standard in the case there the legislature gives verlapping functins, saying the cmmn law recgnizes variatins in the standard f bias wuld supprt that a strict apprehensin f bias shuldn t be applied here 134

136 135 Institutinal Independence: adjudicative cntexts [Tribunal Independence] There are Three Prngs 1. Security f Tenure Judicial cntext is ur measuring stick aka life (unless remved frm a disciplinary cmmittee) We dn t really see anything like the judicial standard in the administrative ne, mre cmmn is appintments fr a certain amunt f years The essence f security f tenure fr the purpses f s. 11(d) is a tenure, whether until an age f retirement, fr a fixed term, r fr a specific adjudicative task, that is secure against interference by the executive r ther appinting authrity in a discretinary r arbitrary manner. 2. Financial Security the right t salary and pensin shuld be established by law and nt be subject t arbitrary interference by the executive in a manner that culd affect judicial independence. 3. Institutinal (administrative) independence the institutinal independence f the tribunal with respect t matters f administratin bearing directly n the exercise f its judicial functin. * Recall: Judicial Independence is an unwritten cnstitutinal principle (but grunded in ss f 1867 Act), that has been applied t inferir curts (i.e., prvincial curts); Prvincial Judges Ref. Nte that the prvincial superir curts are created by statute and are nt gverned by sectin 96 but the principle is extended as an unwritten cnstitutinal principle The SCC has accepted that bias culd be institutinal as well as individual. If a tribunal were set up in a way that created a reasnable apprehensin f bias, the curt culd se aside the tribunals decisin n the basis f institutinal bias Where institutinal prblems were the result f internal chices abut mdes f peratin, this interventin was based n the cmmn law Where the structures were established by statute, the curt wuld need cnstitutinal r quasicnstitutinal basis n which t intervene Quebec Inc v Quebec (Regie des permis d lcl), 1996 SCC Standard at cmmn law (frm R v Lippé): a well-infrmed persn, viewing the matter realistically and practically and having thrugh the matter thrugh wuld have a reasnable apprehensin f bias in a substantial number f cases. In this regard, all factrs must be cnsidered, but the guarantees prvided fr in the legislatin t cunter the prejudicial effects f certain institutinal characteristics must be given special attentin (at para 44, p. 483) What is wrng with the way the Régie perates accrding t the SCC? Are these cncerns nes f Independence and/r bias? And what is required t crrect the cncerns? What were the challenges t the Régie n the grunds f independence? Can a salary structure include annual bnuses (based n annual evaluatins f Chair see p. 484) and satisfy the principle f independence? Quebec Inc v Quebec (Regie des permis d lcl), 1996 SCC FACTS: A cmpany whse liqur permits were revked challenged varius prvisins f the Quebec liqur licencing statute. The prvisins dealt with bth the peratin and structure f the Regie. ISSUE HOLDING REASONING Impartiality like independence, has an institutinal aspect

137 The bjective status f the tribunal can be as relevant fr the impartiality requirement as fr the independence In this case the respndent s cncerns are related first t the Regies multiple functins and t the impact f that multiplicity f functins n the duties f its varius emplyees The determinatin f institutinal bias presuppses that a well infrmed persn, viewing the matter realistically and practically (and having thught the matter thrugh) wuld have a reasnable apprehensin f bias in a substantial number f cases. Whether appearing befre an administrative tribunal r a curt f law, a litigant has a right t expect that an impartial adjudicatr will deal with his r her claims The infrmed persn assessment will always depend n the circumstances fr instance the nature f the dispute t be decided, and ther duties f the administrative agency and the peratinal cntext as a whle The arguments against the Regie relate primarily t its rle at varius stages in the liqur permit cancellatin prcess the act allws emplyees f the Regie t participate in the investigatin, filing f cmplaints, the presentatin f the case t directrs Althugh verlapping functins are nt always a grup fr cncern, it must nevertheless nt result in excessively clse relatins amng emplyees invlved in different stages f the prcess In practice, emplyees f the Regie are invlved at every stage f the prcess leading up t the cancellatin f a permit (frm investigatin t adjudicatin) If the Regie decides t hld a hearing, a ntice f summns drafted by a legal services lawyer is sent t the permit hlder- in this case the ntice was signed by the chairman f the Regie A hearing is then held befre at least tw different directrs designated by the chairman, ne f the legal services lawyers acts as cunsel fr the Regie at the hearing The prceedings are cmplete with the publicatin f written reasns A detailed descriptin f the Regie s structure and peratins shws that the issue f the rle f the lawyers emplyed by legal services is at the heart f this appeal an infrmed persn having thught the matter thrugh wuld in this regard have reasnable apprehensin f bias in a substantial number f cases The annual reprt and the silence in the act and regulatins leaves pen the pssibility f the same jurist perfrming varius functins in the same matter The reprt mentins n measures taken t separate the lawyers invlved at different stages f the prcess Yet it seems that such measures wuld be essential in the circumstances The pssibility that a jurist wh has made submissin t the directrs might then advise them in respect f the same matter is disturbing, especially since sme f the directrs have n legal training In this case, the Regie s lawyers culd nt advise the directrs and make submissins t them withut there being a reasnable apprehensin f bias [this des nt mean that jurist in the emply f an administrative tribunal can never play any rle in the preparatin f reasns] The functin f prsecutr and adjudicatr cannt be exercised tgether in this manner A lack f evidence makes it difficult t assess the Regie s peratins-it must be nted hwever that the act and regulatins authrize the chairman t initiate an investigatin, decide t hld a hearing, cnstitute the panel that is t head the case and include themselves n the panel if they desire The fact that the Regie, as an institutin participates in the prcess f investigatin, summning and adjudicatin is nt it itself prblematic-hwever the pssibility that a particular directr culd, fllwing an investigatin, decide t hld a hearing and culd then participate in the decisin making prcess wuld cause an infrmed persn t have a reasnable apprehensin f bias in a substantial number f cases SECOND EXTRACT The directrs cnditins f emplyment meet the minimum requirements f independence these d nt require all administrative adjudicatrs (like judges in a curt f law) t hld fficer fr life A fixed term appintment (which are cmmn) are acceptable But the remval f adjudicatrs must nt simply be at the pleasure f executives In this case the rders f appintment prvide expressly that the directrs can be dismissed nly fr certain specific reasns 136

138 In these circumstances, the directrs have sufficient security f tenure (since sanctins are available fr any arbitrary interference by the executive during a directrs term f ffice In light f the evidence as a whle, I d nt cnsider these carius factrs sufficient t raise a reasnable apprehensin with respect t the INSTITUTIONAL INDEPENDENCE f the regie It is nt unusual fr an administrative agency t be subject t the general supervisin f a member f the executive with respect t management The essential elements f institutinal independence may be summer up as judicial cntrl ver the administrative decisin that bears directly and immediately n the exercise f the judicial functin (it has nt been shwn here hw the minister might influence the decisin making prcess) The fact that the minister f Public Security is ultimately respnsible fr bth the Regie and varius plice frces cnducting investigatins wuld nt in my view cause an infrmed persn t have a reasnable apprehensin with respect t the independence f the directrs The directrs swear an ath requiring them t perfrm the duties f their ffice hnestly and fairly **It seems that the curt accepted that fr administrative tribunals as lng as members d nt serve purely at pleasure there will be sufficient security f tenure (an ffice as shrt as 2 years will d) CLASS NOTES Standard at cmmn law (frm R v Lippe) Reqie is the liqur licensing branch in Quebec Nte what the cnsequences wuld be f having a liqur license remved (it has a very big effect n business) What is wrng with the way the Regie is perating accrding t the SCC verlapping functins etc At the end f the day here if there is statutry authrizatin they have legislatin that vercmes it At lt f the prblem they fcus n is what the lawyers are ding and their invlvement, hw can we crrect this verlapping? Have separate departments handle different things Have separate rles fr peple We want t lk fr smething in the legislatin that might tell us the verlapping functins are intended by the legislature There was als challenged n the grunds f independence They are gd behaviur ffice hlders Nte there is always a ptential fr remval fr cause (which isn t really prblematic because even judges can be remved fr cause, althugh it s a bit harder) There is a variance in the term f the appintment (2-5 years) Hw are ppl reappinted? Peple culd get bnuses (fr efficiency prbably, maybe getting thrugh mre cases etc, this culd encurage them t cut crners etc), yu have a minister with a fair bit f versight, if they are ging t be reappinted it have smething t d with this bnus evaluatin prcess, Nte that when we are talking abut institutinal bias we are talking abut the full prcess f the administratin (as ppsed t saying the peple specifically handing yur file had verlapping functins yu are saying the whle prcess which allws verlapping functins is prblematic) Always think abut wh the chair is answering t? What des the statute say? Katz v Vancuver Stck Exchange, 1995 Members f the disciplinary cmmittee f the Vancuver Stck Exchange were nt appinted fr any set term, and aside frm the external legal members, were nt paid. Nnetheless, the SCC endrsed the BCA decisins that these institutinal aspects did nt pse a prblem fr independence In the Tribunals Practice, the members seems t cntinue t serve until vluntary resignatin r death, als the fact that that members did nt depend financially n their wrk at the cmmittee was seen, in the circumstances t cntribute t their independence A related cncern abut tribunal independence invlves the relatinship between individual tribunal members and the tribunals full membership in the cntext f pending adjudicatins As in ther situatins f bias, a lack f institutinal independence, based n the cmmn law can be authrized by statute 137

139 138 If the relevant state clearly authrizes the existence f a statutry scheme, there will be n remedy available unless thse affected can pint t a cnstitutinal r quasi cnstitutinal argument fr independence See Ocean Prt Ocean Prt Htel Ltd. v BC (General Manager, Liqur Cntrl and Licensing Branch), 2001 SCC Des the cnstitutinal principle apply in admin cntexts? N. Paras 23-24: Superir curts, by virtue f their rle as curts f inherent jurisdictin, are cnstitutinally required t pssess bjective guarantees f bth individual and institutinal independence. Histrically, the requirement f judicial independence develped t demarcate the fundamental divisin between the judiciary and the executive. Administrative tribunals, by cntrast, lack this cnstitutinal distinctin frm the executive. They are, in fact, created precisely fr the purpse f implementing gvernment plicy [T]he degree f independence required f a particular tribunal is a matter f discerning the intentin f Parliament r the legislature and, absent cnstitutinal cnstraints, this chice must be respected. Judicial Independence principle serves tw bjectives; nly 2 nd ne is cnstitutinal (utside f Charter ss. 7, 11(d)): 1. Rule against bias perceptins f justice being dne 2. Uphlding the rule f law and separatin f pwers a cnstitutinal principle, nt relevant t admin tribunals (at least nt this ne.) Hw are tribunals the same and hw are they different frm Inferir (prvincial) curts (which are prtected by the cnstitutinal principle f judicial independence)? The SCC s decisin in Ocean Prt is frmalist nt functinalist. Can yu explain this statement? Ocean Prt Htel Ltd. v BC (General Manager, Liqur Cntrl and Licensing Branch), 2001 SCC FACTS: a challenge was brught t the structure f the BC Licensing Bard. It was argued that the members f the bard lacked sufficient security f tenure t ensure their independence. In particular, the bard functined thrugh part time, fixed term appintments and its members culd be remved at pleasure. ISSUE: Where members f the Liqur Appeal Bard are sufficiently independent t render decisins n vilatins f the act and impse penalties? HOLDING The Regime was statutrily authrized REASONING It is well established that absent, cnstitutinal cnstraints, the degree f independence required f a particular gvernment decisin maker r tribunal is determined by its enabling statute It is the legislatures r Parliament that determines the degree f independence required f tribunal members The statute must be cnstrued as a whle t determine the degree f independence that the legislature intended Cnfrnted with silent r ambiguus legislatin, curts generally infer that Parliament r the legislature intended the tribunals prcess t cmprt with principles f natural justice In such circumstances administrative tribunals may be bund by the requirement f an independent and impartial decisin maker, ne f the fundamental principles f natural justice Like all principles f natural justice, the degree f independence required f the tribunal members may be usted by express statutry language r necessary implicatin It is NOT pen t the curts t apply a cmmn-law rule in the face f clear statutry directin curts engage in JR f administrative decisin must defer t the legislatr s intentin in assessing the degree f independence required f the tribunal in questin Superir curts, by virtue f their rle as curts f inherent jurisdictin, are cnstitutinally required t pssess bjective guarantees f bth individual and institutinal independence (the same cnstitutinal imperative applies t the prvincial curts) By CONTRAST administrative tribunals lack this cnstitutinal distinctin frm the executive, they are in fact created precisely fr the purpse f implementing gvernment plicy

140 Implementatin f that plicy may require them t make quasi judicial decisin, they that may be seen as spanning the cnstitutinal divide between the executive and judicial branches Given their primary plicy making functin, it is prperly the rle and respnsibility f Parliament and the legislatures t determine the cmpsitin and structure required by a tribunal t discharge the respnsibilities bestwed upn it While tribunals may smetimes attract Charter Requirements f independence, as a general rule they d nt Thus the degree f independence required f a particular tribunal is a matter f discerning the intentin f parliament r the legislatures and absent cnstitutinal cnstraints this chice must be respected In this case, the legislatures f BC spke directly t the nature f the appintments f the Liqur Appeal Bard (sectin 30(2)(a) the chair and members serve at the pleasure f the lieutenant gvernr in cuncil) The legislatures intentin that the bard members shuld serve at pleasure, as expressed in the statute, is unequivcal It des nt permit the argument that the statute is ambiguus and hence shuld be read as impsing a higher degrees f independence t meet the requirements f natural justice In each case, ne must face the questin What did the legislature intend? Where the intentin f the legislature, as here, in unequivcal there is n rm t imprt cmmn law dctrines f independence, hwever inviting it may be fr the curt t d s The bard it nt a curt, nr des it apprach the cnstitutinal rle f the curts. It is first and fremst a licensing bdy. The suspensin cmplained f was an incident f the bard s licensing functin. Licenses are granted n cnditin f cmpliance with the Act, and can be suspended fr nn-cmpliance. The exercise f pwer here at issue falls squarely within the executive pwer f the prvincial gvernment. CLASS NOTES DOES THE CONSTITUIONAL PRINCIPLES OF JUDICIAL INDPENDENCE APPLY IN ADMINISTRATIVE CONEXT? NO Here they were at pleasure appintment? Can an at pleasure appintment ever be sufficiently independent? They have n security f jb, the gvernment des nt have t have a reasn t dismiss S this then raises the questins f what the gvernment wuld be lking fr in their appintments? What kind f plitical issues might cme up in appintments? The liqur appeal bard is quasi-judicial-they hear appeals and can issue sanctins The curt says that the statute says very clearly the appintees are at pleasure, there is nthing we can d abut it This appeal tribunals are still part f the executive, as part f the executive they d NOT have access t the unwritten cnstitutinal principles f judicial independence the executive can decide n their structure including remving peple at pleasure Nte there is a criminal flavur here the BCCA did say the principles applied, the SCC revered that We are just lking at the rules f hw they are paid, appinted and run their business this is different than when we are lking at the reasnable apprehensin f bias Aka n yu can t use the cmmn law t trump a statute The argument fr the extensin f the principles t the tribunals because they have been extended t prvincial curts, and bth are created by statute AND administrative tribunals are ding what curts d in sme instances (s why wuldn t we apply the principles in these cases shuld that same prtectin be required? Maybe nt as high, but appintments are pleasure wuld nt be kay etc) Example: residential tenancy bard (they d what curts used t d, adjudicate disputes between peple etc) This decisin is rather frmalist WHY? They are drawing lines between the separatin f pwers This case is a marker f the cntinuatin f frmalist appraches 139

141 140 Tw mre attempts t apply the cnstitutinal principle in administrative cntexts: McKenzie, 2006 BCSC Res tenancies adjudicatr; principle applied. Why? Hw was Ocean Prt Htel distinguished? Sask Fed f Labur v Sask (2013, Sask CA) Chair and vice-chairs f Labur Relatins Bard dismissed by new gvernment; principle nt applied. Attempt t characterize LRB as mre adjudicative (like McKenzie; suppsedly in cntrast t Ocean Prt) failed. Mckenzie v Minister f Public Safety and Slicitr General, 2006 BCCA A case invlving a residential tendency adjudicatr whse appintment was rescinded mid term The curt decided that the unwritten cnstitutinal guarantees f judicial independence, as a reflectin f the rule f law, extended t residential tenancy adjudicatrs By analgy, the curt held that these adjudicatrs whse functins were highly adjudicative had been taken directly frm curts f civil jurisdictin, shuld als enjy unwritten guarantees f independence The BC curt f appeal dismissed an appear frm the trial judgement as mt because the prvincial legislature had since amended the statute n which the gvernment relied t rescind M s appintment The SCC denied leave t appeal CLASS NOTES This is the nly authrity where the unwritten principle f judicial independence is applied in administrative cntext, this is distinguished frm Ocean Prt because f the nature f the residential tenancy bard This is the nly successful time it was applied and hasn t been applied t succeed in ther cases Saskatchewan Federatin f Labur v Saskatchewan, 2010 SKCA A newly elected gvernment issues an rder in cuncil that terminated the terms f ffice f the chair and tw vice-chairs f the Saskatchewan Labur Relatins Bard. Accrding t the new premier, the decisin was unnecessary because his gvernment lacked cnfidence in the willingness f the chair and vice-chairs t give effect t the plicy chices embdies in prpsed amendments t the Saskatchewan labur legislatin Several unins sught an rder quashing the rder in cuncil The Saskatchewan curt f appeal decided that it was clearly authrized by sectin 20 f Saskatchewan s interpretatin act The curt dismissed the pssibility that the legislature intended t exclude quasi-judicial tribunals, lie the Labur Relatins Bard frm the applicatin f sectin 20 because an amendment t that effect had been prpsed and defeated The unins then brught a new prceeding making arguments based n that principles which the curt declined t extent t the labur bard after applying Ocean Prt CLASS NOTES Dispute what the statute said, the Interpretatin Act said that when a new gvernment they culd change peple N security They try t characterize it as adjudicative (pulling frm Mackenzie) BUT this argument failed Keen v. Canada (Attrney General), 2009 FC What was Keen s/the Cmmissin s respnsibility under the Nuclear Safety and Cntrl Act in relatin t medical uses f nuclear prducts? What was the scpe f Cabinet s authrity t issue directives? What respnsibility did the Cmmissin have t the Minister in relatin t its decisins n a particular license? Interactin with Dunsmuir what prblems des an at pleasure appintment pse fr tribunal independence? Did Hughes J get the decisin right? Shuld such appintments attract mre hearing rights, and hw might such prtectins supprt independence where an appintment is at pleasure? Keen v. Canada (Attrney General), 2009 FC FACTS: The Applicant Linda Keen was, until January 15, 2008, the President f the Canadian Nuclear Safety Cmmissin as well as a member f that Cmmissin. On that day the Gvernr in Cuncil by Order in Cuncil (OIC), terminated her designatin as President. She was nt terminated as a member f the Cmmissin. Later, by a letter

142 addressed t the Prime Minister dated September 22, 2008, Ms Keen advised that she culd n lnger cntinue in a psitin as member f the Cmmissin. Between thse tw dates she was pursuing an actin fr relief (alleging the OIC was unlawful etc). Cunsel fr the Respndent, Attrney General f Canada, by way f a preliminary bjectin, sught t have the Curt refuse t entertain the applicatin n the basis f mtness. Given Ms. Keen's resignatin as a member f the Cmmissin, it was argued, she wuld n lnger be eligible fr appintment as President in any event. **MORE FACTS BELOW IN REASONING ISSUE: Did she hld her ffice at pleasure r gd behaviur? [which infrms the prcedural rights she is entitled t] HOLDING Ms. Keen's designatin as President f the Cmmissin was "at pleasure". Therefre the circumstances f her terminatin as President were sufficient t satisfy the requirements f fairness and natural justice as set ut in Dunsmuir supra. REASONING Relevant Legislatin-Nuclear Safety and Cntrl Act Sectin 10 f the Act prvides that the Cmmissin shall cmprise nt mre than seven permanent members and an unstated number f temprary members t be appinted by the Gvernr in Cuncil. One f the permanent members is t be the President. A member hlds ffice "during gd behaviur". N special prvisin as t "gd behaviur" r therwise is made in respect f the President. Sectin 12 f the Act deals specifically with the President wh is t be the chief executive fficer and has supervisin ver and directin f the wrk f the members, fficers and emplyees f the Cmmissin. Subsectin (4) requires the President t prvide t the Minister f Natinal Resurces certain reprts as required Sectin 19 f the Act prvides that the Gvernr in Cuncil may issue "directives" t the Cmmissin which are binding n the Cmmissin: In brief, the Cmmissin grants licences t perate nuclear facilities and is t hld hearings in that regard. Thse licences, even at the Cmmissin's wn initiative may be revisited The Istpe Facility Amng the nuclear facilities subject t licence by the Cmmissin is a reactr (Natinal Research Universal-NRU) lcated in Chalk River, Ontari perated by a Crwn crpratin The licence granted by the Cmmissin respecting this reactr required that tw pumps be suitably cnnected t an emergency pwer supply s as t ensure safe peratin. In Nvember 2007 it was discvered, during a rutine plant shutdwn, that the tw pumps were nt cnnected t the emergency pwer supply as required by the licence. AECL cnfirmed in writing that this was the case. They suggested just having ne pump, which was sht dwn by the cmmissin, wh tld them the reactr had t remain shut dwn until there were tw pumps Remval f Keen On Dec 10 th a directive was issues by the Gvernr in Cuncil (but Keen didn t get it until after 11 the next day) Then Bill C-38, assented t December 12, 2007 as S.C. 2007, c. 31, permits the re-pening f the AECL reactr fr a perid f 120 days despite any cnditins f the licence granted by the Cmmissin On December 27, 2007 the Minister wrte a letter t Ms. Keen expressing deep cncern with respect t the actins f the Cmmissin and advising that he was cnsidering making a recmmendatin t the Gvernr in Cuncil that her designatin as President be terminated while maintaining her as a fulltime member f the Cmmissin. The letter said a bunch f stuff including-that her failure t immediately take the actins in the directive prmted the legislature t take the drastic measures f making Bill C-38 Ms. Keen replied n January 8, 2008 by an eight page letter t which was attached a twenty-seven page detailed narrative f the events and actins in questin. The Minister did nt reply t Ms. Keen's letter f January 8. Instead n January 15, 2008 the Gvernr in Cuncil, n recmmendatin f the Minister, issued an Order in Cuncil terminating the designatin f Ms. Keen as President f the Cmmissin withut affecting her status as full-time permanent member f that Cmmissin 141

143 On September 22, 2008 Ms. Keen sent a letter t the Prime Minister advising that, effective immediately, she wuld n lnger serve as a Member f the Cmmissin. On the basis f this letter, the Respndent requested that the Curt decline t hear the matter n the grunds f mtness. The curt discussed the dctrine f mtness and, applying it t the facts f this case, determined that the matter was nt mt Nature f Keens Appintment Appintments t judicial r senir administrative psitins made by the federal gvernment fall int tw general categries, thse that are made "at pleasure" and thse that are made "during gd behaviur". The Interpretatin Act, R.S.C. 1985, c. I-21 prvides in sectin 23 that every public fficer is deemed t hld ffice "during pleasure" unless therwise expressed in the relevant enactment, cmmissin r instrument f appintment In Csgrve the Federal Curt f Appeal stressed the nature f judicial independence and the cncern that judges may deal with and decide their cases free frm inapprpriate scrutiny by the legislative and executive branches f gvernment. Turning t the scheme f the Nuclear Safety and Cntrl Act, sectin 10, prvides that the Cmmissin shall cmprise nt mre than seven permanent members wh may be either full-time r part-time. Subsectin 10(5) states that each member hlds ffice "during gd behaviur". The President is designated by the Gvernr in Cuncil accrding t sub-sectin 10(3) frm the grup f permanent full-time members. The Act is silent as t whether the designatin as President is "during gd behaviur" r "at pleasure". If that designatin was "at pleasure" the evidence shws that Ms. Keen was affrded the prcedural fairness cntemplated by Dunsmuir I am, therefre, satisfied that, if the designatin f Ms. Keen as President f the Cmmissin was "at pleasure", then the requirements f prcedural fairness have been satisfied and the dismissal cannt be set aside. On the ther hand, if the designatin f Ms. Keen as President was "during gd behaviur", it is quite clear that neither the Minister nr the Gvernr in Cuncil have prvided Ms. Keen adequate infrmatin setting ut the grunds upn which it was believed that she lacked gd behaviur Ms. Keen's letter f January adequately rebuts any suggestin f lack f gd behaviur. The failure f the Minister t enter int further dialgue r hld sme frm f independent inquiry demnstrates a clear lack f fairness Ms. Keen's cunsel argues that her designatin as President was "during gd behaviur", fr a number f reasns: 1. She was tld by certain gvernment fficials during interviews at the time f her appintment that she wuld be designated as President during gd behaviur. the curt is unsatisfied with any evidence that supprt this 2. The psitin f President is intertwined with that f a member such that bth are during gd behaviur. Curt rejects this (says that since the legislatin is silent this means it is an ffice held at pleasure ) 3. Chairs and Presidents f quasi-judicial tribunals are generally appinted during gd behaviur. 4. Members f the predecessr entity held their ffices during pleasure. The new Act prvides fr a stipulated term f ffice which implies remval nly fr cause. N, nly her psitin as a member had a term, nt as president 5. Canada's internatinal bligatins require an independent supervisry bdy. An appintment f a President n gd behaviur is mre cnsistent with these bligatins. At best, Baker says that internatinal law r bligatins may "help infrm" a decisin f the Curt Ms. Keen, while remaining as a member f the Cmmissin "during gd behaviur" must be cnsidered t hld her designatin as President, as her cmmissin frm Her Majesty says "during Our Pleasure". The decisin f this Curt in Hule affirmed by the Federal Curt f Appeal in respect f a statute almst identical in the wrding f the relevant sectins t that under cnsideratin here is binding, and if nt binding, persuasive such that the result must be the same here. CLASS NOTES 142

144 A facility was shut dwn by Keen fr security reasns and it was prducing a lt f the istpes used in Cancer diagnsis (althugh this is a by-prduct f the facility) s shutting dwn the facility will case a market disaster The gvernment issues a directive (abut plicy), they end up remving her as president There is a questin f interpretatin f her appintment they curt finds it was at pleasure s they culd dismiss her withut reasns Lw level f prcedural fairness applying On the law he didn t have a lt f rm t g the ther way, perhaps just where there was ambiguity in the legislatin culd he read mre independence principles int it Nte hw the legislature can re-legislate (like they did here) Statutry Prvisins ATA indicates rbust prtectins f independence (where it applies) Part 2 What in the statute supprts this statement? Clustering Tribunal Refrm ATA Part 3 Clustering r bundling - definitins: brings tgether a specific grup f adjudicative tribunals within a single rganizatin, but maintains each tribunal s distinct statutry jurisdictin and membership. (Gttheil, at 2) gruping tgether different tribunals that wrk in related areas and deal with related subject matter with a gal f imprve[ing] the quality f services ffered t the public by sharing resurces, expertise and administrative and prfessinal supprt. (Whitaker reprt, cited in Sssin & Baxter at 7) 143 ADMINISTRATIVE TRIBUNALS ACT Part 2 Appintments Chair's initial term and reappintment 2 (1) The chair f the tribunal may be appinted by the appinting authrity, after a merit-based prcess, t hld ffice fr an initial term f 3 t 5 years. (2) The chair may be reappinted by the appinting authrity, after a merit-based prcess, fr additinal terms f up t 5 years. Member's initial term and reappintment 3 (1) A member, ther than the chair, may be appinted by the appinting authrity, after a merit-based prcess and cnsultatin with the chair, t hld ffice fr an initial term f 2 t 4 years. (2) A member may be reappinted by the appinting authrity, after a merit-based prcess, as a member f the tribunal fr additinal terms f up t 5 years. Appintment f acting chair 4 (1) If the chair expects t be absent r is absent, the chair may designate a vice chair as the acting chair fr the perid that the chair is absent. (2) If the chair expects t be absent r is absent and there is n vice chair r if there is a vice chair and the vice chair is nt willing r able t act as chair, the chair may designate a member as the acting chair fr the perid that the chair is absent. (3) Despite subsectins (1) and (2), if the chair is absent r incapacitated fr an extended perid f time, the appinting authrity may designate a vice chair as the acting chair fr the perid that the chair is absent r incapacitated. (4) Despite subsectins (1) and (2), if the chair is absent r incapacitated fr an extended perid f time and there is n vice chair r if there is a vice chair and the vice chair is nt willing r able t act as chair, the appinting authrity may designate a member, r appint an individual wh wuld therwise be qualified fr appintment as a member r as the chair, as the acting chair fr the perid that the chair is absent r incapacitated. (5) If the tribunal has n chair, the appinting authrity may appint an individual, wh is a member, r appint an individual wh wuld therwise be qualified fr appintment as a member r as the chair, as the acting chair fr a term f up t 6 mnths.

145 (6) In exceptinal circumstances an individual may be appinted as the acting chair under subsectin (5) fr an additinal term f up t 6 mnths. (7) Subsectins (3), (4) and (5) apply whether r nt an individual is designated, under the Act under which the chair is appinted, t act n behalf f the chair. (8) An individual designated r appinted under any f subsectins (1) t (5) has all the pwers and may perfrm all the duties f the chair. Member's absence r incapacitatin 5 (1) If a member is absent r incapacitated fr an extended perid f time r expects t be absent fr an extended perid f time, the appinting authrity, after cnsultatin with the chair, may appint anther persn, wh wuld therwise be qualified fr appintment as a member, t replace the member until the member returns t full duty r the member's term expires, whichever cmes first. (2) The appintment f a persn t replace a member under subsectin (1) is nt affected by the member returning t less than full duty. Member's temprary appintment 6 (1) If the tribunal requires additinal members, the chair, after cnsultatin with the minister respnsible fr the Act under which the tribunal is established, may appint an individual, wh wuld therwise be qualified fr appintment as a member, t be a member fr up t 6 mnths. (2) Under subsectin (1), an individual may be appinted t the tribunal nly twice in any 2 year perid. (3) An appinting authrity may establish cnditins and qualificatins fr appintments under subsectin (1). Pwers after resignatin r expiry f term 7 (1) If a member resigns r their appintment expires, the chair may authrize that individual t cntinue t exercise pwers as a member f the tribunal in any prceeding ver which that individual had jurisdictin immediately befre the end f their term. (2) An authrizatin under subsectin (1) cntinues until a final decisin in that prceeding is made. (3) If an individual perfrms duties under subsectin (1), sectin 10 applies. Validity f tribunal acts 7.1 An act f the tribunal is nt invalid because f a defect that is afterwards discvered in the appintment f a chair, vice chair r member. Terminatin fr cause 8 The appinting authrity may terminate the appintment f the chair, a vice chair r a member fr cause. Respnsibilities f the chair 9 The chair is respnsible fr the effective management and peratin f the tribunal and the rganizatin and allcatin f wrk amng its members. Remuneratin and benefits fr members 10 (1) In accrdance with general directives f the Treasury Bard, members must be reimbursed fr reasnable travelling and ut f pcket expenses necessarily incurred in carrying ut their duties. (2) In accrdance with general directives f the Treasury Bard, the minister respnsible fr the tribunal's enabling Act must set the remuneratin fr thse members wh are t receive remuneratin. Part 3 Clustering Designating clusters 10.1 (1) The Lieutenant Gvernr in Cuncil may, by regulatin, designate 2 r mre tribunals as a cluster if, in the pinin f the Lieutenant Gvernr in Cuncil, the matters that the tribunals deal with are such that they can perate mre effectively and efficiently as part f a cluster than alne. (2) The Lieutenant Gvernr in Cuncil may, by regulatin, d ne r bth f the fllwing: (a) remve a tribunal frm a cluster; (b) add a tribunal t a cluster. (3) If a tribunal is in a cluster, this Part applies t the tribunal despite any ther enactment. Executive chair 10.2 (1) The Lieutenant Gvernr in Cuncil may, after a merit-based prcess, appint an executive chair t be respnsible fr the effective management and peratin f all f the tribunals in a cluster. (2) The executive chair has all the pwers, duties and immunities f the chair f each tribunal in the cluster under an enactment. 144

146 (3) T the extent necessary t give effect t subsectin (2), and subject t this Part, if a tribunal is in a cluster, any reference t the chair f the tribunal in an enactment is deemed t be a reference t the executive chair f the cluster. (4) The executive chair hlds ffice fr an initial term f 3 t 5 years. (5) The executive chair may be reappinted by the Lieutenant Gvernr in Cuncil, after a merit-based prcess, fr additinal terms f up t 5 years. (6) The executive chair must have all the qualificatins required f a chair f any tribunal in the cluster under any enactment. (7) The executive chair is a member f each f the tribunals in the cluster fr which he r she is respnsible. Tribunal chairs 10.3 (1) Subject t sectin 10.6 [transitin], the appinting authrity may, after a merit-based prcess, appint a tribunal chair fr a tribunal in the cluster under the directin f the executive chair f that cluster. (2) The term f appintment f a tribunal chair is the same as the term f appintment f the chair f the tribunal under the tribunal's enabling Act. (3) A tribunal chair may be reappinted, after a merit-based prcess, n the same basis as the chair f the tribunal under the tribunal's enabling Act. (4) The executive chair may delegate t a tribunal chair a pwer r duty f the chair f the tribunal under an enactment, including a pwer under the enactment t delegate a pwer r duty t anther persn. (5) The tribunal chair has all the immunities f the chair f the tribunal under an enactment. (6) The appinting authrity may appint the executive chair f a cluster t als be the tribunal chair f a tribunal in the cluster. (7) The tribunal chair is a member f the tribunal fr which he r she is appinted. Alternate executive chair 10.4 (1) The Lieutenant Gvernr in Cuncil may designate a member f a tribunal in a cluster, ther than the executive chair f the cluster, as an alternate executive chair. (2) If the executive chair f a cluster is absent r incapacitated, the alternate executive chair has all the pwers and immunities and may perfrm all the duties f the executive chair. Validity f tribunal acts 10.5 An act f a tribunal is nt invalid because f a defect that is afterwards discvered in the appintment f an executive chair r tribunal chair. Transitin 10.6 (1) On the designatin f a tribunal as part f a cluster under sectin 10.1 (1) r (2) (b) [designating clusters], the individual appinted as chair under the tribunal's enabling Act is n lnger appinted under the tribunal's enabling Act and is deemed t be appinted as tribunal chair under sectin 10.3 [tribunal chairs]. (2) The term f the deemed appintment as tribunal chair under subsectin (1) ends n the date the individual's appintment under the tribunal's enabling Act wuld have ended if the tribunal had nt been designated as part f a cluster. (3) On a tribunal in a cluster ceasing t be in any cluster, the individual appinted as tribunal chair is deemed t be the chair under the tribunal's enabling Act fr the remainder f the term f his r her appintment as tribunal chair. (4) On an individual appinted as tribunal chair being appinted as executive chair f a cluster, the individual remains the tribunal chair until his r her appintment as tribunal chair expires r is terminated. (5) This sectin applies despite any ther prvisin in this Part. 145 Institutinal decisin making

147 Tribunal practices that challenge Judicial mdel Examples: Cnsultatin amngst decisin-makers beynd the panel n the given case (e.g., full bard meetings) Cnslidated Bathurst Agency guidelines (plicy-making, sft law) Helpful in filling in statutry gaps, develping plicy, but Might they pre-decide the case? Imprperly fetter discretin f decisin-maker re prcedure r substance? Thamtharem Als, Test case (Geza) 146

148 147 Cnsider the number f situatins where lawyer s traditinal ntins f prcedural fairness seem t be at dds with the ability f sme administrative agencies t efficiently deliver cnsistent and high quality decisins The difficulties f adhering t an essentially judicial mdel f prcedure are particularly acute fr agencies that decide thusands r even hundreds f thusands f claims each year The Paradigm f the legal cncept f prcedural fairness was develped in the cntext f the judicial decisin making prcess In which judges decide cases persnally Sme decisins f administrative agencies are made in the same persnal way (aka an identified individual fficial, r small grup f fficials, makes a decisin and take respnsibility fr it Hwever, ther decisins are the prduct f INSTITUTIONS and institutinal prcesses, and they can usefully be described as INSTITUITONAL DECISIONS Tw Dminant Themes: 1. The sheer vlume f the decisins t be made may demand a larger staff and sme arrangement fr dispersal f authrity, specializatin and cntrl 2. The range and cmplexity f the issues may make it impssible fr any individual r small grup f individuals t have the time, expertise and perspective t make an intelligent decisin Institutinal decisin making has many ptential advantages It can facilitate the prcess f a large vlume f cases, the creatin f internal checks and balances, the develpment f specializatin n the part f the members and stuff, and the prvisin f a frum fr sharing f expertise, pinins and perspectives Disadvantages f institutinal decisin making Bring dangers cmmn t bureaucracies, annymus f faceless decisin making, lss f persnal respnsibility n the part f individual decisin makers, and a diminutin in cncern fr the particular merits f individual cases There is n discrete legal dctrine abut institutinal decisin making, althugh sme aspects f the duty f fairness have prved particularly relevant: the rule restricting the delegatin f legal pwers and duties, the principles that nly thse wh heard the evidence and argument may participate in making the decisin, the duty f disclsure, and the impartiality and independence f the decisin-maker DELEGATION When a statute cnfers a pwer n a designated fficial r grup f fficials, the Latin maxim delegatus nn ptest delegare (the delegate it nt able t delegate) cmes int play Smetimes either as part f the empwering statute r ther mre general legislatin (fr example statutry interpretatin legislatin) it will be clear that the maxim has nt purchase; the legislatures selected decisin-maker r delegate will be authrized specifically t delegate his t her pwers t subrdinate fficials r thers

149 148 There is als an perating cmmn law presumptin that ministers f the crwn are entitled t act thrugh fficials in their department Vine v Natinal Dck Labur Bard, 1957 HL FACTS: the natinal dck labur bard was respnsible fr allcating dck laburers t stevedring cmpanies, and had express pwer t delegate its functins t lcal dck labur bards. V was assigned t wrk but did nt reprt, the cmpany cmplained and a discipline cmmittee f the lcal labur bard rdered V discharged. V brught an actin fr damages frm wrngful dismissal and fr a declaratin that the actin f the discipline cmmittee was vid because the lcal bard had nt pwer t delegate its disciplinary pwers. He succeeded at trial and befre the CA n the delegatin issues, it went t the Huse f Lrds. ISSUE: Can the bard delegate its disciplinary pwer? HOLDING This pwer t discipline here cannt be delegated by the bard REASONING In deciding if a persn has the pwer t delegate ne has t cnsider the nature f the duty and character f the persn Judicial authrity nrmally cannt be delegated There are many administrative duties that cannt be delegated The disciplinary pwers, where judicial r nt cannt be delegated The nn entitlement f pay, the suspensin, the ntice f dismissal must be a step take by the bard nt the delegate The penalties in sme cases may by slight but in thers very great (impact n the individual?) The cnstitutin f the bard supprts this cnclusin It is necessary t cnsider the imprtance f the duty which is delegated and the peple wh delegate In this case, the duty is t cnsider if a man will be utlawed frm the ccupatin f a lifetime This duty is placed n the bard DECIDING WITHOUT HEARING An aspect f the duty f fairness that we have nt seen s part is the general principles that nly thse members f an agency wh hear a particular case may decide it The ratinale f this requirement is that the persn wh is denied an adequate pprtunity t influence the decisin if unable t address directly thse wh make r participate in making it A simple illustratin is that it will nrmally be a breach f the duty f fairness fr a member f a hearing panel wh is unable t attend fr part f the hearing t subsequently resume sitting and participate in making the decisin the decisin much be made by the member wh heard all f the evidence and argument, prvided f curse that hey cnstitute a qurum (if they d nt the prceedings must be abandned and started ver) Delegating the Duty t Hear Cases Lcal Gvernment Bard v Arlidge, 1914 HL FACTS: The Husing and Twn Planning Act gave the cuncil the authrity t make rders clsing dwn dwelling huses that were unfit fr habitatin, and t terminate such rders if the cuncil was satisfied that changes were made. The wners were given a right f appeal t the Lcal Gvernment Bard, the bard was given the pwer t determine its wn prcedure fr these appeals (prvided it did nt dismiss any appeals withut hlding a public lcal inquiry). The cuncil made a clsing rder against a huse wned by A. The bard appinted an inspectr wh held a public inquiry and made a reprt, A made an applicatin t present his case befre the actual decisin make in the bard and was refused. A then under tk repairs and applied t have the clsing rder terminated, the applicatin was refused and A appealed again t the bard. DECISION The minister at the head f the bard is directly respnsible t Parliament

150 The vlume f wrk entrusted t him is very great and he cannt d that great bulk f it himself he is expected t btain his material vicariusly thugh his fficials and he has discharged his duty if he sees that they btain these materials fr him prperly T try t extend his duty beynd that and t insist that he and ther members f the bard shuld d everything persnally wuld be t impair his efficiency Unlike a judge in a curt he is nt nly at liberty but is cmpelled t rely n the assistance f his staff NOTE: the reasning in this case must be understd within its wider dctrinal cntext the reluctance f the curts t apply the nn-delegatin principle t the exercise by civil servants f statutry pwers cnferred n their minster [In Canada while ur curts d nt require pwers t be delegated expressly by the minister t the civil servants in the department, they cntinue t find that sme decisin exceptinally require the minister s persnal decisin] Jeffs v New Zealand Dairy Prductin and Marketing Bard, 1967 FACTS: The bard had a general pwer t gvern the prductin and marketing f milk, including the pwer t establish znes fr exclusive supply arrangements. When an infrmal agreement between tw dairy prducers regarding the supply f whle milk frm lcal prducers was due t expire, the bard reslved that a zning cmmittee cnsisting f three members f the bard shuld be set up t investigate the questin f supply and reprt back t the bard. The cmmittee decided t prceeds with a public hearing f zning applicatins that had previusly been made t the bard. Fllwing a tw day hearing, at which the cmmittee heard witnesses and received written evidence the cmmittee prepared a written reprt t the bard setting ut its recmmendatins n zning between the tw prducers. The bard accepted the recmmendatins withut alternatin and passes reslutins t give effect t them. DECISION The appellants cntend that the bard had imprperly delegated its judicial test f hearing evidence and submissins t the cmmittee; and its duty t cnsider al the evidence, ntes and submissins relative t the zning applicatin and it shuld nt have relied n the reprt f the cmmittee and s it have failed t cmply with the requirements f natural justice The bard did nt delegate t the cmmittee the duty f deciding zning applicatins the cmmittee was appinted by the bard t investigate the questin f supply between the tw cmpanies and t reprt back t the bard It did nt expressly authrize t hld a public hearing it appears t have dne s n its wn initiative when there was lack f sufficient supprt fr amalgamatin The nly material the bard had befre it when reaching its decisin was the reprt f the cmmittee in discharging f its duty t act judicially it was the bards duty t hear interested parties In this case the bard did nt hear the persns interested rally nr did it see their written statements Its members, ther than the members f the cmmittee, where nt infrmed f the evidence given On the facts f this case it des nt appear that the bard asked the cmmittee t hld the public hearing r delegated t the cmmittee any part f its duties Whether the bard heard the interested parties rally r reviewed written submissins is a matter f prcedure In sme circumstances, it may suffice fr the bard t have befre it and t cnsider an accurate summary f the relevant evidence and submissins if the summary adequately disclses the evidence and submissins t the bard Unfrtunately n such prcedures were fllwed in this case The cmmittees reprt did nt state what the evidence was and the bard reached its decisin withut cnsideratin f and in ignrance f the evidence The bard thus failed t hear the interested parties as it was under an bligatin t d in rder t discharged its duty t act judicially in the determinatin f zning applicatins Cnsultatin Amng Agency Members [Full Bard Meetings] The questin is whether, and is s t what extent, the duty f fairness precludes members f an agency panel wh heard a case frm discussing it with ther members f the agency, mst cmmnly after the hearing has ended but befre they have rendered their decisin, but als befre and during the hearing. 149

151 Internatinal Wdwrkers f American Lcal 2-69 v Cnslidated-Bathurst Packaging ltd., 1983 What was the Labur Bard s practice in issue? Parameters f the practice? What were the prblems fr the breach f the duty f fairness? What was the nature f the decisin at stake? Law vs. Plicy vs. Fact Spinka vs Gnthier wh was mre functinalist wh was mre frmalist? Prtecting impartiality f decisin-maker: Cnsultatin cannt be impsed by superir authrity within the agency; can nly be requested by decisinmakers themselves Cnsultatin has t be limited t questins f law r plicy; n reassessment f evidence by peple wh did nt hear it. (als prtects hearing rights) Decisin-makers must remain free t make final decisin Prtecting hearing rights: Parties shuld be given a chance t address any new pints f plicy r law that cme up in the curse f institutinal cnsultatins. Implicatins? Shuld tribunals publish their decisin-making prcesses? D they have t? Internatinal Wdwrkers f American Lcal 2-69 v Cnslidated-Bathurst Packaging ltd., 1983 FACTS: The Unin made an applicatin t the Ontari Labur Relatins Bard (OLRB) fr a determinatin that the emplyer had failed t bargain in gd faith, and raised a issue abut the extent f the emplyers duty t disclse its business affairs during negtiatins fr a cllective agreement (in particular when there were plans t clse n f their plants). Previusly, the bard had develped a test that impsed a duty f disclsure n the emplyer when it had taken a hard decisin t clse a plant prir t the bargaining prcess. Three members f the bard held a hearing and in the curse f that hearing bth the emplyer and unin argued that the current test shuld be changed. After the hearing, these members discussed the case with ther members f the bard at a full bard meeting and then gave a decisin uphlding the existing test, but in favur f the unins applicatin f the facts. The emplyer requested the bard recnsider this decisin and argued that if any evidence given at the hearing was discussed with ther members r if any pinins f ther members were cnsidered the decisin had been imprperly made. DECISION T perfrm its jb effectively the bard needs all the insight it can muster t evaluate the practical cnsequences f its decisins, fr it lacks the capacity t ascertain by research and investigatin just what impact its decisins have n labur relatins and the ecnmy generally The meeting impugned by the respndent must be seen as nly part f the internal administrative arrangements f the bard which have evlved t achieve a maximum regulatry effectives in a labur relatins setting In the absence f a frmalized full bard meeting, bard members and vice-chairmen wuld be driver t discuss their cases with each ther infrmally in rder the better appreciate the issues invlved and t develp a level f understanding and insight cnsistent with the large measure f deference the labur relatins system needs t be paid t render its decisins. The full bard meeting here institutinalizes these discussins the full bard meetings are merely reflective f the institutinal setting in which these individual decisins are made The respndent s submissins is really attempting t prbe the mental prcesses f the panel which rendered the decisin in questin and in ding s ignres the inherent natures f judicial decisin-making and administrative law making IWA v Cnslidated-Bathurst Packaging Ltd, 1990 SCC FACTS: Appeal frm abve (?). Additinal facts: Full bard cnsists f 48 members (but it desn t seem like everyne was at the meeting in questin), n evidence was intrduced at this full bard meeting (but it is nt clear frm the recrd what was discussed), there is n evidence that the prcedures in that meeting departed frm the nrm (aka 150

152 discussin is limited t plicy implicatins f a draft decisin), n vte r cnsensus is taken, n minuets are kept, n attendance is recrded. ISSUE: Have the rules f natural justice been vilated? [he wh decided must hear and the right t knw the case t be met? HOLDING The cnsultatin prcess adpted by the bard frmally recgnizes the disadvantages inherent in full bard meetings the safeguards attached t this cnsultatin prcess are sufficient t allay and fear f vilatin f the rules f natural justice prvided as well that parties be advised f any new evidence r grunds and given an pprtunity t respnd. REASONING [Majrity: Gnthier etc.] Things the curt ntes: The chairman says the purpse f the full bard meeting is nt t achieve abslute unifrmity in decisins The methds used at thse meeting t discuss plicy reflect the need t maintain an atmsphere where each member has the freedm t make up their wn mind Discussins at the full bard meetings at limited t plicy issues (the facts are taken as presented and n vtes are taken) There is n evidence that this meeting was used t impse any given pinin upn the members f the panel Intrductin The appellant argues that the practice f hlding full bard meetings n plicy issues cnstitutes a breach f a rule f natural justice apprpriately referred t as he wh decided must hear The appellants psitin is that the panel member must be ttally shielded frm any discussin which may cause them t change their mind even if this change f pinin is hnest, because the pssibility f undue pressure by anther bard member is t minus t be cmpatible with principles f natural justice The appellants argument raises issues with tw imprtant distinct rules f natural justice: 1. The an adjudicatr be disinterested and unbiased 2. That the parties be give adequate ntice and an pprtunity t be heard While the appellant des npt claim that the panel was biased, it des claim the full bard meeting may prevent the panel frm deciding the tpic f discussin freely and independently frm the pinins viced at the meeting The respndent unin argues that the practice f hlding a full bard meeting n imprtant plicy issues is justified Nte the different between a full bard meeting and full bard hearing Full bard hearing is simply a nrmal hearing where representatins are made by bth parties in frm f an enlarged panel cmprised f all members f the bard A full bard meeting des nt entail representatins by the parties since they are nt invited r ntified abut the meeting The curt agrees with the respndent unin that rules f natural justice must take int accunt the institutinal cnstraints faced by an administrative tribunal these tribunals are created t increase efficiency f the administratin f justice and are ften called upn t handle heavy caselads, it wuld be unrealistic t expect an administrative tribunal such as the bard t abide strictly by the rules applicable t curt f law The main issue whether given the imprtant f the plicy issue at stake in this case and the necessity f maintaining a high degree f quality and cherence in bard decisins, the rules f natural justice allw a full bard meeting t take place subject t the cnditins utlined by the curt f appeal, and if nt whether a prcedure which allws the parties t be present such as a full bard hearing is the nly acceptable alternative? The Cnsequences f the Institutinal Cnstraints Faced by the Bard The Labur Relatins Act has entrusted the bard with the respnsibility f fstering harmnius labur relatins thrugh cllective bargaining The bard has been granted the pwers thught necessary t achieve this task, nt the least f which is the pwer t decide in a final and cnclusive manner all matters which fall within its jurisdictin 151

153 It is apparent frm the size f the bards caselad and frm the number f persns which wuld sit n such an enlarged panel that hlding full bard hearings is a highly impractical way f sling imprtant plicy issues Ratinales fr hlding full bard meetings n imprtant plicy issues: The imprtance f benefiting frm the acquired experience f all the members (the rules f natural justice shuld nt discurage administrative bdies frm taking advantage f the accumulated experience f its members) The fact that the large number f persns wh participate in Bard decisins creates the pssibility that different panels will decide similar issues in a different manner (it is bvius that the administrative decisin making must be fstered t be cherent thus the bard is justified in taking measures t ensure cnflicting results are nt inadvertently reached in similar cases) Nte that full bard meetings d have sme imperfectins especially with respect t the pprtunity t be heard and the judicial independence f the decisin maker BUT we must ask whether these disadvantages are sufficiently imprtant t warrant hlding that it cnstitutes a breach f the rules f natural justice, r whether full bard meetings are cnsistent with these rules prvides that certain safeguards are bserved? The Judicial Independence f Panel Members in the Cntext f Full Bard Meetings The appellant argues that persns wh did nt hear the evidence r the submissin f the parties shuld nt be in a psitin t influence thse wh will intimately participate in the decisin As a general rules, the members f a panel wh actually participate in the decisin must have heard all the evidence as well as all the arguments presented by the parties The curt is unable t agree with the prpsitin that ANY discussin with a persn wh has nt heard the evidence necessarily vilates the resulting decisin because this discussin might influence the decisin maker The appellants main argument against the practice f hling full bard meetings is that these meetings can be used t fetter the independence f the panel members (aka vilate the lng standing principle f judicial independence) It is bvius that n utside interference may be used t cmpel r pressure a decisin maker t participate in discussins n plicy issues raised by a case n which he must render a decisin Nevertheless, discussins with clleagues d nt cnstitute, in and f themselves, infringements n the panel members capacity t decide the issues at stake independently A discussin des nt prevent a decisin maker frm adjudicating in accrdance with his wn cnscience and pinins nr des it cnstitute an bstacle f this freedm The ultimate decisin will be that f the decisin maker The relevant issue in this case is nt whether the practice f hlding full bard meetings can cause panel members t change their minds, but whether this practice impinges n the ability f the panel members t decide accrding t their pinins The danger that full bard meetings may fetter the judicial independence f panel members is nt sufficiently present t give rise t a reasnable apprehensin f bias r lack f independence within the meaning f the test stated by this curt A full bard meeting set up in accrdance with the prcedures described by the Chairman is nt impsed, it is called at the request f the hearing panel r any f its members, it is carefully designed t fster discussin withut trying t verify whether a cnsensus has been reached, n minuets are kept, n vtes taken, attendance is vluntary and attendance is nt taken, the decisin is left entirely t the hearing panel On the ther hand, it is trust that a cnsensus can be measured withut a vte and this institutinalizatin f the cnsultatin prcess carries with it a ptential fr greater influence n the panel members hwever the criteria fr independence is nt absence f influence but rather the freedm t decide accrding t nes wn cnscience The bards practice f hlding full bard meetings r the full bard meeting held n the day in questin wuld NOT be perceived by an infrmed persn viewing the matter realistically and practically-and having thught the matter thrugh-as having breached his right t a decisin reached by an independent tribunal thereby infringing this principle f natural justice 152

154 Full Bard Meetings and the Audi Alteram Partem Rule Full bard meetings held n an ex parte basis d entail sme disadvantages frm the pint f view f the audi alteram partem rule because the parties are nt aware f what is said at thse meetings In additin there is always the danger that the persns present at the meeting will discuss the evidence Fr the purpses f this applicatin f the audi alterman partem rule, a distinctin must be drawn between discussins n factual matters and discussins n legal r plicy issues The determinatin and assessment f facts are delicate tasks which turn n the credibility f the witnesses and an verall evaluatin f the relevancy f all the infrmatin presented as evidence as a general rule these tasks cannt be prperly perfrmed by persns wh have nt heard all the evidence and the rules f natural justice d nt allw such persns t vte n the results The appellant des nt claim that new evidence was adduced at the meting and the recrd des nt shw it was The defined practice f the bard at the full bard meeting is t discuss plicy issues n the basis f the facts as they were determined by the panel In this case, the recrd cntains n evidence that factual issues were discussed by the bard It is pssible t discuss the plicy issues arising frm the bdy f evidence filed befre the panel even thugh this evidence may give rise t a wide variety f factual cnclusins It is pssible t utline the varius tests which wuld be adpted by the panel and t discuss their apprpriateness frm a plicy pint f view these discussins can be segregated frm the factual decisins which will determine the utcme nce the test is adpted Plicy issues must be apprached in a different manner because they have an impact that ges beynd the reslutin f the dispute between the parties It is nt necessary t cnsider the cnditins under which full bard meetings must be held in rder t abide by the audi alterman partem rule In this respect the nly pssible breach f this rule arises when a new plicy r new argument is prpsed at a full bard meeting and a decisin is rendered n the basis f this plicy r argument withut giving the parties an pprtunity t respnd Parties must be infrmed f any new grups n which they have nt made any representatins in such cases they must be given a reasnable pprtunity t respnd But in this case there was n new plicy intrduced r applied Since its earliest develpment, the essence f the audi alteram partem rule has been given parties the fair pprtunity f answering the case against them it is true that his must be given n factual matters BUT with respect t legal r plicy arguments n raising issues f fact this is smewhat mre lenient The cnsultatin prcess by the chairman in recnsidering decisin des nt vilate his rule prvided that factual issue are nt discussed at the full bard meeting and that parties are given a reasnable pprtunity t respnd t any new grunds arising frm such a meeting On the facts, there is n evidence that anything new was put frth, thus the appellant has failed t prve the rule was vilated here Cnclusins The advantaged f an institutinalized cnsultatin prcess are bvius, and the curt des nt agree that this practice necessarily vilates the rules f natural justice these rules f natural justice must have a flexibility required t take int accunt institutinal pressures faced by mdern administrative tribunals as well as the risks inherent in such a practice The cnsultatin prcess adpted by the bard frmally recgnizes the disadvantages inherent in full bard meetings the safeguards attached t this cnsultatin prcess are sufficient t allay and fear f vilatin f the rules f natural justice prvided as well that parties be advised f any new evidence r grunds and given an pprtunity t respnd. CLASS NOTES This is a pretty big bard The plicy issues here the issue f disclsure [when it has t happen] In the middle f cllective bargaining when emplyer may be shutting dwn a plant, when and if des the emplyer have t disclse this in the curse f bargaining there was a plicy but bth the emplyer and unin wanted this changed (prbably each in their favur) This might be called a mixed fact and law 153

155 Here yu might just call this a rule it can be described in a way that is divrced frm the facts f the case Why dn t they just call it a law/rule as ppsed t calling it plicy? because stare decisis des nt apply [the bligatin by the statute is that they decide each case, anything else is nt what the statute requires] This means the bard is nt bund by previus decisins BUT decisins f the SCC abut the cntent f prcedural fairness wuld be binding Functinally if this was a curt yu wuldn t think twice abut calling this a rule f law There is a lt f discussin abut he nature f tribunal decisin making [aka what is different abut the administrative law wrld than the curt] Spinka did nt agree He characterizes this thing has an inescapable factual element in it it in anchred in fact He is saying that what the bard is deciding is factual Gntier in respnse t this says in the practice f the full bard meeting there is sufficient prtectin (they are nt talking abut the facts) This case is imprtant fr hw much scpe f SCC allws fr these full bard meetings- think abut this as ppsed t what judges might d (aka discuss things with ther judges) The cnsultatin can t be impsed, they dn t take ntes, the panel is the decisin maker (there are all f these well thught ut prcedures) At the end f the day we can t trust that they wnt talk abut the facts f the case, and that there wnt be sme undue influence Prtecting the hearing rights if smething new cmes up then the parties shuld be given a chance t address any new pints that came up in the curse f institutinal cnsultatin [Institutinal cnsultatin what is ging n here with the full bard meetings] This case implied that we shuld knw when there is a full bard meeting (but n the facts there and in reality ften lawyers fr parties will find ut abut these bard meetings by chance) Agency Guidelines Sme administrative agencies make extensive use f guidelines n the interpretatin f their enabling legislatin and the exercise f their statutry discretin Guidelines can prvide valuable assistance t agency members sitting n a panel that will hear and decide a particular case They can be an effective way f maximizing cherence f the agency decisins and f transmitting t individual members the benefit f the agency s cllective experience with and thught abut he subject matter f the guidelines Guidelines are practive and can be used t frmulate a general and cmprehensive apprach t a prblem withut being cnfined by the facts f a particular dispute They shuld be published and made available t thse appearing befre the agency Immigratin Refugee Bard IRB chair released Guideline 7 cncerning preparatin and cnduct f a hearing in the refugee prtectin divisin The mst cntrversial aspect f the guidelines was its directins regarding the prperty rder f questining at the hearing Traditinally they had allwed claimants t be examined in chief by their cunsel befre being questined by the members f the RPO, but guidelines 7 reversed this rder f questining. Only in exceptinal circumstances wuld this vary. The validity f this guideline was challenged here. Thamtharem v Canada (Minister f Citizenship and Immigratin), 2007 FC Prcedural guideline (Guideline 7) issued t prmte efficiency & cnsistency in refugee claim prcessing Why is the rder f questining imprtant? Hw des it intrduce an RAB? Hw might it breach PF? What is the status f the guideline? Can cmmn law duty f fairness trump the guideline? 154

156 What abut guidelines as a surce f a legitimate expectatin? If a LE, aren t guidelines then a fetter n discretin t?? Thamtharem v Canada (Minister f Citizenship and Immigratin), 2007 FC FACTS: This case cncerns the Immigratin Refugee Bard guidelines. IRB chair released Guideline 7 cncerning preparatin and cnduct f a hearing in the refugee prtectin divisin The mst cntrversial aspect f the guidelines was its directins regarding the prperty rder f questining at the hearing Traditinally they had allwed claimants t be examined in chief by their cunsel befre being questined by the members f the RPO, but guidelines 7 reversed this rder f questining. Only in exceptinal circumstances wuld this vary. The validity f this guideline was challenged here. ISSUE: Is the Guideline authrized? HOLDING Guideline 7 is valid but the fact that the guideline is intended t established hw discretin will nrmally be exercised is nt enugh t make it an unlawful fetter, as lng as it des nt preclude the pssibility that the decisin maker may deviate frm the nrmal practice in life f particular facts In additin, the fact that the bard may mnitr when an adjudicatr says a situatin is exceptin des nt establish that a reasnable persn wuld think their independence was unduly cnstrained by guideline 7 REASONING Rules, Discretin and Fettering Legislative instruments (including sft law guidelines etc) can assist a member f the public t predict hw an agency is likely t exercise its statutry discretin and t arrange their affairs accrdingly, and enables an agency t deal with a prblem cmprehensively and practively, rather than incrementally and reactively n a case by case basis Because sft law instruments may be put in place relatively easily and adjusted in light n day t day experience, they may be preferable t frmal rules requiring external apprach and, pssibly drafting apprpriate fr legislatin The use f guidelines and ther sft law techniques t achieve an acceptable level f cnsistency is administrative decisins is particularly imprtant fr tribunals exercising discretin, whether n prcedural, evidential r substantive issues, n the perfrmance f adjudicative functins It is fundamental t the idea f justice that adjudicatrs, whether in administrative tribunals r curts, strive t ensure that similar cases receive the same treatment Nnetheless, while agencies may issue guidelines r plicy statements t structure the exercise f statutry discretin in rder t enhance cnsistency, administrative decisin-makers may nt apply them as it they were law Thus a decisin made slely by reference t the mandatry prescribed guidelines may be set aside n the grunds that the decisin makers exercise f discretin was unlawfully fettered This level f cmpliance can nly be achieved thrugh the exercise f statutry pwer t make hard law Guideline 7 and the Fettering f Discretin The guidelines d nt have the same legally binding effect as statutry rules Questin: Whether in the language and effect Guideline 7 unduly fetters RPD members discretin t determine fr themselves case-by-case the rder f questining [Language will be a the mre imprtant cnsideratin here] Since the language f the guideline expressly permits members t depart frm the standard rder f questining in exceptinal circumstances, the curt shuld be slw t cnclude that members will regard themselves as bund t fllw the standard rder, in the absence f clear evidence t the cntrary, such as that members have rutinely refused t cnsider whether the facts f a particular case requires an exceptin t be made The Bard s Plicy n the Use f Chairpersn s Guidelines states that guidelines are nt legally binding n members The intr t guideline sectin says the guidelines apply t mst cases hwever in cmpelling r exceptinal circumstances the members will use their discretin t nt apply sme guidelines r apply them less strictly Claimants wh believe that exceptin circumstances exist in their case must apply t the RPD befre the start f the hearing 155

157 The language f sectin 7 is mre than a recmmended by ptinal prcess but the fact that the guideline is intended t established hw discretin will nrmally be exercised is nt enugh t make it an unlawful fetter, as lng as it des nt preclude the pssibility that the decisin maker may deviate frm the nrmal practice in life f particular facts The fact that sme members may errneusly believe that Guideline 7 remves their discretin t depart frm the standard practice des nt warrant invalidating it in such cases the apprpriate remedy fr unsuccessful claimants is t seek JR t have the RPD s decisin set aside In shrt, thse challenging the validity f guideline 7 did nt prduce evidence establishing n a balance f prbabilities that members rigidly apply the standard rder f questining withut regard t the apprpriateness in particular circumstances The arrangements made fr discussins within an agency with members wh have heard a case bust nt be s cercive t raise a reasnable apprehensin that the members ability t decide cases free frm imprper cnstraints has been undermined Evidence that the Immigratin and Refugee s Bard mnitr members deviatins frm the standard rder f questining des nt create the kind f cercive envirnment which wuld make guideline 7 an imprper fetter n members exercise f their decisin making pwers There was nt evidence that any members have been threatened with a sanctin fr nn-cmpliance and given the bards legitimate interest in prmting cnsistency it is nt sinister that he bard attempts t mnitr the frequency f member s cmpliance with the standard practice Nte is it an infringement n the members independence that they are expected t explain in their reasns why a case is exceptinal and warrants departure frm the regular standard The evidence here des nt establish that a reasnable persn wuld think the RVD member s independence was unduly cnstrained by guideline 7 Adjudicative independence is nt an all r nthing thing, but a questin f degree The independence f members f administrative agencies must be balanced against the interests f the agency in the quality and cnsistency f decisins, frm which there are nrmally nly limited rights f access t the curts, rendered by an individual member in the agency s name CLASS NOTES Why d we care abut the rdering f questins? Tactical advantaged-they party wh questins firsts gets t frame the issues Fr efficiency-it might be better t have the ppsing party lead because they will just right t the main issues (aka cut t the chase) Refugee claimants are peple frm ther cuntries-they may have had a negative interactin with law enfrcement etc in the past s t start ff being questined by thse peple may be challenging fr them Ultimately the refugee is allwed t apply t vary the rder (the utcme may have been different if this didn t happen) This is a cmmn law challenge t a guideline The guideline is sft law nt law, s yu can challenge the guideline using the cmmn law Nte-if it was a rule/statutry then yu cant challenge a guideline with the cmmn law (because it sits higher) What abut the argument that he guideline is a legitimate expectatin? The claimant wuld argue that there is nt clear and unambiguus language abut the exceptin (nt clear n when an exceptin wuld be granted etc) 156

158 157 SUBSTANTIVE REVIEW HOW IS THIS DIFFERENT THAN PRODECURAL FARINESS? This is abut the MERITS OF THE DECSION Prcedural fairness is abut hw the decisins was made (hearing rights, bias etc) BUT the prblem is a lt f cases will really fall under bth (example: Baker) Intrductin SUBSTANTIVE REVIEW What is the standard f review analysis abut? "The standard f review dctrine raises a deceptively simple questin - n what grunds may a curt interfere with the [merits f a] decisin f an administrative bdy? The answer t this questin must start first frm the principled psitin that n administrative act may fall abslutely utside the purview f judicial interference r there wuld be n mechanism by which t ensure the rule f law is respected by the executive, and secnd, frm the practical prpsitin that curts d nt have the institutinal cmpetence, capacity r legitimacy t intervene in any administrative setting as they wish. The standard f review, thus, represents the search fr a cnstructive relatinship between curts and

159 158 administrative decisin-makers which reflects respect fr the rule f law, Parliamentary supremacy, judicial capacity, administrative expertise and the cmplex decisin-making envirnments f the mdern state." Fr ver 75 years there has been serius issues abut the scpe f JR n substantive grunds Histrically, JR Of the substance f statutry decisin-making was very cnfined pretty much just checking fr statutry authrity When perating within their jurisdictin r hme territry, statutry authrities were left pretty much alne prvided they did nt act in bad faith r fr purpses nt cntemplated by the empwering Act Fr a while there was a claim f an entitlement t JR fr all errrs f law, at least in the case f adjudicative bdies that kept frmal recrd f their prceedings this lapsed fr a cnsiderable time in the face f varius legislative devices aimed at squelching this challenge t the autnmy f specialist bdies Privative clauses (prvisin intended t limit the scpe f JR f tribunals) were ne such device Beynd that, JR f a tribunals finding f fact was extremely rare it was cnfined t situatins where there was abslutely n evidence t supprt the tribunals cnclusin This mdel didn t really require deference because all the judges are ding is establishing the bundary f the tribunals Canadian curts develped a much less tlerant attitude in respnse t increasing gverning interventin and new scial prgrams While they still shwed great deference t cabinet prergatives and ministerial decisin-making, they were far less hspitable t the new rle f many administrative tribunals This was especially s in the curts respnse t thse charged with administering the new regime f labur relatins based n cllective bargaining instead f traditinal emplyment law and n administrative substituted fr the restrictive trt law that had applied t wrkplace injuries Privative clauses were interpreted in a very restricted fashin t limit their effect f judicial pwer The cncept f judicial errr was distrted and expanded t such and extend as t subject almst any determinatin f law that a statutry decisin maker might make t full crrectness review Als, frequently curts have a right n their said that the legislature in may instances cnferred a right f appeal t the curts frm tribunals r ther statutry authrity the presence f such a right invited intrusive judicial scrutiny f legal determinatin but als where the terms f the right f appeal were sufficiently brad, f the decisin by the relevant decisin maker Mdern Apprach The mdern apprach the SCC has t administrative decisin makers is an apprach that is mre respectful f the relative strengths f tribunals and ther nn-judicial actrs and f the legislative intentins regarding their expanded rle Reviewing curts were instructed by the SCC t assess their engagement with the administrative prcess frm a pragmatic and functinal perspective this required respect fr the legislatures chice as t while decisin maker shuld be the primary vehicle fr carrying ut a statutry mandate The utcme f this pragmatic and functinal apprach is that he curts arrive at a standard f review t determine the intensity with which they review an administrative decisin This apprach t substantive review was reaffirmed and renvated in Dunsmuir The pragmatic and functin apprach applied in the past by the curts t determine the apprpriate level f deference t an administrative actr was renamed the standard f review analysis All f the factrs in the analysis remained, althugh the rle f each factr was clarified and recalibrated The pssible standards f review was narrwed frm three t tw [(1) an intrusive crrectness standard and (2) a deferential reasnableness standard]

160 Dunsmuir clarified that where existing jurisprudence determine in a satisfactry manner the applicable standard f review, it shuld be applied withut further cnsideratin f carius factrs in the standard f review analysis In the absence f such guidance frm the past, Dunsmuir clarified als that it was smetimes unnecessary fr the curt t review all f the factrs that he standard f review may be determined based, fr example n the nature f the questin at stake Perhaps mre imprtantly while Dunsmuir simplified the prcess t decide the apprpriate standard f review, it has created perplexing questins abut hw a curt shuld apply the newly unified deferential standard f reasnableness 159 Standard f Review Analysis Intrductin-The Standard f Review Fcus-The standard f review that a curt shuld apply in exercising its review pwers ver a statutry authrity charged with implementing the mandate f an administrative scheme created by statute Aka when a curt is asked t review a determinatin f law, fact r mixed law and fact, r discretin by a statutry decisin maker, hw shuld the curt apprach the task and what tests shuld it apply? The Framewrk f the Standard f Review Analysis incrprates the same factrs that applied previusly under the pragmatic and functinal apprach: 1. The presence and terms f a privative clause r right f appeal in the statute 2. The nature f the questin that is under review 3. The expertise f the decisin maker, AND 4. The statutry purpse and cntext in which the decisin making tk place Dunsmuir did nt radically alter the curts cmmitment t judicial deference fr administrative decisin-making, yet it did change hw that cmmitment was implemented by: By reducing the number f standards f review It went frm 3 2 The highly deferential patent unreasnableness standard did nt disappear entirely, but it survived nly rarely where its usage is dictated by past decisin r by an express statutry prvisin The new standard f reasnableness is nt necessarily the same as the ld standard f reasnableness simplicitr and cnveys and adaptable apprach t deference in different circumstances The standard f crrectness has retained pretty much the same meaning STAGES IN SUBSTANTIVE REVIEW

161 1. Determine the Apprpriate Standard f Review Standard f Review established by precedence, OR Via Analysis f the factrs Built n the 4 factrs frm Dunsmuir 2. Apply that Standard in the Circumstances f the Case at hand t decide the utcme f the Judicial Review Crrectness OR Crrectness applies t issues f prcedural fairness, s we have already seen this (this can get a little messy) Reasnableness 160 Premises f Reasnable Review That there is mre than ne pssible interpretatin f a statute/a law (r exercise f discretin) (e.g., CUPE v NB) The rule f law then des nt require the decisin-maker t be crrect but rather t respect legislative intent t make that decisin-maker the final interpreter But the rule f law des require that the interpretatin rest within the universe f reasnable interpretatins/exercises f discretin (e.g., Rncarelli, Baker.) The Stry Three Apprach t Substantive Review Perid 1 - Pre-CUPE (1979): Review fr jurisdictin. N deference required. Crrectness standard Perid 2 CUPE (1979) t Dunsmuir (2008): Pragmatic & Functinal apprach t determine standard f review. Deference required. 2 standards (Crrectness & Patent Unreasnableness: ), and then 3 (Reasnableness simpliciter added ) Perid 3 -- Current, pst-dunsmuir (2008) Standard f review analysis. Deference required. 2 standards (Crrectness & Reasnableness). The default rule is reasnableness applies. Dunsmuir v New Brunswick, 2008 SCC FACTS: D was a curt fficial with the DOJ. He was bth a prvincial public servant and legally a statutry ffice hlder at pleasure. He was dismissed after being reprimanded n 3 ccasins. The Gvernment relied n s 20 f the Civil Servant Act, saying this meant they culd dismiss D simply by prviding him with reasnable ntice r salary in lieu f ntice, and they didn t have t establish cause r give him a hearing. Bu sectin f the Public Service Labur Relatins Act extended grievance rights t nn-uninized emplyees such as D. Sectin 97(2.1) f the PSLRA prvided that where an adjudicatr determined that the emplyees has been discharged r therwise disciplined FOR CAUSE the adjudicatr may substitute such ther penalty fr the discharge r the discipline as t the adjudicatr seems reasnable. T avid the effect f this prvisin the Gvernment said he was nt suitable fr the psitin, but D argued he was dismissed fr cause and that if the gvernment actually didn t have cause he was entitled t seek reinstatement. A mutually agreed upn PSLRA adjudicatr heard the case and cncluded that an emplyer culd nt avid an inquiry int its real reasns fr dismissing an emplyee by stating that cause was nt alleged. He then held that n his view the evidence the terminatin was nt disciplinary but based n the appellants perfrmance and suitability fr the psitin, based n the law frm Knight D shuld have been infrmed f the reasns fr this dissatisfactin and given an pprtunity t respnd. He declared the terminatin vid and rdered the D was reinstated. ON JR [Queens Bench] applied the pragmatic and functinal apprach and cncluded that the apprpriate standard f review was crrectness and that the curt need nt shw deference t the adjudicatrs interpretatin f the PSLRA. They

162 said the act was wrngly interpreted and thus the adjudicatr lacked the jurisdictin t review the circumstances f D s dismissal. Curt f Appeal said the apprpriate standard f review was reasnableness simpliciter and that it was unreasnable based n the relevant statutes, fr the adjudicatr nt t accept the emplyers prtrayal f the dismissal as nt fr cause. ISSUE: What apprach shuld be taken in the JR f a decisin f administrative tribunals? Nte the secnd issue abut whether the appellant wh was an ffice hlder at pleasure had the right t prcedural fairness is nt addressed here HOLDING This case recnfigured the test fr the apprpriate standard f review The apprpriate standard f review is reasnableness REASONING Judicial Review JR is cnnected with the preservatin f the rule f law Curts, while exercising their cnstitutinal functins f JR must be sensitive nt nly t the need t uphld the rule f law, but als t the necessity f aviding undue interference with the discharge f administrative functins in respect f the matters delegated t administrative bdies by Parliament and legislatures By virtue f the rule f law principle, all exercises f public authrity must find their surce in the law all decisin makers have legal limits, derived frm the enabling statute itself, the cmmn law r the cnstitutin The functins f JR is therefre t ensure the legality, reasnableness and the fairness f the administrative prcess and its utcmes A decisin maker may nt exercise authrity nt specifically assigned t him r her, but acting in the absence f legal authrity the decisin maker transgresses the principle f the rule f law thus when a reviewing curt cnsiders the scpe f a decisin making pwer r the jurisdictin cnferred by a statute, the standard f review analysis strives t determine what authrity was intended t be given t the bdy in relatin t the subject matter In additin t the rle JR plays in uphlding the rule f law, it als perfrms an imprtant cnstitutinal functin in maintaining legislative supremacy Legislative supremacy is affirmed by adpting the principle that the cncept f jurisdictin shuld be narrwing circumscribed and described accrding t the intent f the legislature in a cntextual and purpseful way Legislative supremacy is affirmed and the curt-centric cnceptin f the rule f law is retained in by acknwledging that the curts d nt have a mnply n deciding all questins f law In essence the rule f law is maintained because the culd have the last wrd n jurisdictin, and legislative supremacy is assured because determining the applicable standard f review is accmplished by establishing legislative intent The legislative branch f gvernment cannt remve the judiciary s pwer t review actins and decisins f administrative bdies fr cmpliance with cnstitutinal capacities f the gvernment Even a privative clause, which prvides a strng indicatin f legislative intent cannt be determinative in this respect The inherent pwer f the superir curts f review administrative actin and ensure it des nt exceed its jurisdictin stems frm the judicature prvisins sectin f the cnstitutin In shuld JR is cnstitutinally guaranteed in Canada Despite the clear and stable cnstitutinal fundatins f the system f JR, the peratin f JR in Canada bas been in a cnstant state f evlutin ver the years, as the curts have attempted t devise appraches t JR that are bth theretically sund and effective in practice The time has arrived t re-examine the Canadian apprach t JR f administrative decisin and develp a principled framewrk that is mre cherent and wrkable Recnsider the Standards f Judicial Review 161

163 The current apprach the JR invlved three standards f review, which range frm crrectness (where n deference is shwn) t patent unreasnableness (which is mre deferential t the decisin maker) and the standard f reasnableness simpliciter lying in the middle f the ther tw The curt cncludes that there ught t just be tw standards f review crrectness and reasnableness Tw Standards f Review Determining the Apprpriate Standard f Review Where is needed is a test that ffers guidance, is nt frmalistic r artificial and permits review where justice requires it, but nt therwise a simpler test is needed Questins f fact, discretin and plicy as well as questins where the legal issues cannt be easily separated frm the factual issues generally attract a standard f reasnableness while many legal issues attract a standard f crrectness sme legal issues hwever will attract the mre deferential standard f reasnableness The existence f a privative clause r preclusive clause give rise t a strng indicatin f review pursuant t the reasnableness standard This cnclusin is apprpriate because a privative clause if evidence f parliament r a legislatures intent that an administrative decisin maker be given greater deference and that interference by reviewing curts be minimized This des nt mean that the presence f a privative clause is determinative Guidance with regard t the questin that will be review n a reasnableness standard can be fund in the existing case law Deference will usually result where a tribunal is interpreting its wn statute r statutes clsely cnnected with its functin which it will have particular familiarity [CBC v Canada] Deference may als be warranted where an administrative tribunal has develped a particular expertise in the applicatin f a general cmmn law r civil law rules in relatin t specific statutry cntext [Trnt v CUPE] Adjudicatin in labur law remains a gd example f the relevance f this apprach A cnsideratin f the fllwing factrs will lead t the cnclusin that the decisin maker shuld be given deference and a reasnableness test applied: A privative clause: this is a statutry directin frm parliament r a legislature indicating the need fr deference A discrete and special administrative regime in which the decisin make has special expertise (labur relatins fr example) A nature f the questin f law: a questin f law that is f central imprtance t the legal system and utside the specialized areas f expertise f the administrative decisin maker will always attract a crrectness standard. On the ther hand, questins f law that des nt rise t this level may be cmpatible with the reasnableness standard where the tw factrs abve indicate. If these factrs cnsidered tgether pint t a standard f reasnableness, the decisin makers decisin must be apprached with deference in the sense f respect already discussed An exhaustive review is nt required in every case t determine the prper standard f review existing jurisprudence may be helpful in identifying sme f the questin that generally fall t be determined accrding t the crrectness standard Fr example: crrectness standard review has been fund t apply t cnstitutinal questins, regarding the divisin f pwers between parliament and the prvinces in the Cnstitutin Act Such questins, as well as ther cnstitutinal issues are necessarily subject t crrectness review because f the unique rle f sectin 96 curts as interpreters f the cnstitutin Administrative bdies must als be crrect in their determinatin f true questins f jurisdictin r vires It is imprtant here t take a rbust view f jurisdictin Jurisdictin is intended in the narrw sense f whether the tribunal has the authrity t make the inquiry True jurisdictin questins arise where the tribunal must explicitly determine whether its statutry grant f pwer gives it the authrity t decide a particular mater 162

164 The tribunal must interpret the grant f authrity crrectly r its actin will be fund t be ulta vires r t cnstitute a wrngful decline f jurisdictin Curt must als cntinue t substitute their wn view f the crrect answer where the questin at issue is ne f general law that is bth f central imprtance t the legal system as a whle, and utside the adjudicatrs specialized area f expertise because f their impact n the administratin f justice as a whle, such questins require unifrm and cnsistent answers Questins regarding the jurisdictinal lines between tw r mre cmpelling specialized tribunals have als been subject t review n a crrectness basis In summery, the prcess f JR invlves tw steps 1. Curts ascertain whether the jurisprudence has already determined a satisfactry manner the degree f deference t be accrded with regard t a particular categry f the questin 2. Where there first inquiry prves fruitless, curts must prceeds t an analysis f the factrs making it pssible t identify the prper standard f review [The analysis must be cntextual it is dependent n a number f relevant factrs including:] a) The presence r absence f a privative clause b) The purpse f the tribunal as determined by interpretatin f the enabling legislatin c) The nature f the questin in issue d) The expertise f the tribunal **NOTE: in many cases it will nt be necessary t cnsider all f the factrs, as sme f them may be determinative in the applicatin f the reasnableness standard in a specific case Applicatin We must determine the standard f review applicable t the adjudicatrs interpretatin f the PSLRA The specific questin here is whether the cmbined effect f sectin 97(2.1) and s f the PLSRA permits the adjudicatr t inquire int the emplyers reasns fr dismissing an emplyee with ntice r pay in lieu f ntice this is a questin f law The questin whether is light f the privative clause, the regime under which the adjudicatr acted, and the nature f the questin f law invlved, a standard r crrectness shuld apply The adjudicatr was appinted and empwered under the PSLRA Under that statute is a full privative clause stating in n uncertain terms that every rder, award, directin, decisin, declaratin r ruling f..an adjudicatr is final and shall nt be questined r reviewed by any curt The inclusin f a full privative clause in the PSLRA gives rise t a strng indicatin that the reasnableness standard f review will apply The Nature f the regime als favurs a standard f reasnableness This curt has ften recgnized the relative expertise f labur arbitratrs in the interpretatin f cllective agreements, the cunselled that he review f their decisin shuld be apprached with deference The adjudicatr in this case was in fact interpreting the enabling statute adjudicatrs acting under the PSLRA can be presumed t hld relative expertise in the interpretatin f the legislatin that gives them their mandate, as well as related legislatin that hey might ften encunter in the curse f their functins This factr als suggests a reasnableness standard f review The legislative purpse cnfirms this view f the regime The PSLRA established a time and cst effective methd f reslving emplyment disputes The remedial nature f sectin and its prvisins fr timely and binding settlements f disputes als imply that a reasnableness review is apprpriate The nature f the legal questin at issue is nt ne that is f central imprtance t the legal system and utside the specialized expertise f the adjudicatr This als suggests the standard f reasnableness shuld apply The apprpriate standard f review is reasnableness 163

165 CLASS NOTES D was dismissed withut cause, but he thinks there was sme cause. He is a public emplyee and askes fr an adjudicatr and the adjudicatr reads the statute and says he can inquire int cause and cncludes that D was wrngfully dismissed If the dismissal was withut cause then he is screwed his cntract meant he was an emplyee at pleasure and can be dismissed withut cause. The adjudicatr takes it upn himself t inquire int cause this is really the questin that is ging n here (an interpretatin issue) The curt said the adjudicatr was unreasnable But the curt disagrees: they changed the law but culdn t even agree n what they are ding (lk int the differences-they went in different directins) Majrity Says reasnableness applied, decisin is unreasnable (because this is utside the parameters f the adjudicatr) The adjudicatr has the authrity t inquire int cause when cause is given as a reasn fr dismissal but nt when the emplyer says there is n cause Binnie (cncurring) als applies reasnableness Deschamps applied crrectness This brings up the issue f having a wide range f administrative issues and hw d we really have unifrm principles? [Theme] Crrectness N deference The administrative decisin maker must be crrect and what is crrect is what the curt determines is crrect Reasnableness Deference This is the default standard f review Justificatin, transparency and intelligibility Must fall within the reasnableness f utcme here the adjudicatr was nt within the reasnable range f utcmes when he made decisins n cause NOTE statutes may preserve different standards f review this is imprtant in BC where the ATA prescribed patent unreasnableness as a standard f review in cme cases What patent unreasnableness will mean will still be calibrated against when is happening in the cmmn law The ATA attempts t define what patent unreasnableness means, and there are sme curt interpretatins The STANDARD OF REVIEW POST DUNSMUIR Default-reasnableness Categries are als given where crrectness will be applies What d these categries have in questin? They all g back t the fundatin/cre ideas abut the rule f law [recgnize this in the exceptins carved ut in Dunsmuir] These examples push the line yu try t argue int these categries t rebut that the default psitin f reasnableness applies We are left with a tw step prcess Lk t jurisprudence but if it is a pre-2008 decisin it shuld prbably be revisited because Dunsmuir altered everything With n precedence apply the Dunsmuir factrs Basically we use the factrs t decide if the presumptin f reasnableness shuld be rebutted DUNSMUIR FACTORS Nte that the factrs are ften articulated in different ways its the nature f the questin that is imprtant But nt quite a cnsensus n the Curt abut that change r hw it applies: Majrity (Bastarache + LeBel) 164

166 165 Reasnableness applies, decisin is unreasnable Simplify, simplify, simplify Single frm f reasnableness Cncurring (Binnie) Reasnableness applies, decisin is unreasnable, but different views n what the change in the analysis will make It wasn t s bad, but OK, simplify Cmplexity transferred Cncurring (Deschamps) Crrectness applies, decisin was incrrect Simplify via using same apprach as appellate review, slightly adapted Reasnableness is mre like a rainbw than a black and white situatin (para 120) THE STANDARD OF REVIEW POST-DUSMUIR Crrectness n deference r Reasnableness deference Usually deference will be wed; i.e., the default standard f review is reasnableness (as per factrs at para 51) Crrectness is the apprpriate standard f review when (paras 57-61): true questins f jurisdictin Questins f law f central imprtance utside f expertise f the admin DM Cnstitutinal questins Questins regarding jurisdictinal lines between tribunals Nte: The crrectness standard als applies t review fr prcedural fairness. But..[we will cme back t this] Standard f Review - Tw step prcess (at para 62): In summary, the prcess f judicial review invlves tw steps. First, curts ascertain whether the jurisprudence has already determined in a satisfactry manner the degree f deference t be accrded with regard t a particular categry f questin. Secnd, where the first inquiry prves unfruitful, curts must prceed t an analysis f the factrs making it pssible t identify the prper standard f review. DUNSMUIR Step #2 analysis f factrs Factrs that apply (at least in regards t whether reasnable-ness shuld apply t questins f law): 1. Privative clause 2. A discrete and special administrative regime in which the decisin maker has special expertise Nature f the questin f law: f central imprtance t the legal system? Outside f expertise? Factrs that apply at step 2 generally/ renaming P&F apprach: 1. Presence r absence f privative clause 2. Purpse f the tribunal as per interp f enabling leg 3. Nature f the questin at issue 4. Expertise f the tribunal (para 64) Prblems with understanding and applying Dunsmuir When d we have a precedent that establishes the standard f review at step 1? Subsequent cases suggest that pre-dunsmuir precedents are suspect and shuld be revisited. Gd advice n p. 646 The relatinship between the factrs and the categries f questins that rebut the presumptin f deference?

167 166 Factrs are used t understand whether the presumptin shuld be rebutted Mre n the factrs in the next tw classes Pushpanathan The Factrs as understd under the Pragmatic & Functinal apprach 1. Presence r absence f a privative clause r statutry right f appeal Neither stat. right f appeal nr privative clause is determinative f std f review (i.e., absence nt autmatically crrectness std., presence nt autmatically a Patent Unreasnableness (PU) std.) strng privative clause greater deference. 2. Expertise f tribunal relative t the reviewing curt n the issue in questin May derive frm specialized knwledge f a tpic, institutinal capacity/knwledge gained frm experience and skill in the determinatin f particular issues; frm specialized prcedures r nn-judicial means f implementatin. 3 steps t analyzing expertise (para 33) Relative expertise in tribunal greater deference 3. Purpse f the legislatin as a whle and the prvisin in particular; D the statute and particular decisin in issue present plycentric purpses (balancing f multiple interests, plicy issues, prtectin f public, chice f administrative respnse r remedies)? Hw des the specific prvisin fit within the legislative scheme? Where plycentric purpses greater deference 4. Nature f the questin (law, fact, mixed). Generality f a questin t be decided is indicative f a mre legal, less factual questin Factual questins greater deference; legal questins less deference. Privative Clauses and Statutry Rights f Appeal Dunsmuir Bastarache & LeBel JJ (majrity): PC as strng indicatin f review pursuant t the reasnableness standard ; as evidence f legislative intentin that decisin-maker be given greater deference and that interference by reviewing curts be minimized. But presences f a PC is nt determinative. (para 52) Binnie J: PC as nt cnclusive as mre than just anther factr in the hpper f pragmatism and functinality. PC shuld presumptively freclse judicial review n the merits unless applicant can shw a legal reasn why this shuld nt be s. (at para 143) Here we are cncerned with specific prvisins in the statute (r statutes) under which a decisin-maker acts and with statutry prvisins that address the relatinship between the curts and the relevant decisin-maker r decisin this invlved statutry interpretatin Parliament r a prvincial legislature nly rarely indicates precisely in a statute what standard f review a curt shuld apply, even when the legislature des the meaning f the wrds used t described the relevant standard may evlve ver time. On the ther hand, legislatures have fr decades included prvisins in statute that direct the curts nt t review the decisins nt taken under the statute these prvisins are referred t as privative clauses The inclusin f such clauses is always taken t signal deference by the curts Where a privative clause r right f appeal (r bth) are present in a statute, they will influence, but nt determine utright, the standard f review PRIVATIVE CLAUSES Privative clauses are statutry prvisins by which a legislature purprts t limit the scpe f intensity f JR f a statutry decisin maker Generally curts distinguished between full r strng privative clause and weak nes Full/Strng Ones typically use brad language t preclude any frm f review by a curt, while als establishing that the decisins f the relevant actrs are final and cnclusive

168 The clearest frm f a privative clause (accrding t Pasiechnyk v Saskatchewan) is ne that declares the decisins f the tribunal are final and cnclusive frm which n appeal lies and all frms f JR are excluded althugh where the legislature emplyees wrds that purprt t limit review bu fall shrt f the traditinal wrding f a full privative clause, it is necessary t determine whether the wrds were intended t have full private effect r a lesser standard f deference. As such privative clauses can be full in its effect even where it des n satisfy clear definitin f a full private clause as laid ut in Pasiechnyk Weak Privative Clauses fall shrt f this brad language Typically they state simply that the decisin f the decisin-maker are final and cnclusive r that a decisin maker has the sle r exclusive jurisdictin in certain matters withut expressly precluding the rle f the curts frm any review r the decisin maker The interpretatin f a privative clause may als depend n whether ther prvisins f the statute prvide fr an appeal t the curt frm the decisin-maker A statutry right f appeal may be available n questins f law, fact and mixed law and fact, r anther categry f decisins Ntably, a privative clause cannt ust the authrity f the superir curts t carry ut JR n cnstitutinal issues r its authrity t ensure that an administrative actr has the statutry authrity that is claims and that it is acting within the bunds f (r intra vires as ppsed t ultra vires this authrity In light f the variatin in privative clauses and rights f appeal it is imprtant t examine the statue under which a decisin have been taken t determine the apprpriate rute fr any statutry appeal and t assess the likelihd that a curt will shw deference t the decisin maker Privative Clauses in the Standard f Review Analysis Generally in determining whether judicial deference shuld be shwn t an administrative decisinmaker, a curt will accept that the presence f a privative clause calls fr the curt t shw defence There is an unfrtunate histry f judicial restraint t privative clauses At time, cases arise where the curt appear t have cntrted its reasning n the standing f review t justify an interventinist stance dispute the presence f a strng privative clause Despite the presence f a full privative clause the superir curts retain a cnstitutinal authrity t review administrative actin t ensure that a statutry decisin maker has nt exceeded its delegated authrity Differences f view f privative clauses are abut mre than technical issues f statutry interpretatin, they arises within a wider debate abut the apprpriate rle f the curts in the regulatin f prperty and cntract rights where the legislatures has assigned respnsibilities fr ecnmic regulatin and scial affairs t nn-judicial bdies Where d we stand n privative clauses in the current dctrine? On the ne hand, privative clauses retain their imprtance in the standard f review analysis as a signal f deference On the ther hand, the Dunsmuir framewrk suggest a turn away frm the view that privative clauses prvide a clear message abut legislative intent n judicial deference Dunsmuir leaves rm t maintain the effect f a privative clause in areas like labur relatins based n the rle f existing jurisprudence and n the cntext-driven nature f the reasnableness standard Hibernia Management and Develpment Cmpany Ltd v Canada-Newfundland and Labradr Offshre Petrleum Bard, 2008 In this case the CA analyzed a cmplex set f privative prvisins in the Canada- Newfundland Atlantic Accrd Implementatin Act The purpse f this legislatin was t implement the 1985 Accrd between Canada and Newfundland by which the Canada-Newfundland and Labradr Offshre Petrleum Bard were established 167

169 The bard had the authrity t issue license and apprve f develpment plans fr ffshre il prjects In 2004 the bard issue guideline n research and develpment expenditures by the cmpanies that perate such prjects, the purpse f the guidelines was t enhance value added benefits f lcal resurce explitatin fr the prvincial ecnmy The bards authrity t issue and apply guidelines was challenged by Hibernia In its standard f review analysis the curt examined the privative prvisins under the Act H argued that there was n privative clause in the legislature prtected the Bards decisins frm review by the curt The bard said that sectin 30 cnstituted a privative clause because it prvides the exercise f a pwer r the perfrmance f a duty by the bard pursuant t this Act is final and nt subject t the review r apprval f either gvernment r minister Thus at issue was whether sectin 30 was a privative clause the curts have t lk t the language f the prvisin They characterized the clause as a partial privative clause which wuld supprt review by the curts n the standard f reasnableness Even if this sectin did nt cnstitute a partial privative clause, the absence f such a clause is nt determinative, in the circumstances lead t the cnclusin that the curts shuld shw deference t the Bards decisin by applying the reasnableness standard CLASS NOTES Ultimately apply a reasnableness standard The idea f what yu are asking abut the authrity f the bard t d smething jurisdictin, this might make yu think crrectness shuld be applies They are using statutry interpretatin t determine if this is a privative clause Is sectin 30 a privative clause? Des it matter t the curt s cnclusin? Shuld it matter? Shuld PCs be determinative f std f rev r just anther factr in the hpper? Rights f Appeal in the Standard f Review Analysis Check in What are the appellate standards f review? At time f Dunsmuir, state f the law was that statutry rights f appeal n questins f law was an indicatr f legislative intent (t allw freer curt interventin) but still nly ne factr in the analysis f standard f review (i.e., deference culd apply) Still the case. Latest wrds: Muvement laïque québécis v. Saguenay (City), 2015 SCC 16, paras Edmntn East. But, dissent in Edmntn East. 168 Many statutes prvide a right f appeal t a specific curt n questins f law r fact that have been determined by the statutry decisin maker A right f appeal is bradest when it encmpasses all f the pssible questins that a decisin maker might make The inclusin f such a clause in a statute weights against deference by a curt Where n right f appeal is included, by default the cmmn law reserves JR fr the superir curts f the respective prvince Often legislatures prvide in statutes fr a right f appeal t a curt that is itself established by statute in cnnectin with a particular real f decisin making Befre Dunsmuir: Where questins f fact fell within the scpe f the right f appeal, there was a tendency t defer t the findings f the trier f fact

170 Where the issue was ne f law, the assumptin was that the right f appeal indicated a legislatures intend fr the curt t feel free t intervene n the basis f its wn cnclusins n the relevant legal issues In Dunsmuir the majrity says the decisins f a tribunal r agency n the interpretatin f its wn statute, r clsely related statutes are usually entitled t deference and that questins f law (where nt f central imprtance t the legal system and utside the decisins makers expertise) may be cmpatible with the standard f reasnableness Sme carefully framed statements by the curt allw fr the applicatin f the crrectness standard f questins f law where there is a full statutry right f appeal But they als suggest the deference may be apprpriate where the questin f law arises frm the decisins makers hme statute r frm clsely related statutes Thus the mre imprtant the issues appears t be, nt the presences a right f appeal n questins f law, but rather the cntext in which a questins f law arse and the degree t which it engages the mandate and expertise f the decisin maker Appellate standards f review Questins f law crrectness Deference t the trier f cat Questins f fact palpable and verriding errr Mixed fact and law deference (palpable and verriding errr) 169 Canada (Citizenship and Immigratin) v. Khsa 2009 SCC We will lk at several pints frm the case: 1) Reading statutry and cmmn law stds f rev tgether (Binnie); 2) Reading leg intent abut expertise (via privative clause, r via creatin f agency generally) (Binnie vs Rthstein) [TODAY]; 3) Applying the reasnableness standard (Binnie vs Fish in dissent). expertise r the privative clause? Binnie, paras 21-26: With r withut privative clause, tribunals entitled t sme deference if legislature intended t allcate questin t tribunal Might be mre than ne right answer, even n legal questins Rthstein, paras 76-98: Withut (strng) privative clause, Std f rev n questins f law is crrectness. Curt s view f expertise irrelevant Rejects Pezim, Pushpanathan, Dunsmuir fr nt taking legislative intent seriusly enugh See paras 111, 112 cntrasting types f privative clauses Canada (Citizenship and Immigratin) v. Khsa 2009 SCC FACTS: K, a citizen f India, immigrated t Canada with his family in 1996, at the age f 14. In 2002, he was fund guilty f criminal negligence causing death and received a cnditinal sentence f tw years less a day. A valid remval rder was issued t return him t India. K appealed the rder, but the majrity f the Immigratin Appeal Divisin ( IAD ) f the Immigratin and Refugee Bard, after cnsidering the Ribic factrs and the evidence, denied special relief n humanitarian and cmpassinate grunds pursuant t s. 67(1) (c) f the Immigratin and Refugee Prtectin Act ( IRPA ). A majrity f the Federal Curt f Appeal applied a reasnableness simpliciter standard and set aside the IAD decisin. ISSUE: At issue in this appeal is the extent t which, if at all, the exercise by judges f statutry pwers f judicial review gverned by the cmmn law principles lately analysed by ur Curt in Dunsmuir? HOLDING

171 The SCC allwed the appeal (upheld the decisin f the IAD) In light f the deference prperly wed t the IAD under s. 67(1) (c) f the IRPA, there was n prper basis fr the Federal Curt f Appeal t interfere with the IAD decisin t refuse special relief in this case. It cannt be said that this decisin fell utside the range f reasnable utcmes. REASONING BINNIE [MAJORITY] This Curt s decisin in Dunsmuir, which was released after the decisins f the lwer curts in this case, recgnized that, with r withut a privative clause, a measure f deference has cme t be accepted as apprpriate where a particular decisin has been allcated t administrative decisin-makers in matters that relate t their special rle, functin and expertise. A measure f deference is apprpriate whether r nt the curt has been given the advantage f a statutry directin, explicit r by necessary implicatin. These general principles f judicial review are nt usted by s f the Federal Curts Act which deals essentially with grunds f review f administrative actin, nt standards f review. A legislature has the pwer t specify a standard f review if it manifests a clear intentin t d s Hwever, where the legislative language permits, the curt (a) will nt interpret grunds f review as standards f review, (b) will apply Dunsmuir principles t determine the apprpriate apprach t judicial review in a particular situatin, and (c) will presume the existence f a discretin t grant r withhld relief based in part n Dunsmuir including a restrained apprach t judicial interventin in administrative matters. The language f s generally sets ut threshld grunds which permit but d nt require the curt t grant relief. The discretin must be exercised judicially, but the apprpriate judicial basis fr its exercise includes the general principles dealt with in Dunsmuir. Dunsmuir establishes that there are nw nly tw standards f review: crrectness and reasnableness N authrity was cited suggesting that a crrectness standard f review is apprpriate fr IAD decisins under s. 67(1) (c) f the IRPA, and the relevant factrs in a standard f review inquiry pint t a reasnableness standard. These factrs include: (1) the presence f a privative clause; (2) the purpse f the IAD as determined by its enabling legislatin the IAD determines a wide range f appeals under the IRPA and its decisins are reviewable nly if the Federal Curt grants leave t cmmence judicial review; (3) the nature f the questin at issue befre the IAD Parliament has prvided in s. 67(1) (c) a pwer t grant exceptinal relief and this prvisin calls fr a fact-dependent and plicy-driven assessment by the IAD itself; and (4) the expertise f the IAD dealing with immigratin plicy. **These factrs must be cnsidered as a whle, bearing in mind that nt all factrs will necessarily be relevant fr every single case. Where, as here, the reasnableness standard applies, it requires deference Reviewing curts ught nt t reweigh the evidence r substitute their wn appreciatin f the apprpriate slutin, but must rather determine if the utcme falls within a range f reasnable utcmes. In this case, the questin whether K had established sufficient humanitarian and cmpassinate cnsideratins t warrant relief frm his remval rder was a decisin which Parliament cnfided t the IAD, nt t the curts The IAD was required t reach its wn cnclusins based n its wn appreciatin f the evidence and it did s. Where the reasnableness standard applies, it requires deference Reviewing curts cannt substitute their wn appreciatin f the apprpriate slutin, but must rather determine if the utcme falls within "a range f pssible, acceptable utcmes which are defensible in respect f the facts and law" ON PRIVATIVE CLAUSES Dunsmuir stands against the idea that in the absence f express statutry language r necessary implicatin, a reviewing curt is "t apply a crrectness standard as it des in the regular appellate cntext" 170

172 I wuld reject my clleague's effrt t rll back the Dunsmuir clck t an era where sme curts asserted a level f skill and knwledge in administrative matters which further experience shwed they did nt pssess. ROTHSTEIN I think he is saying that when there are prvisins abut JR the curt cannt stray frm what is said while Binnie interpreted the prvisins in light f the Cmmn law (?) Where a legislature has expressly r impliedly prvided fr standards f review, curts must fllw that legislative intent, subject t any cnstitutinal challenge. With respect t s. 18.1(4) f the Federal Curts Act, the language f para. (d) makes clear that findings f fact are t be reviewed n a highly deferential standard Curts are nly t interfere with a decisin based n errneus findings f fact where the federal bard, cmmissin r ther tribunal s factual finding was made in a perverse r capricius manner r withut regard fr the material befre it. By cntrast with para. (d), there is n suggestin that curts shuld defer in reviewing a questin that raises any f the ther criteria in s. 18.1(4). Where Parliament intended a deferential standard f review in s. 18.1(4), it used clear and unambiguus language, as it has in para. (d) regarding facts. The necessary implicatin is that where Parliament did nt prvide fr deferential review, it intended the reviewing curt t apply a crrectness standard as it des in the regular appellate cntext While recurse t the cmmn law is apprpriate where Parliament has emplyed cmmn law terms r principles withut sufficiently defining them, it is nt apprpriate where the legislative scheme r prvisins expressly r implicitly usts the relevant cmmn law analysis as is the case with s. 18.1(4) f the Federal Curts Act. Curts must give effect t the legislature s wrds and cannt superimpse n them a duplicative cmmn law analysis. The Dunsmuir standard f review shuld be cnfined t cases in which there is a strng privative clause. Excepting such cases, it des nt apply t s. 18.1(4). The applicatin f Dunsmuir utside the strng privative clause cntext marks a departure frm the cnceptual and jurisprudential rigins f the standard f review analysis Where a decisin-maker s enabling statute purprts t preclude judicial review n sme r all questins thrugh a privative clause, deference will apply and a Dunsmuir standard f review analysis will be cnducted Sectin 18.1(4) cnfers n the Federal Curts the discretin t grant r deny relief in judicial review. The remedial discretin in s. 18.1(4) ges t the questin f withhlding relief, nt the review itself. The traditinal cmmn law discretin t refuse relief n judicial review cncerns the parties cnduct, any undue delay and the existence f alternative remedies which is whlly distinct frm the cmmn law f standard f review analysis. Reliance upn this discretin cntained in s. 18.1(4) t supprt the view that it pens the dr t the Dunsmuir standard f review analysis is inapprpriate PRIVATIVE CLAUSES Rthstein adpts the perspective that in the absence f a privative clause r statutry directin t the cntrary, express r implied, judicial review under s is t prceed "as it des in the regular appellate cntext" AKA A CORRECTNESS STANDARD In the absence f a privative clause an a questin f law there will be a crrectness standard CLASS NOTES We essentially have a discretinary decisins reasnableness applies Binnie says that privative clauses are anther factr Recgnize that what Rthstien is saying is pretty much against Dunsmuir 171

173 Expertise and Statutry Purpse Respect fr statutry purpse is anther way f saying that curts respect the substantive chices f the legislatr and thse t whm the legislature has delegated public pwers. (p. 685) With expertise, these factrs ask us t cnsider the cntext in relatin t decisin/questin under review (the next factr we will lk at) and cnsider whether the matter is central t the tribunal s mandate (a matter within the hme statute r cre f the Tribunal s mandate) r nt (then pssibly crrectness) EXPERTISE IS ABOUT THE INSTITUION nt the individual Here we examine tw factrs in the standard f review analysis: Expertise f the Administrative Decisin Maker As measured by the curt in light f relevant statutry prvisins and relative t the curts understanding f its wn expertise Indicatrs f expertise may be present in the statute itself, but may als emerge frm the curts understanding f the legislatures aim when it created a statutry regime An administrative actr s expertise may be shwn in different ways: It may be traced t the backgrund f an individual member f the tribunal It may be recgnized as part f the histry and institutinal memry f the decisin maker and its membership It may relate t a superir technical capacity r understanding in a particular subject matter r it may fllw frm field sensitivity that a decisin maker acquires frm years f peratins in its assigned area A cnsideratin f expertise requires a curt t put itself int the mind f the legislature at the time that the legislature creates r subsequently endrsed a statutry regime The curt must lk fr explicit markers in the statute, they may als find indirect indicatrs f the legislatures intentin (such as a requirement that a tribunal include members wh are lawyers r judges, r mre general statements abut the statutes aims and purpse) The existence f a discrete and special administrative regime in which the decisin maker has special expertise is a cnsideratin that may lead t deference based n the reasnableness standard In Dunsmuir the curt cncluded that deference will usually extend t the reslutin f questins f law where a tribunal is interpreting its wn statute r statutes clsely cnnected t its functin, with which it will have particular familiarity r where an administrative tribunal has develped particular expertise in the applicatin f a general cmmn law r civil law rule in relatin t a specific statutry cntext Since Dunsmuir the SCC has increasingly treated expertise as a presumptin in the standard f review analysis In creating administrative tribunals legislatures cnfer decisin making authrity n certain matters t decisin makers wh are assumed t have specialized expertise with the assigned subject matter Purpse f a Decisin Maker As determined by its enabling legislatin This factr is nt examined in great detail in Dunsmuir but has alng histry in the pragmatic and functinal apprach An assessment f statutry purpse des nt itself determine the standard f review withut resrt t ther factrs, hwever it can prvide supprt fr the assessment f ther aspects f the decisin making prcess and fr the curts characterizatin f the rle f the decisin-maker in its regulatry field A reviewing judge must cnsider the precise nature and functin f the decisin maker including its expertise and the terms and bjectives f the gverning statute cnferring the pwer f decisin 172

174 173 The curts may refer t the factr f a statute s (r decisin makers purpse) when characterizing the cntext fr a decisin that is under review Respect fr statutry purpse is anther way f saying that the curts respect the substantive chices f the legislature and thse t whm the legislature has delegated public pwers The framing f statutry purpse interacts with all the ther factrs in the standard review analysis it infrms and is infrmed by the terms f the statute, the nature f the questin, and the decisin makers relative expertise The interpretatin f the statute where it carries a range f pssible meanings shuld nt be at the expense f the statute as a whle and its regulatry aims; such ther factrs in the analysis shuld supprt, nt cntradict that framing f purpse ultimately all are suppsed t reveal legislative intent See Bell Canada v Bell Aliant Reginal Cmmunicatins Pushpanathan v. Canada (Minister f Citizenship and Immigratin), 1998 SCC Pushpanathan v. Canada (Minister f Citizenship and Immigratin), 1998 SCC FACTS: In 1985, the appellant claimed refugee status under the UN Cnventin Relating t the Status f Refugees ( Cnventin ), as implemented by the Immigratin Act, but his claim was never adjudicated as he was granted permanent residence status in Canada under an administrative prgram. The appellant was later arrested in Canada and charged with cnspiracy t traffic in a narctic. He pleaded guilty and was sentenced t eight years in prisn. In 1991, the appellant, then n parle, renewed his claim fr Cnventin refugee status. Emplyment and Immigratin Canada subsequently issued a cnditinal deprtatin rder against him under ss. 27(1)(d) and 32.1(2) f the Act deprtatin pursuant t thse sectins is cnditinal upn a determinatin that the claimant is nt a Cnventin refugee, the appellant s claim was referred t the Cnventin Refugee Determinatin Divisin f the Immigratin and Refugee Bard. The Bard decided that the appellant was nt a refugee by virtue f the exclusin clause in Art. 1F(c) f the Cnventin, which prvides that the prvisins f the Cnventin d nt apply t a persn wh has been guilty f acts cntrary t the purpses and principles f the United Natins. ISSUE: What standard f review shuld be applied fr the decisin f the IRB? HOLDING Crrectness standard REASONING Factrs t Take int Accunt: Privative Clause the presence f a full privative clause is cmpelling evidence that the curt ught t shw deference t the tribunal s decisin, unless ther factrs strngly indicate the cntrary as regards the particular determinatin in questin a partial r equivcal privative clause is ne which fits int the verall prcess f evaluatin f factrs t determine the legislatr s intended level f deference, and des nt have the preclusive effect f a full privative clause Expertise If a tribunal has been cnstituted with a particular expertise with respect t achieving the aims f an Act, whether because f the specialized knwledge f its decisin-makers, special prcedure, r nn-judicial means f implementing the Act, then a greater degree f deference will be accrded expertise must be understd as a relative, nt an abslute cncept a lack f relative expertise n the part f the tribunal vis-à-vis the particular issue befre it as cmpared with the reviewing curt is a grund fr a refusal f deference Making an evaluatin f relative expertise has three dimensins: the curt must characterize the expertise f the tribunal in questin; it must cnsider its wn expertise relative t that f the tribunal; and it must identify the nature f the specific issue befre the administrative decisinmaker relative t this expertise.

175 Once a brad relative expertise has been established, hwever, the Curt is smetimes prepared t shw cnsiderable deference even in cases f highly generalized statutry interpretatin where the instrument being interpreted is the tribunal s cnstituent legislatin In shrt, a decisin which invlves in sme degree the applicatin f a highly specialized expertise will militate in favur f a high degree f deference, and twards a standard f review at the patent unreasnableness end f the spectrum Purpse f the Act as a Whle, and the Prvisin in Particular purpse and expertise ften verlap. Where the purpses f the statute and f the decisin-maker are cnceived nt primarily in terms f establishing rights as between parties, r as entitlements, but rather as a delicate balancing between different cnstituencies, then the apprpriateness f curt supervisin diminishes The Nature f the Prblem : A Questin f Law r Fact? even pure questins f law may be granted a wide degree f deference where ther factrs f the pragmatic and functinal analysis suggest that such deference is the legislative intentin Where, hwever, ther factrs leave that intentin ambiguus, curts shuld be less deferential f decisins which are pure determinatins f law The Prper Standard Crrectness the Bard appears t enjy n relative expertise in the matter f law which is the bject f judicial review here. A clear majrity f this Curt has fund in a number f cases that deference shuld nt be shwn by curts t human rights tribunals with respect t general questins f law the Bard s expertise in matters relating t human rights is far less develped than that f human rights tribunals The expertise f the Bard is in accurately evaluating whether the criteria fr refugee status have been met and, in particular, assessing the nature f the risk f persecutin faced by the applicant if returned t his r her cuntry f rigin Only 10 percent f the members f the Bard are required t be lawyers (s. 61(2)) and there is n requirement that there be a lawyer n every panel Nr is there any indicatin that the Bard s experience with previus factual determinatins f risk f persecutin gives it any added insight int the meaning r desirable future develpment f the prvisin in questin here Here, the legal principle is easily separable frm the undisputed facts f the case and wuld undubtedly have a wide precedential value CLASS NOTES This is a gd example f a pre-dunsmuir decisin where they apply crrectness, and it a gd examples f where they apply the factrs Privative clauses/right f statutry appeal are nt determinative f the issues, but strng nes lean twards mre deference Expertise f tribunal relative t the curt it isn t abut the individual r wh the chair is, its abut if the bard in any given questins has the cmbined expertise Relative expertise in tribunal greater deference Purpse f the legislatin as a whle and the prvisin in particular Nature f the questin where its legal it is mre general Bell Canada v Bell Aliant Reginal Cmmunicatins, 2009 SCC Our cncern: Paras esp (Paras applicatin f the reasnableness std) Para 38: issues raised g t the very heart f the CRTC s specialized expertise. [T]he cre f the quarrel is with the methdlgy fr setting rates, a plycentric exercise with which the CRTC is statutrily charged and which it is uniquely qualified t undertake. reasnableness applies In cntrast t what? What is the alternative characterizatin f the issues at stake and std f review applied at lwer curts? Why? Bell Canada v Bell Aliant Reginal Cmmunicatins, 2009 SCC FACTS: In May 2002, the Canadian Radi-televisin and Telecmmunicatins Cmmissin ( CRTC ), in the exercise f its rate-setting authrity, established a frmula t regulate the maximum prices t be charged fr certain 174

176 services ffered by incumbent lcal exchange carriers, including fr residential telephne services in mainly urban nnhigh cst serving areas (the Price Caps Decisin ). Under the frmula established by the Price Caps Decisin, any increase in the price charged fr these services in a given year was limited t an inflatinary cap, less a prductivity ffset t reflect the lw degree f cmpetitin in that particular market. The CRTC rdered the carriers t establish deferral accunts as separate accunting entries in their ledgers t recrd funds representing the difference between the rates actually charged and thse as therwise determined by the frmula. At the time, the CRTC did nt direct hw the deferral accunt funds were t be used. In December 2003, Bell Canada sught apprval frm the CRTC t use the balance in its deferral accunt t expand high-speed bradband internet services in remte and rural cmmunities. The CRTC invited submissins and cnducted a public prcess t determine the apprpriate dispsitin f the deferral accunts. In February 2006, it decided that each deferral accunt shuld be used t imprve accessibility fr individuals with disabilities and fr bradband expansin. Any unexpended funds were t be distributed t certain current residential subscribers thrugh a ne-time credit r via prspective rate reductins. Bell Canada appealed the CRTC s deferral accunts decisins (abut the credits). The Federal Curt f Appeal dismissed the appeals, finding that the Price Caps Decisin regime always cntemplated that the dispsitin f the deferral accunts wuld be subject t the CRTC s directins and that the CRTC was at all times acting within its mandate ISSUE: Was the CRTC within its authrity t rder the deferral accunt remainder was t be used as a credit t cnsumers? HOLDING The CRTC did exactly what was mandated t it under the Telecmmunicatin Act it had a statutry authrity t set just and reasnable rates t establish the deferral accunts and t direct the dispsitin f the funds in thse accunts REASONING The Arguments Bell Canada say the CRTC has nt statutry authrity t rder was it claimed amunted t retrspective rebates t cnsumers The CRTC says that is brad mandate t set rates under the Telecmmunicatins Act includes establishing and rdering the dispsal f funds frm deferral accunts Bth f these arguments bring us directly t the statutry scheme at issue The Telecmmunicatins Act Sets ut the basic legislative framewrk f the Canadian cmmunicatins industry The Guiding bjectives are set ut in sectin 7 the CRTC MUST cnsider these bjectives in the exercise f ALL f its pwers The CRTC relied n these prvisins t arguing that it was required t take int accunt a brad spectrum f cnsideratins in the exercise f its rate setting pwers, and that the deferral accunts decisins was simply an extensin f this apprach This act grants the CRTC the general pwer t set and regulate rates fr telecmmunicatins services The guiding rule f rate setting is that the rates must be just and reasnable The CRTC has a wide discretin which is prtected by a privative clause The CRTC als has the authrity under sectin 37(1) t rder a carrier t adpt any accunting methd r system f accunts in view f the prper administratin f the Telecmmunicatins Act The CRTC has ther brad pwers, which wile nt at issue here demnstrate the cmprehensive regulatry pwers parliament intended t grant This statutry verview assists in dealing with the preliminary issue f applicable standards f review Bell and Telus cncede that the CRTC ha the authrity t apprve f disbursements frm the deferral accunts fr initiative t imprve bradband expansin and accessibility t telecmmunicatins services fr persns with disabilities BUT they d nt think they have the authrity t extend this t the rebates s it all cmes dwn t whether the CRTC has the authrity and discretin t rder credits t custmers frm the deferral accunts. A central respnsibility f the CRTC is t determine and apprve just and reasnable rates, tgether with this rate setting pwer the CRTC has the ability t impse ANY cnditin n the prvisin f a service, adpt ANY methd t determine whether a rate is reasnable and just and require a carrier t adpt ANY accunting methd 175

177 The CRTC s authrity t establish the deferral accunts is fund thrugh a cmbined reading f sectin 27 and 27(1) It is self evidence at the CRTC has cnsiderable expertise with respect t this type f questin, this bservatin is reflected in its extensive statutry pwer in this regard ad in the strng privative clause in sectin 52(1) prtecting its determinatins n questins f fact frm appeal, including whether a carrier has adpted just and reasnable rates The issues here g right t the heard f the CRTC s specialized expertise This wuld be in favr f a mre deference standard f review The curt then lks at previus versins f the act Even befre the present act regulatry agencies had enjyed cnsiderable discretin in determining factrs be t cnsidered and the methdlgy that culd be adpted fr assessing whether rates were just and reasnable The present act is even mre brad, it says the CRTC can adpt any methd which is language that was absent is previus versins The CRTC is nt required t cnfirm itself t balancing nly the interests f subscribers and carries with respect t particular service Here we are dealing with the CRTC setting rates that were required t be just and reasnable, an authrity fully supprted by unambiguus statutry language in ding s the CRTC was exercising a brad authrity which accrding t sectin 47 they are required t d with a view t implement the Canadian telecmmunicatins plicy bjectives The CRTC is statutrily authrized t adpt any methd f determining just and reasnable rates furthermre it is required t cnsider the statutry bjectives in the exercise f its authrity The Deferrals Accunts N party bjected t the CRTC s authrity t established the deferral accunts themselves Deferral accunts enable the regulatr t defer cnsideratin f a particular item f expense r revenue that is incapable f being frecast with certainty fr the test year While the CRTC s creatin and use f deferral accunts fr bradband expansin and cnsumer credits may have been innvative, it was supprt supprted by prvisins in the Act Deferral accunts were created in accrdance with bth the CRTC s rate-setting authrity and with the gal that all rates charged by carries were and wuld remain just and reasnable A deferral accunt will nt serve its purpse if the CRTC was nt als allwed t have the pwer t rder the dispsitin f the funds cntained in it the curt takes the view that the CRTC had the authrity t rder the dispse f the accunts in the exercise f its rate setting pwers (prvided that exercise was reasnable) Bell says that the CRTC rder f the ne time credit amunted t a retrspective rate setting In the curts view, this case cncerns encumbered revenues in deferrals accunts, we are nt dealing with the variatin f final rates The credits rdered ut f the deferral accunts in this case are neither retractive nr retrspective they d n vary the riginal rate as apprved nr d they seek t remedy a deficiency in the rate rder thrugh later measures since thse credits r reductins were cntemplated since the beginning The deferral accunt decisin was the cumulatin f a prcess undertaken in the Price Caps decisin in the price caps decisins the CRTC indicated that the amunts f the deferral accunts were t be used in a manner cntributing t achieving the CRTC s bjectives The allcatin f the deferral accunt funds t cnsumers was nt strictly speaking a rebate these were a ne time disbursement t CURRENT subscribers Nthing in the deferral accunts decisins undermined the financial stability f the affected carriers, the amunts at issue were always treated differently fr accunting purpses and the regulated carriers were aware f the fact that the prtin f the revenues ging int the deferral accunts remained encumbered The Curt dismissed the Appeal The CRTC prperly cnsidered the bjectives set ut in s.7 when it rdered expenditures fr the expansin f bradband infrastructure and cnsumer credits in ding s they cnsidered the bjectives as guiding principles in the exercise f its rate-setting authrity 176

178 The CRTC did exactly what was mandated t it under the Telecmmunicatin Act it had a statutry authrity t set just and reasnable rates t establish the deferral accunts and t direct the dispsitin f the funds in thse accunts CLASS NOTES This plycentric nature f the CRTC mattered here 177 The Nature f the Questin Dunsmuir Questins f fact, discretin and plicy as well as questins where the legal issues cannt be easily separated frm the factual issues generally attract a standard f reasnableness while many legal issues attract a standard f crrectness. Sme legal issues, hwever, attract the mre deferential standard f reasnableness. (para 51) [I]t is withut questin that the standard f crrectness must be maintained in respect f jurisdictinal and sme ther questins f law. This prmtes just decisins and avids incnsistent and unauthrized applicatin f law. (para 51) Questins f jurisdictin r vires : Set against imprtant CUPE v NB case (1979) It is imprtant here t take a rbust view f jurisdictin. We neither wish nr intend t return t the jurisdictin/preliminary questin dctrine that plagued the jurisprudence in this area fr many years. Jurisdictin is intended in the narrw sense f whether r nt the tribunal had the authrity t make the inquiry. In ther wrds, true jurisdictin questins arise where the tribunal must explicitly determine whether its statutry grant f pwer gives it the authrity t decide a particular matter. The tribunal must interpret the grant f authrity crrectly r its actin will be fund t be ultra vires r t cnstitute a wrngful decline f jurisdictin (at para 59) Befre Dunsmuir the mst imprtant factr in the pragmatic and functinal apprach appeared t be expertise But Dunsmuir shifted the fcus t the nature f the questin by emphasizing that a determinatin f the nature f the questin may create a strng presumptin in favur f deference Cnventinally, the curt distinguish the decisins f administrative actrs based n whether they engaged questins f LAW, FACT r MIXED LAW AND FACT Questins f Law abut what the crrect legal test is Questins f Fact questins abut what actually tk place between the parties Mixed questins abut whether the facts satisfy the legal test Example Negligence in Trt What negligence means? -questins f law Whether the defendant did this r that-questin f fact Once it has been decided that the applicable standard is negligence, the questin f whether the defendant satisfied the apprpriate standard f care is a questin f mixed law and fact Dunsmuir instructed that in cme cases an assessment f the nature f the questin will presumptively determine the standard f review This is especially true where the questin is f cnstitutinal imprtance r where it invlves general issues f law such as the reslutin f apparent cnflicts f jurisdictin between tribunals leading t a crrectness standard Other questins f law usually result in a reasnableness standard Nte it is nt always straightfrward characterize the nature f the questin befre the curt Dunsmuir asks us t draw lines between questins f law that are within the hme statute and nes that arnt (aka that are f central imprtance, f cnstitutinal issues etc) Discretin A questins f discretin under Dunsmuir requires a reasnableness analysis

179 178 Understand the wrds f the statute! NOTE that when Dunsmuir says many legal issues attract a standard f crrectness is really nt what we see its really an exceptin Why d we have a crrectness standard? There is a push t just g t a reasnableness standard Can it carry the weight f the rule f law? (in Dunsmuir they didn t think s) Jurisdictinal Questins and the Origins f the Standard f Review Analysis A subcategry f the questin f law is the jurisdictinal questin The cncept f jurisdictin lends itself t a range f meanings, sme f which drift far frm the rt meaning f the terms as simple a statutry authrity t enter int an inquiry As a result the cncept f jurisdictin is central t bth judicial review and is als full f cntrversies At the heart f the cntrversies is a different view ver the circumstances in which an administrative decisin maker can have jurisdictin t decide the scpe f its wn jurisdictin At ne end restrictive view that an administrative actr cannt act unless a curt has determined that it has t jurisdictin t act, r at least its actin are always subject t the curts review f its ability t decide its wn authrity t act At the ther end permissive view that a curt has n greater right t interpret the terms f a statutry grant f pwer than des the grant hlder, and s the curts shuld nt questin the cnclusins reached by administrative decisin-makers In Dunsmuir a majrity f the curt reiterated the psitin that the curts, thrugh JR, play a cnstitutinal rle in ensuring that administrative tribunals exercise nly authrity that they have been granted by statute CUPE Decisin It is imprtant because it marked a majr turning pint in the jurisprudence f the SCC away frm earlier expansive appraches t the cncept f Jurisdictin In Dunsmuir the curt tk care t preserve the sprite f CUPE by characterizing jurisdictin in a narrw sense f the authrity t make inquiry The psitin frm CUPE Dunsmuir reflects an apprach by which a reviewing curt must determine whether the gverning statute implies that the legislatures intended the decisin maker t decide fr itself whether t answer a questin r engage in an activity cnnected t its statutry authrity. S lng as the statute implies that he decisin maker has the authrity t decide the scpe f its wn authrity, a curt shuld be satisfied that the decisin makers interpretatin f its wn parent statute has nt engaged a questin f jurisdictin but rather (at mst) a questin f law After Dunsmuir there remained questins abut hw far the cncept f true questins f jurisdictin extends Fr alng time, the thery and practice f substantive review was dminated by the cncept f jurisdictin Curts deemed statutry authrities t have nly as much jurisdictin r authrity as the legislatures cnferred n them, and the primary task f the curt was the ensure that the tribunal r agency stayed within thse bundaries this meant reviewing n a crrectness basis all f the determinatins f law and fact that affected r went t t statutry authrity s jurisdictin Since Dunsmuir, the SCC has cnfirmed repeatedly that jurisdictinal review is a narrw cncept Alberta (Infrmatin f Privacy Cmmissiner) v Alberta Teachers Assciatin, 2011 SCC True Jurisdictinal Questins:Alberta Teachers Assc (ATA) (2011) Rthstein J (majrity): [I]t may be that the time has cme t recnsider whether, fr the purpses f judicial review, the categry f true questins f jurisdictin exists and is necessary t identifying the apprpriate standard f review. (at para 34, p. 746)

180 Apprach is t presume that a questin f statutry interp f the hme statute shuld be reviewed deferentially (i.e., reasnableness std applies). Crmwell J, cncurring: Hme statute rule des nt trump a mre thrugh examinatin f legislative intent when a plausible argument is advanced that a tribunal must interpret a particular prvisin crrectly (at para 99, p. 749) I remain f the view that true questins f jurisdictin r vires exist. Hwever, fr the purpses f the standard r review analysis, I attach little weight t these terms. They add little t the analysis and can cause prblems. (para 95, p. 748) Need t revisit Crevier???? Alberta (Infrmatin f Privacy Cmmissiner) v Alberta Teachers Assciatin, 2011 SCC FACTS: Nne given. HOLDING See the debate between Rthstein and Crmwell abut jurisdictin in JR DECISION Rthstien J Experience has shwn that the categry f true questins f jurisdictin is narrw The directin that the categry f questins f jurisdictin shuld be interpreted narrwly takes n particular imprtance when the tribunal is interpreting its hme statute It is sufficient in these reasns t say that unless a situatin is exceptinal (which we have nt seen since Dunsmuir) the interpretatin by the tribunal f its wn statute clsely cnnected t its functins, with which it will have particular familiarity shuld be PRESUMED t be a questin f statutry interpretatin subject t deference n JR True Questins f Jurisdictin This categry has lead t a lt f cnfusin and unnecessarily increased csts t clients befre getting t the actual substance f a case Our bjective shuld be t get the parties away frm arguing abut standards f review t arguing abut the substantive merits f a case Questins f jurisdictin are narrw and will be exceptinal! As lng at the true questins f jurisdictin categry remain, the party seeking t invke it must be required t demnstrate why the curt shuld nt review a tribunals interpretatin f its hme statute n the deferential standard f reasnableness The curt is unable t prvide a definitin f what might cnstitute a true questin f jurisdictin but say it might be pssible and they will knw it when they see it, at the mment t say they nly exist in EXCEPTIONAL cases might be helpful Aka they arise s rarely this begs the questins f whether they even exist He is really calling int questin whether true questins f jurisdictin exist nw, r perhaps that future cases might prve it des nt He is in ppsitin with Crmwell [Belw] Crmwell J He has prblems with Rthstein calling int questin the existence f true questins f jurisdictin, and als with his statement that the interpretatin f a tribunals f its wn statute r statute clsely cnnected t its functins, with which it will have particular familiarity shuld be presumed t be a questins f statutry interpretatin subject t deference n JR Crmwell takes issue with the fact that there is n indicatin hw this presumptin can be rebutted Creating a presumptin withut prviding guidance n hw it can be rebutted des nt give reviewing curts any guidance The assertin that true questins f jurisdictin may nt exist wuld undermine the fundatin f JR f administrative actin Dunsmuir was clear that the heart f JR is a balance between legality and legislative supremacy Althugh the term jurisdictin r vires is ften unhelpful, this shuld nt distract us frm the fundamental principles: as matter f either cnstitutinal law r legislative intent, a tribunal must be 179

181 crrect n certain issues in the sense that curts and nt the tribunal have the last wrk n what is crrect He thinks that questins f jurisdictin r vires exist CLASS NOTES This cmes ut f a privacy issue, that the teachers assciatin vilated a persns privacy. Thse cmplaints are referred t in adjudicatr fr an inquiry. The issue that went frward f JR was a timeline issues The timelines issue were nt raised befre the adjudicatr riginally There was a 90 day timeline that the cmmissiner had t extend their decisin, it was extended after the 90 days rule s the party is arguing abut whether the cmmissiner lst authrity (aka jurisdictin) This is a questin f statutry interpretatin in the hme statute and the cmmissiner is the best psitin t interpret it Crmwell-has a cnceptual prblem with getting rid f questins f jurisdictin, but agree cntextually it give little help t the analysis Cnfining decisins makers t their jurisdictin is s fundamental t the rule f law Nte Preliminary Questin Dctrine Dunsmuir warned against a return t the preliminary questins dctrine that preceded the CUPE decisin Th Dctrine Fr a lng time the curts allcated decisin-making pwer between curts and administrative agencies (that were prtected by a privative clause) by attempted t distinguish between thse questins f law that were within the area f the decisin making authrity, r jurisdictin, f the agency, n the ne hand and thse that were either preliminary t the exercise f jurisdictin r cllateral t the merits f the decisin, n the ther hand Despite the presence f the privative clause the curts was entitled n this thery t intervene in the administrative prcess if it fund sme cnditin precedent t the agency s exercise f its jurisdictin as nt satisfied The agency s determinatin f preliminary questins were subject t review by the curts n the basis f crrectness This dctrine was unsatisfactry and after Dunsmuir the preliminary apprach is nt lnger a part f Canadian administrative law It was t define a questins f jurisdictin befre ging n t lk at the decisin f a case Dunsmuir said they are nt ging t d this This nw related t this segregatin The Origins f the Standard f Review Analysis CUPE (1979) Dunsmuir called fr cautin n the cncept f jurisdictin by referring t Dicksn s decisin in CUPE The CUPE decisin marked a turning pint in Canadian administrative law Past apprached t substantive review permitted virtually any questin f law t be apprached as a questin f jurisdictin and thus reviewed n a crrectness standard On the ther hand, when a questin was nt treated as jurisdictinal and was prtected by a full privative clause, it wuld be entirely immune frm review CUPE initiated a mve away frm this On/Off apprach CUPE v NB Liqur Crpratin, 1979 SCC S. 102(3)(a) during the cntinuance f the strike the emplyer shall nt replace the stricking emplyees r fill their psitin with any ther emplyee CUPE v NB Liqur Crpratin, 1979 SCC 180

182 FACTS: During the curse f a strike the Unin laid a cmplaint with the Public Services Labur Relatins Bard. They cmplained that the emplyer was replacing striking emplyees with management persnnel cntrary t sectin 102(1)(a) f the Act (Public Service Relatins Act). At the center f the cntrversy here was the interpretatin f this sectin which said (a) the emplyer shall nt replace the striking emplyees r fill their psitin with any ther emplyee. The Bard's view was that when the Legislature granted the right t strike t public emplyees it intended thrugh s. 102(3) t restrict the pssibility f picket line vilence by prhibiting bth strike breaking and picketing S the bard sided with the Unin. On Appeal allwed an applicatin by the emplyer fr certirari and quashed the decisin f the Bard, hlding nt nly that s. 102(3) did nt prevent management frm perfrming the functins f striking emplyees but als cnsidering the interpretatin f s. 102(3) as a preliminary r cllateral matter wrngly decided by the Bard which thereby assumed a jurisdictin that it did nt have. HOLDING Allwed the Appeal (aka said the bard was right) DECISION This sectin is drafted very prly, and leaves pen the pssibility f many different interpretatins The emplyer says they were nt in vilatin f the act because management persnnel are nt emplyees as defined by the Act, they als said that the intent f this sectin was t ensure that jbs remained pen after the strike this interpretatin was rejected by the bard The bard has ruled that the emplyer refrain frm the use f management persnnel t d the wrk nrmally de by the members f the bargaining unit Befre the SCC talks abut the cnflicting interpretatins they talk abut whether the interpretatin f sectin 102(3) is a preliminary r cllateral matter They say that the language r preliminary r cllateral matter des nt assist in the inquiry f the bards jurisdictin Here the bard was asked t answer a questin and neither party questined their jurisdictin t decide that issue s we can t say nw that they did nt have jurisdictin The questin f what is and what is nt jurisdictin is very ften difficult t determine here the public service relatins bard acquires their jurisdictin t cnsider the cmplaints in light f sectin 19(1)(a) says they can examine and inquire int cmplaints Privative Clause Sectin 101 Prtects the decisin f the bard made within its jurisdictin Sectin 101 cnstitutes a clear statutry directin n the part f the legislature that public sectr labur matters be prmptly and finally decided by the bard The bard is given brad pwers, brader than thse typically vested in a labur bard, the expertise f the bard is required t meet the purpses f the act (which are t balance public services and t maintain cllective bargaining) The Bard clearly decided n a matter that was within its jurisdictin Was the bards interpretatin s patently unreasnable that its cnstructin cannt be ratinally supprted by the relevant legislatin and demands interventin by the curt upn review? The bards interpretatin cannt be characterized as patently unreasnable The ambiguity f this sectin has been acknwledged there is nt ne interpretatin that is right Clearly sectin 102(3) is an attempt t maintain the balance f pwer it is t avid picket lines utside gvernment buildings fr tw reasns (1) t avid picket vilence (2)t avid t impact f picket lines fr ne bargaining grup upn the remainder f gvernment peratins in a given building The bards interpretatin cannt be branded as patently unreasnable there interpretatins are at least as reasnable as the curt f appeal s CUPE clearly sught t restrict judicial scrutiny f administrative interpretatins f enabling statutes An imprtant feature f CUPE is its emphasis n statutry cntext and purpse rather than cmmn law cncept r presumptins as the key t interpreting administrative statutes hwever the decisin als illustrates tw key insights int the functinalist apprach t statutry interpretatin The first invlves recgnitin that the meaning f statutry language may be ambiguus 181

183 The curts determinatin f the meaning f an ambiguus wrd r phrase invlves an institutin chice abut wh is best psitins t make that determinatin shuld it be n the specialized agency r the curts? CUPE s key dctrinal imprtance is that it shifted the fcus f jurisdictinal review by a directing attentin t the ratinality f the agency s interpretatin f its enabling statute rather than t a prir classificatin f the statutry prvisin in dispute Questins f Law 182 Alberta v Alberta Teachers Assciatin, 2011 SCC An attempt t rebut the presumptin fails here Rgers Cmmunicatins v Sciety f Cmpsers, Authrs and Music Publishers f Canada, SCC 2012 Class Ntes Example f rebutting the presumptin frm ATA (re reasnableness standard fr interpreting hme statutes) They talk abut this being a questin f law (crrectness) vs questin f mixed fact and law (reasnableness) Think abut it what is the decisin abut whether streaming is public in the sense it culd attach ryalties This was prbably actually mixed fact and law It is the signal in the legislatin that curts are equally in the psitin t interpret this thus the signal in the legislatin gives the curt cncurrent jurisdictin Why under Dunsmuir is it kay t apply crrectness here if there is cncurrent jurisdictin the curts are equally well situated t decide this Why wuldn t it be kay? Aka if yu have cncurrent jurisdictin why wuld it be kay fr the curt t apply reasnableness. Hw is it kay t have different interpretatins by the cpyright bard and the curt f law? Rthstein J applied the reasnableness standard t the cmmissiners interpretatins f a prvisin in the Persnal Infrmatin Prtectin Act relating t statutry timelines. He rejected Binnie s pinin that crrectness shuld be used, even when a tribunal was interpreting its hme statute, if the relevant issue raised matter f legal imprtance beynd administrative aspects f the statutry scheme under review. Majrity f the SCC applied a crrectness standard in a fcused review f the cpyright Bard s interpretatin f what it meant t bradcast t the public in sectin 3(1)(f) f the Cpyright Act. The bard had interpreted this term in the cntext f a dispute ver whether nline dwnlads and steams were subject t cpyright, and t an bligatin t pay cmmunicatin ryalties t the cpyright hlder. The majrity justified the crrectness standard n the basis that the Cpyright Act allwed bth the tribunal and the curt t apply the statute in the first place. It wuld be incnsistent fr the curt t review a legal questin n JR f a decisin f the bard n a deferential standard and decide exactly that same legal questin de nv if it arse in an infringement actin in the curt at first instance. The cncurrent jurisdictin f the bard and the curt at first instance in interpreting the cpyright act rebuts the presumptin f reasnableness in the JR f the bards decisins n questins f law under its hme statute. In these circumstances the curt must be assumed t have the same familiarity and expertise with the statute as the bard.

184 183 McLean v BC (Securities Cmmissin), 2013 SCC SCC tk a mdified deferential apprach t the review f a tribunals interpretatin f its hme statute. The BC security cmmissin had interpreted sectin 161(6)(d) f the Securities Act as allwing the cmmissin t calculate a six year limitatin perid fr initiating a prceedings against a persn (wh entered int settlement agreement with a securities cmmissin in anther jurisdictin) frm the day f the settlement instead f the date f the persns underlying miscnduct. Mldaver J applied a reasnableness standard and upheld the cmmissin interpretatin as reasnable. Hwever, in applying the reasnableness standard he intrduced a new level f assessment by asking whether there was sufficient ambiguity I the statute t justify accepting the tribunals decisin as reasnable. This is imprtant because it might have a future impact n the Dunsmuir and CUPE principle f deference t a tribunals interpretatin f its hme statue. Discretinary and Plicy Questins in the Standard f Review Analysis In the pst-dunsmuir era it is clear that questins f discretin are t be identified as such and dealt with using the standard f review analysis We therefre intrduce discretinary questins here based n the Dunsmuir Framewrk All types f questins invlve discretin Law, fact r mixed It is best t apprach this tpic (the identificatin f discretinary questins in the standard f review analysis) as an inquiry int the fremst r pre-eminent nature f a questin, based n the terms f the statute that bestw authrity n the decisin maker T identify discretinary questins, the key is t lk t the relevant statute in rder t determine whether the statute frames the decisin-makers authrity in very general terms (such that is requires chices t be made frm a wide range f ptins, usually invlving bradly framed plicy cnsideratins) Varius indicatrs in a statute pint t the discretinary nature f a particular authrity T bestw wide discretin, the legislature might use phrases such as in the public interest in the circumstances r in the pinin f Althugh such phrases might suggest there is n limits t the discretinary activities f a decisin maker, it is always the case that the decisin maker must use its pwers in gd faith and fr the purpse that the legislature cnnected t the statue in questin [Think f Rncarelli v Duplessis There is nt such thing as abslute r untrammelled discretin] Revisit Khsha** Disaggregatin Dilemma Why shuld curts (and litigants) segment r disaggregate a decisin int mre than ne questin/finding by a tribunal? Para 19, Levis (City) (p. 736) Why shuld curts (and litigants) nt d this? Para 19 again, The pssibility f multiple standards shuld nt be taken as a license t parse an administrative decisin int myriad parts in rder t subject it t heightened scrutiny (p. 737) Abella against Segmentatin fr majrity, Via Rail Para , pp

185 184 Cncurring, Rgers Cmmunicatin paras (p. 736) (next slide) We d nt have rule that tell us when yu can segment and when yu cannt This is a questin f framing the prblem Yu need disaggregatin if: There are different standards t apply Why will the curts accept this? Maybe smene appeals t the curts sensibility, smething is really unjust/prblematic Why shuld curts nt d this? Para 19 ROGERS COMMUNICATION Abella J s warning against segmentatin paras 87-88: Segmenting the definitin f each wrd r phrase in a statutry prvisin int discrete questins f law is a reintrductin by anther name crrectness f the unduly interventinist apprach champined by the jurisdictinal and preliminary questin jurisprudence, jurisprudence which this Curt definitively banished in ATA. Pulling a single legal thread frm this textured piece [i.e., the Cpyright Bard s cnclusin re music dwnlads as cmmunicatin t the public] and declaring it t be the determinative strand fr deciding hw the whle piece is t be assessed strikes me, with great respect, as an anmalus jurisprudential relapse. (at para 87-88) In sme cases, a curt may explicitly disaggregate an aspect f the verall decisin under review, typically but nt always a questin f law, in rder t subject that discrete questin t a different standard f review frm that applies t the verall decisin Befre Dunsmuir, disaggregatin (r segmentatin r segregatin) becme a thrny issue fr the SCC It may be difficult t distinguish a questin f law r fact frm the cnvenient catch all f questins f mixed law and fact The chice t islate a questin f law ften leads t a crrectness standard and t the curts substitutin f its answer fr the tribunals As such the decisin t extract an issue f legal principles frm a tribunals ruling and then review it n a crrectness basis may be seen as a sleight f hand by which the curt can avid the purpse f deference dctrine In Dunsmuir, the issue f disaggregatin was nt discussed by the majrity rather the adjudicatrs interpretatin f prvisins in the Public Service Labur Relatins Act and Civil Service Act was treated as a questin f law that fell within the adjudicatrs expertise in highly specialized cntext, justify deference Despite its silence n the issue, Dunsmuir implies that disaggregatin is apprpriate in case where the nature f the questin calls presumptively fr the crrectness standard Befre Dunsmuire, tw prminent cases n segmentatin were Levis (SCC 2007) and VIA Rail (SCC 2007) In these tw cases the SCC sught t clarify when and why it was apprpriate t islate a questin f law frm a tribunals ruling in rder t subject that questin t greater judicial scrutiny Levis, 2007 SCC A majrity fund that the decisin f a Quebec labur arbitratr shuld be disaggregated because it invlved an apparent cnflict between tw statute (Plice Act and Cities and Twns Act) The arbitratr s reslutin f the cnflict was reviewed n a crrectness standard while the rest f the decisin attracted a reasnableness standard It is clear that the pragmatic and functinal apprach may lead t different standards f review fr separate findings made by an arbitratr in the curse f his r her decisin this will mst frequently be the case when an arbitratr is called upn t cnstrue legislatin. The arbitratrs interpretatin f the legislatin (a questin f law) MAY be reviewable n a different standard than the rest f the decisin Of curse it is nt always be easy r necessary t separate individual questins frm the decisin taken as a whle. The pssibility f multiple standards shuld nt be taken as a license t parse an administrative decisin int myriad parts in rder t subject it t heightened scrutiny. Hwever reviewing

186 curts must be careful nt t subsume distinct questins int ne brad standard f review. Multiple standards f review shuld be adpted when there are clearly defined questins that engage different cncerns under the pragmatic and functinal apprach. The questins f whether these sectins are in cnflict, and if s which ne shuld prevail clearly raises separate cncerns frm the questin f whether the arbitratr prperly interpreted and applied a sectin In this case the privative clause suggests greater deference in general, but desn t shed light n whether this level f scrutiny shuld be different fr each questin. DISSENT (Abella) cncluded that the arbitratr s decisin as aw hle shuld be subjected t the highly deferential standard f paten unreasnableness. She disagreed especially with the majrity s apprach t segmentatin in the face f a strng privative clause VIA RAIL, 2007 SCC In this case Abella s apprach t disaggregatin wn the day the majrity f the SCC reviewed and upheld a decisin f the Canadian Transprtatin Tribunal n a single deferential standard The tribunal rdered (pursuant t the Canada Transprtatin Act) that VIA Rail implement a series f remedial measures t address undue bstacles t the mbility f persns with disabilities in their train cars She said the decisin as a whle was entitled t deference n a single standard By attributing jurisdictin-limiting such as statutry interpretatin r human rights t what is in reality a functin assigned and prperly exercised under the enabling legislatin, a tribunals expertise is made t defer t a curts generalism rather than the ther way arund The allegedly jurisdictinal determinatin the agency was being asked t make, like the undueness inquiry falls squarely within its statutry mandate. It did nt invlve answering a legal questin beynd its expertise. The agency, and nt a reviewing curt, is best placed t determined whether the agency may exercise its discretin t make a regulatin fr the purpse f eliminating an undue bstacle t the mbility f persns with disability. She basically argue that segregatin is like preliminary questins under anther name In its pst-dunsmuir decisin in Wrkers Cmpensatin Act and O Dnnell the Yukn curt f appeal cnsidered and rejected the ptin f disaggregating a questin f law frm the decisin as a whle. The case invlved an appeal frm a Yukn Supreme Curt decisin that had quashed a decisin f the Yukn Wrkers Cmpensatin Appeal Tribunal The YSC based his decisin t quash n the cnclusin that the tribunal-in rejecting the claim fr cmpensatin by O Dnnell-decided incrrectly a number f pure legal questins arises frm the Wrkers Cmpensatin Act and in turn that the tribunals finding was flawed and unreasnable This decisin was appealed by O Dnnell s emplyer (the gvernment f Yukn) Wrkers Cmpensatin Art (Re) and O Dnnell, 2008 YKCA Wrkers Cmpensatin Art (Re) and O Dnnell, 2008 YKCA The essential basis f the emplyers appeal is that he chamber judge failed t prperly apply the reasnableness standard f review The emplyer cntends that the chambers judge re-weighed the evidence, dubted the factual findings f the Tribunal, unfairly criticized their reasns, and generally accrded the tribunal n deference The tribunal has under sectin 25(2) exclusive jurisdictin t determine whether Ms O Dnell s disability was wrk related the tribunal asked itself tw questins (1) did she suffer a wrk related disability (2) was there an adjustment disability that cnstituted a wrk related disability? Subsectin 25(3) prtects the tribunals decisins n any matter within its jurisdictin frm review in any curt except in circumstances where the tribunal errs in law r in jurisdictin (25(11)) Thus the privative clause in respect f the tribunal, while nt full it is still rbust There is n dubt that the tribunal in this case was acting in their jurisdictin 185

187 The bjects f the Act and the pwers f the tribunal suggest a speedy, efficient and final prcess that is fair t bth the emplyer and wrkers frm this is can be taken that the legislature intended that the tribunal hld relative expertise in the interpretatin f the Act that creates it mandate and in the applicatin f the plicies f the Bard which the tribunal is bund t cnsider The questins at issue (whether the disability was wrk related) is a questin f mixed law and fact in this case the legal and factual issues are intertwined and nt readily separated This care warrents ne standard f review, nt multiple It is questinable whether the pure legal questin identified by the chambers judge in this case were in fact all questins f law what is certain is that they were nt readily separated frm the general questin in issue and were nt f central imprtance t the legal system utside the specialized expertise f the tribunal Cnsidering all the relevant factrs, there can be n dubt that the apprpriate standard f review in this case was ne f reasnableness The appeal is allwed, the tribunals decisin was restred. Types f Questins f law? N rules. A questin f framing in light f the directin f the law and the plicy behind the law. Rgers Cmmunicatin E.g. f rebutting the presumptin frm ATA (re reasnableness std fr interpreting hme statute) an indicatin f the type f exceptin that might rebut the presumptin Rthstein (questin f law, crrectness) vs Abella (questin f mixed fact & law, reasnableness) Matter being reviewed is the interpretatin f pint-t-pint transmissin f a musical wrk (streaming frm the internet) as a public (rather than private) cmmunicatin by the Cpyright Bard in the determinatin f tariffs that apply. Cmpare t ATA, Pushpanathan: are questins f stat interp similarly legal? D any r all have factual elements invlved in the questin? Cntrast Alberta Teachers Assc attempts t rebut fail ATA q f law was applicatin f timelines: Statute prvided that Cmmissiner must determine the issue in 90 days OR Extend the time alltted and prvides an anticipated cmpletin date fr the inquiry/review (s. 50(5) f PIPA) Facts f the case illustrate that Cmmissiner was well beynd 90 days time limit befre he prvided the ntice and estimated cmpletin date required by s. 50 (5) QUESTIONS OF LAW CATEGORIES 1. One f central imprtance 2. Law arising frm the hme statute 3. Mixed fact and law Issue: Questins f central imprtance When d we have this? 186

188 187 Edmntn East, 2016 SCC Edmntn East, 2016 SCC FACTS: Alberta residents may dispute their municipal prperty assessment befre a lcal assessment review bard. When ne Edmntn taxpayer did s, the assessment review bard decided t increase the assessment the taxpayer had disputed. The taxpayer appealed, submitting that when a taxpayer disputes an assessment the Bard lacks the statutry pwer t increase the assessment and may nly lwer r cnfirm it. The Alberta Curt f Queen s Bench agreed with the taxpayer, as did the Curt f Appeal. The City f Edmntn nw appeals t this Curt. ISSUES 1. What is the apprpriate standard f review fr the Bard s implicit decisin that it culd increase the assessment? 2. Des the decisin withstand scrutiny n that standard? HOLDING The standard f review fr the Bard s decisin is reasnableness and that it was reasnable fr the Bard t find it had the pwer t increase the assessment. REASONING The Statutry Scheme and Prvisins Alberta s MGA regulates prperty assessments in the prvince. The scheme perates n an annual basis, with municipalities preparing assessments each year (s. 285). Prperty assessrs are subject t an verarching duty t prepare assessments in a fair and equitable manner (s. 293(1)). The MGA permits any assessed persn r taxpayer t cntest a municipal prperty assessment befre an assessment review bard (s. 460). After hearing a cmplaint, an assessment review bard may change the assessment r decide that n change is required (s. 467(1)). A decisin f an assessment review bard may be appealed t the Curt f Queen s Bench, with permissin, n a questin f law r jurisdictin f sufficient imprtance t merit an appeal (s. 470(1) and (5) MGA) The Assessment Bards Decisin Implicit in the Bard s analysis was a decisin that it had the authrity t increase the assessment shuld it s chse. On the merits f the assessment, the Bard agreed in part with the City: it fund that the mall was smething mre than a cmmunity centre, thugh nt quite a pwer centre. It assessed the value f the rent frm Wal-Mart at $10.50 per square ft, reasning in part that it wuld be inequitable fr the assessed value t be as lw as $3.50 per square ft when ther nearby Wal-Marts had been assessed at $10.50 r $11.50 per square ft. Standard f Review The Dunsmuir framewrk balances tw imprtant cmpeting principles: legislative supremacy, which requires the curts t respect the chice f Parliament r a legislature t assign respnsibility fr a given decisin t an administrative bdy; and the rule f law, which requires that the curts have the last wrd n whether an administrative bdy has acted within the scpe f its lawful authrity Presumptin f Reasnableness Unless the jurisprudence has already settled the applicable standard f review (Dunsmuir, at para. 62), the reviewing curt shuld begin by cnsidering whether the issue invlves the interpretatin by an administrative bdy f its wn statute r statutes clsely cnnected t its functin. If s, the standard f review is presumed t be reasnableness Why have the presumptin f reasnableness (deference) respects the principles f legislative supremacy (aka chice made t leave it in the hands f the tribunal), and fsters access t justice (t the extent that legislatures chice t delegated the matter t a tribunal) The Dunsmuir framewrk prvides a clear answer in this case. The substantive issue here whether the Bard had the pwer t increase the assessment turns n the interpretatin f s. 467(1) f the MGA, the Bard s hme statute. The standard f review is presumed t be reasnableness.

189 Categries the rebut the presumptin f reasnableness The fur categries f issues identified in Dunsmuir which call fr crrectness are: (1) cnstitutinal questins regarding the divisin f pwers, (2) issues bth f central imprtance t the legal system as a whle and utside the adjudicatr s specialized area f expertise, (3) true questins f jurisdictin r vires, and (4) issues regarding the jurisdictinal lines between tw r mre cmpeting specialized tribunals When the issue falls within a categry, the presumptin f reasnableness is rebutted, the standard f review is crrectness and n further analysis is require Is this a true questins f jurisdictin r vires? The chambers judge fund, and the Cmpany submits, that whether the Bard had the pwer t increase the assessment is a true questin f jurisdictin reviewable n crrectnesss This categry is narrw and these questins, assuming they indeed exist, are rare It is clear here that the Bard may hear a cmplaint abut a municipal assessment The issue is simply ne f interpreting the Bard s hme statute in the curse f carrying ut its mandate f hearing and deciding assessment cmplaints. N true questin f jurisdictin arises. Is a statutry right f appeal a new categry f crrectness? The Curt f Appeal cncluded that when the decisins f a tribunal are subject t a statutry right f appeal (r a right t apply fr leave t appeal), rather than rdinary judicial review, the standard f review n such appeals is crrectness Slatter J.A. reasned that the existence f a statutry right f appeal is a strng indicatin that the legislature intended the curts t shw less deference than they wuld in an rdinary judicial review I disagree. In my view, recgnizing issues arising n statutry appeals as a new categry t which the crrectness standard applies Cntextual Analysis The presumptin f reasnableness is grunded in the legislature s chice t give a specialized tribunal respnsibility fr administering the statutry prvisins, and the expertise f the tribunal in s ding. Expertise Expertise arises frm the specializatin f functins f administrative tribunals like the Bard which have a habitual familiarity with the legislative scheme they administer:... in many instances, thse wrking day t day in the implementatin f frequently cmplex administrative schemes have r will develp a cnsiderable degree f expertise r field sensitivity t the imperatives and nuances f the legislative regime Expertise may als arise where legislatin requires that members f a given tribunal pssess certain qualificatins. Hwever, as with judges, expertise is nt a matter f the qualificatins r experience f any particular tribunal member. Rather, expertise is smething that inheres in a tribunal itself as an institutin:... at an institutinal level, adjudicatrs... can be presumed t hld relative expertise in the interpretatin f the legislatin that gives them their mandate, as well as related legislatin that they might ften encunter in the curse f their functins The presumptin f reasnableness is NOT rebutted here 188

190 189 Applying the Standard f Review Methdlgy Presumptin f reasnableness may be rebutted by: Demnstrating questin falls within categries By precedent By applying factrs (cntextual analysis) t determine that a questin falls in ne f the categries (esp Q f central/general imprtance utside f expertise) By ding applying factrs (cntextual analysis) Crrectness Camp Crrectness Mldaver, Brwn, Côté: Expressing classic rule f law cncerns in Wilsn v Atmic Energy, Edmntn East (jined by McLachlin in Edmntn East) Cnsistency in the law required (Edmntn East, headnte in Wilsn v Atmic Energy) Nt afraid t use the wrd jurisdictin ISSUES RE CORRECTNESS Ratinale: t prmt[e] just decisins and avi[d] incnsistent and unauthrized applicatin f law (Dunsmuir, para 50) Is there rm fr deference in the crrectness standard? Or is the crrectness standard bslete? Pssible renaissance f crrectness building?? What methdlgy shuld the Curt fllw in cnducting crrectness review? Dunsmuir suggests de nv, but what values, purpses are served by determining crrectness in relatin t the tribunal s reasning? Dunsmuir: When applying the crrectness standard, a reviewing curt will nt shw deference t the decisin maker s reasning prcess; it will rather undertake its wn analysis f the questin. The analysis will bring the curt t decide whether it agrees with the determinatin f the decisin maker; if nt, the curt will substitute its wn view and prvide the crrect answer. Frm the utset, the curt must ask whether the tribunal s decisin was crrect. (para 50) NOTE PROCEDURAL REVIEW AND CORRECTNESS: PF is assessed n a crrectness standard WHY? Because its abut natural justice and the exercise f public authrity. The idea f prcedural fairness is very much anchred in the ld ideas f jurisdictin etc. Natural justice is lked at as a questin f law (f central imprtance). Think abut what may be different abut prcedural fairness? why is it nt mving twards a reasnableness analysis? Shuld it be? Ratinale: t prmte just decisins and avid incnsistent and unauthrized applicatin f the law Dunsmuir n Crrectness

191 Crrectness must be maintained in respect f jurisdictinal and sme ther questins f law This prmtes the decisins and avids incnsistent and unauthrized applicatin f law When applying the crrectness standard, a reviewing curt will nt shw deference t the decisin makers reasning prcess, rather if will undertake its wn analysis f the questin The analysis will bring the curt t decide whether it agree with the determinatin f the decisin maker, if nt the curt will substitute its wn view and prvide the crrect answer Frm the utset the curt will ask whether the tribunals decisin was crrect Edmntn East Case Dissent The aim is nt fr yu t knw the statutry regime in issue but rather t have ne example f the methdlgy. In ther wrds, yu d nt need t read this deeply but rather ntice what the judges d in the dissent t reach their cnclusin and hw different the exercise is frm the applicatin f reasnableness They lk at the whle scheme take everything int accunt It is basically statutry interpretatin! Its abut cnstructing a statute They tell yu what is crrect NOTE-just because yu are applying crrectness desn t mean everyne will agree n what is crrect Methdlgy f the review? An exercise f statutry interpretatin. 190 Reasnableness Ratinales: There may be mre than ne reasnable interpretatin/decisin (CUPE v NB Liqur) Curt shuld nt substitute its decisin fr the tribunal s Rule f law requires an assumptin that a legislature des nt intend the pwer it delegates t be exercised unreasnably (Catalyst, para 4; Rncarelli) Brings in the lgic f patent unreasnableness, tensins with crrectness Tensin: Judicial supremacy vs Judicial abdicatin REASONABLNESS PRE DUNSMUIR Reasnableness review demanded: apprpriate methdlgy (hw t cnduct the review), and apprpriate indicia f reasnableness (what t lk fr cntent-wise) Debate centered n depth f prbing/magnitude f errr (related t the need t distinguish btwn Reasnableness Simpliciter and Patent Unreasnableness) DUNSMUIR REASONABLENESS A curt cnducting a review fr reasnableness inquires int the qualities that make a decisin reasnable, referring bth t the prcess f articulating the reasns and t utcmes. [R]easnableness is cncerned mstly with the existence f justificatin, transparency and intelligibility [JTI] within the decisin-making prcess. But it is als cncerned with whether the decisin falls within a range f pssible, acceptable utcmes which are defensible in respect f the facts and the law. (at para 47) Pst-Dunsmuir: Des the applicatin f this standard vary in different cntexts? If s, hw? And d yu need bth JTI and a reasnable utcme? Des ne matter mre than the ther?

192 191 Ratinales There may be mre than ne reasnable interpretatin/decisin The curt shuld nt substitute their decisin fr the tribunal s if there is a reasnable reasns fr the tribunals decisin Rule f law requires an assumptin that a legislature des nt intent the pwer it delegates t be exercised unreasnably. This brings int tensins with crrectness There is a tensin abut whether we are dealing with judicial supremacy r judicial abdicatin (aka basically the curts nt ding enugh) Yu may argue that smetimes the judges are nt ding enugh, they are abdicating the rle f keepers f the rule f law Have they dne t much vs have they nt dne enugh JTI in a lt f ur cases we see prblems with JTI (aka n reasns) Really a lt f the time it just cmes dwn the reasnableness f utcme There are different methdlgies and different nes are apprpriate in different situatins!! [keep this in mind] Nte the tensins between the desire f judge t develp a jurisprudence that is bth principled and sufficiently flexible t address a brad range f administrative decisin making and the desire f administrative law practitiners t perate in a legal envirnment that enables them t achieve a practical slutin t their prblems It appears that the curt is usually inclines t accept a brad leeway fr decisin makers invlved in discretinary, plicy and fact-laden determinatins but they are frequently nt in agrees n whether and hw t defer when reviewing questins f law and statutry interpretatin Applying a Cntextual Standard f Reasnableness There is nt a categrical different when it cmes t questin f discretin vs questins f statutry interpretatin Camp One Standard (Abellla) Still t much time, effrt n SOR analysis means we need refrm (para 20): : [W]e still find the merits waiting in the wings fr their chance t be seen and reviewed. (para 25. Difference between crrectness and reasnableness is rhetrical: Are we nt saying essentially the same thing when we cnclude that there is nly a single reasnable answer available and when we say it is crrect? And this leads t whether we need tw different names fr ur appraches t judicial review, r whether bth appraches can live cmfrtably under a mre bradly cnceived understanding f reasnableness. (para 24) Revisit after McLean: invlves a Q f stat interp abut which the Curt suggests nly 1 reasnable interp exists Cncerns abut reasnableness review as disguised review fr crrectness (para 27) One standard (reasnableness) is rbust enugh t uphld the rule f law; can encmpass idea f a single reasnable answer: Nthing Dunsmuir says abut the rule f law suggests that cnstitutinal cmpliance dictates hw many standards f review are required. The nly requirement, in fact, is that there be judicial

193 review in rder t ensure, in particular, that decisin-makers d nt exercise authrity they d nt have. I see nthing in its elabratin f rule f law principles that precludes the adptin f a single standard f review, s lng as it accmmdates the ability t cntinue t prtect bth deference and the pssibility f a single answer where the rule f law demands it, as in the fur categries singled ut fr crrectness review in Dunsmuir. (para 31) Crrectness vs Reasnableness recent law and (very infrmed) pinin CORRECTNESS REASONABLNESS Khela v Missin Institute, para 79 Stratas JA: current apprach is incherent; apply the same SCC judges insisting n crrectness (n substance) where apprach (Dunmuir) t prcedural questns as they t the rule f law requires it (des this still include the duty cme in all shapes and sizes f fairness?): Daly: SCC is ging t have t address the questin; Brwn, Mldaver and Côté in Edmntn East third categry f cases where Cdn curts have applied and Wilsn v Atmic Energy deference t questins f PF already exists. Dunsmuir The Majrity in Dunsmuir explained the reasnableness standard Reasnableness is a deferential standard animated by the principles that underlies the develpment f the tw previus standards f reasnableness: certain questins that cme befre administrative tribunals d nt lend themselves t ne specific particular result instead they may give rise t a number f pssible reasnable cnclusins Tribunals have a margin f appreciatin within the range f acceptable and ratinal slutins In JR reasnableness is cncerned mstly with the existence f justificatin, transparency and intelligibility within the decisin making prcess. BUT it is als cncerned with whether the decisin falls within a range f pssible acceptable utcmes which are defensible in respect f the facts and law The mve twards a single reasnableness standard des nt pave the way fr amre intrusive review by curts and des nt represent a return t pre-sutham frmalism Deference is bth an attitude f the curt and a requirement f the law f JR it des nt mean the curt are subservient t the determinatins f decisin makers, r that the curts must shw blind reverence t their interpretatins, r that they may be cntent t pay lip service t the cncept f reasnableness review while in fact impsing their wn view Rather, deference imprts respect fr the decisin making prcess f adjudicative bdies with regard t bther the facts and the law The cncept f deference as respect requires the curts nt submissin but a respectful attentin t the reasns ffered r which culd be ffered in supprt f a decisin [Dyzenhaus] Deference in the cntext f reasnableness standard therefre implies that curts will give due cnsideratin t the determinatins f decisin makers A plicy f deference recgnized the reality that in many instances thse wrking day t day in the implementatin f frequently cmplex administrative schemes have r will develp a cnsiderable degree f expertise r field sensitivity t the imperatives and nuances f the legislative regime Deference requires respect fr the legislative chices t leave sme matters in the hands f the administrative decisin makers, fr the prcess and determinatins that draw n particular expertise and experiences, and fr the different rles f the curts and administrative bdies within the Canadian Cnstitutinal System APPLICATION Keeping in mind whether under the reasnableness standard the curt can cnvey little deference t a decisin maker in such cases is reasnableness really just a disguised versin f crrectness? The interpretatin f the Adjudicatr was unreasnable The reasning prcess was deeply flawed, and led t a cnstructin f the statute that fell utside the range f admissible statutry interpretatins The interpretatin f the law is always cntextual the law des nt perate in a vacuum, the adjudicatr was required t take int accunt he legal cntext which he was t apply t law The grievance prcess cannt have the effect f changing the terms f a the cntract f emplyment the adjudicatrs reasning prcess was incnsistent with the emplyment cntract and thus flawed 192

194 The cmbined effect f s 97(2.1) and cannt, n any reasnable interpretatin remve the emplyers right under cntract law t discharge an emplyee with reasnable ntice r pay in lieu f ntice The interpretatin was simply unreasnable in the cntext f the legislative wrding and the large labur cntext in which it is embedded CLASS NOTES See hw reasnableness lks like crrectness here Here they lk at the adjudicatrs reasns, but dn t really test if they are reasnable, we just see their explanatin as t why its is wrng nte the methdlgy difference here They dn t ask what did he d and wh did he get there? The dissent wh applies crrectness used the fact that a cntractual elements was present as the reasn t apply crrectness because cntractual elements are utside the adjudicatrs expertise 193 Khsa Binnie (Majrity) vs Fish (Dissent) Class Ntes We see Binnie saying the IAD is the final decisin maker, remrse desn t have t mean the same thing is HC cntext as it des in criminal law cntext Fish-Ges with reasnableness. He says this is nt enugh t nt grant the HC. Think abut hw the rule f law interacts here the criminal curt fund smething different that this curt. Things mattered a lt here that didn t in the criminal curts. Where the reasnableness standard applies it requires deference Reviewing curts cannt substitute their wn appreciatin f the apprpriate slutin, but must rather determine if the utcme falls within a range f pssible and acceptable utcmes which are defensible in respect f the facts and law There might be mre than ne reasnable utcme As lng as the prcess and the utcme fit cmfrtably with the principles f justificatin, transparency and intelligibility it is nt pen t a reviewing curt t substitute its wn view t a preferable utcme The majrity there is cnsiderable deference wed t the IAD and the brad scpe f discretin cnferred by the IRPA, thus there was n basis fr the federal curt t interfere with the IAD decisin t refuse special relief in this case This view is predicated n: The rle and functin f the IAD That K des nt cntest the validity f the remval rder made against him Is seeks exceptinal and discretinary relief that is nly available if the IAD itself is satisfied that sufficient humanitarian and cmpassinate cnsideratins warrant special relief The IAD was nt satisfied HC was warranted in this case Whether the curt here agrees with the IAD is nt what is t be decided here Reasns Dunsmuir reinfrced in the cntext f adjudicative tribunals reasns are imprtant In this case bth the majrity and dissenting reasns f the IAD disclse with clarity and cnsideratins in supprt f bth pints f view, and the reasns fr the disagreement f the utcme At the factual level, the are dived in large part f the differing interpretatins f K s expressin f remrse Majrity IAD He is relatively remrseful, and remrsefulness is a factr fr the exercise f relief, the are nt cnvinced this is a cmpelling factr here (aka dn t believe he is that remrseful) Dissent IAD they fund him remrseful and cntrite This srt f factual dispute shuld be reslved by the IAD in the applicatin f immigratin plicy, NOT reweight in the curts In terms f transparency and intelligible reasns, the majrity cnsidered each f the rubic factrs they reviewed the evidence and decided that in this case mst f the factrs did nt mitigate strngly in favr f relief The IAD was required t reach its wn cnclusins based n their appreciatin f the evidence, which it did

195 As was nted in Dunsmuir, certain questins that cme befre administrative tribunals d nt lend themselves t ne specific particular result, instead they may rise t a number f pssible reasnable cnclusins. Tribunals have a margin f appreciatin within the range f acceptable and ratinal slutins In light f the deference prperly wed t the IAD, this curt finds that the decisin f the IAD fell within the range f reasnable utcmes DISSENT-K s denial f street racing may well evidence sme lack f insight int his cnduct, but it cannt reasnably said t cntradict all the evidence in his favr n the issues f remrse, rehabilitatin and likelihd f reffence In respnse, the majrity says it is nt the jb the reviewing curt t re-weigh the evidence 194 Catalyst Paper, 2012 SCC FACTS: C is a large speciality paper cmpany, ne f the factries was lcated in Cwichan n Vancuver Island. It was a small cmmunity when they first came, and has since grwn. Mre peple cam and residential prperty values skyrcketed, while the values f C a prperty remained pretty much the same. The district was cncerned that taxing residential prperty at a rate that reflected its actual value relative t the value f ther classes f prperty in the district wuld result in unacceptable tax increased t existing residents. They respnded by keeping residential prperty taxes lw and increasing the tax rate n C s prperty. C was unhappy (they were in a very bad psitin, lsing mney etc). The district acknwledged the prblem and embarked n a gradual prgram t reduce C s rates. C still didn t think this was enugh, s having exhausted recurse t the district their nly alternative was t seek relief frm the curts. ISSUE: When can curts review municipal taxatin bylaws and what principles guide that review? HOLDING The pwer f the curts t set aside municipal bylaws in narrw, and cannt be exercised simply because a bylaw impses a greater share f tax burden n sme ratepayers than thers. OUTCOME C s argument-the curts can set aside municipal bylaws The district argues-the judicial pwer t verturn municipal bylaws is very narrw, and it cannt verturn a bylaw simply because it places a disprprtinate burden n a taxpayer The BCSC and BCCA upheld the impugned bylaw The parties agree that the reasnableness standard applies here The questin is whether the bylaw at issue is reasnable having regard t prcess and whether it falls within a range f pssible reasnable utcmes What factrs shuld t curt cnsider in determining what lies within the range f pssible reasnable utcmes? The answer lies in Dunsmuir s recgnitin that reasnableness must be assessed in the CONTEXT f the particular type f decisin making invlves and all relevant factrs it is an essentially cntextual inquiry A fundamental questin is the scpe f the decisin making pwer cnferred n the decisin maker by gverning legislatin The case law suggest that municipal bylaws must reflect the brad discretin prvisinal legislatrs have traditinally accrded t municipalities engaged in delegated legislatin Bylaws are nt quasi-judicial decisins they invlve an array f scial, ecnmic, plitical and nnlegal cnsideratins In this cntext reasnableness means curts must respect the respnsibility f elected representatives t serve the peple wh elected them and whm they are ultimately accuntable

196 The decided cases supprt the view f the trial judge that, histrically curt have refused t verturn municipal bylaws unless they were fund t be aberrant verwhelming r if n reasnable bdy culd have adpted them This deferential apprach t JR f municipal bylaws have been in place fr ver a century Unreasnable? if they were fund t be partial and unequal in their peratins as between different classes, they were manifestly unjust, if they disclsed bad faith, if they invlved such ppressive r gratuitus inferences with the rights f thse subject t them as culd find n justificatin in the minds f reasnable men these are the general indicatrs f unreasnableness in the cntext f municipal bylaws BUT remember what is unreasnable will depend f the applicable legislative framewrk C argues that Dunsmuir changed the law and that the traditinal deferential apprach t review f municipal bylaws n lnger hlds but this wuld be a misreading f Dunsmuir Reasnableness is a flexible deferential standard that varies with the cntext and the nature f the impugned administrative act here the cntext is the adptin f municipal bylaws The curts reviewing bylaws fr reasnableness must apprach the task against the backdrp f a wide variety f factrs that elected municipal cuncillrs may legitimately cnsider in enacting bylaws the applicable test is this: nly if the bylaw is ne n reasnable bdy infrmed by these factrs culd have taken will the bylaw be set aside Reasnableness limits the municipal cuncils in the sense that he substance f their bylaws must cnfrm t the ratinales f the statutry regime set up by the legislature Here the relevant legislatin is the Cmmunity Charter sectin 197 gives municipalities a brad and virtually unfettered legislative discretin t establish prperty tax rates Anther limitatin n municipalities passing bylaws flws frm the need fr reasnable prcess In determining if a particular bylaw falls within the scpe f the legislative scheme, factrs such as failure t adhere t required prcesses and imprper mtives are relevant Municipal cunsils are t adhere t apprpriate prcesses and cannt act fr imprper purpses It is imprtant t remember that requirements f prcess, like the range f reasnable utcmes, carries with the cntext and nature f the decisin making prcess Frmal reasns may be required fr decisins that invlve quasi-judicial adjudicatin by a municipality, BUT that des nt apply t the prcess f passing bylaws The reasns fr a municipal bylaw are traditinally deduced frm the debate, deliberatins and statements f the plicy that give rise t the bylaw The municipality here is nt required t frmally explain the basis f the bylaw APPLICATION Remember-ultimate questin=whether the taxatin bylaw falls within a reasnable range f utcmes (this must be judged n the apprach the curts have traditinally adpted in reviewing bylaws passed by municipal cuncils. Municipal cuncils passing bylaws are entitled t cnsider nt merely the bjective cnsideratins bearing directly n the matter, but brader scial, ecnmic and plitical issues it is apprpriate t cnsider bther prcess and cntent f the bylaw Prcess C des n allege the vting prcedure f the District were incrrect, nt de sit allege bad faith it cntends that the districts prcess is flawed because it prvided n frmal reasns This cntentin cannt succeed Municipal cuncils are nt required t give frmal reasns r lay ut a ratinale basis fr the bylaws The reasns fr the bylaws were clear t everyne here Discussins and crrespndence between the district and C left little dubt as t the reasns fr the bylaw Cntent The impact f the bylaw n C is harsh But there are cuntervailing cnsideratins-the cuncil was entitled t cnsider the impact f lng term fixed incme residents 195

197 The cuncil is wrking ver a perid f years twards the gal f mre equitable sharing f the tax burden its apprach cmplies with the Cmmunity Charter (which permits municipalities t apply different tac rates t different classes f prperty) Taking all the factrs int accunt, the bylaw fell within a reasnable range f utcmes CLASS NOTES There is nt charter anchr, r cnstitutinal ne. This is a classic plycentric decisin at the legislative end. They did a cntextual applicatin f the reasnableness standard fundamental questins is the scpe f decisin making pwer cnferred n the decisin maker by the gverning legislatin What d they use as reasns? here there were n reasns but the curt used the recrd, it was clear why the decisin was being made and catalyst knew the reasns, s there is n prblem f TJI here. This isn t gap filling, they dn t have t supply reasns, it is clear frm the recrd. Cntextual apprach t reasnableness review The cntext f what reasnableness requires is defined by the scpe f the decisin-making pwer: Para 18 The fundamental questin is the scpe f decisin-making pwer cnferred n the decisin-maker by the gverning legislatin. The scpe f decisin-making pwer is determined by the type f case at hand. Methdlgy f review? (Cmpare t ATA, Agraira) What are the reasns reviewd in the case? 196 McLean v BC (Securities Cmmissin), 2013 SCC FACTS: invlved the review f a decisin by the BC Securities Cmmissin, based n its interpretatin f language in its hme statute (the securities act) t allw the cmmissin t calculate a limitatin perid fr initiating prceedings against a persn frm the date f the persn s settlement with a securities cmmissin in anther jurisdictin rather than frm the date f the persns underlying miscnduct. The issue is arund pursuing sanctins in BC. (was it based n the riginal cnduct r settlement agreement) HOLDING SCC applied a reasnableness standard presumptively (n the basis that he cmmissin interpreted its wn statute) and upheld the cmmissin s decisin as reasnable. REASONING The curt is satisfied that the cmmissins interpretatin is a reasnable cnstructin f the relevant statutry language the cmmissiners cnclusins supprts the legislative bjective facilitating interjurisdictinal cperatin in secndary prceedings and des s withut undercutting the crucial rle f limitatin perids What was happening The OSC rder barred the appellant fr 5 years frm trading in securities, and banner her fr 10 years frm acting a fficer r directr fr certain entities the reach f these sanctins did nt extend beynd Ontari s barders (n ne challenged the prprietary f these rders) Nthing happened fr 15 mnths, then she was ntified by the Executive Directr f the BC s security cmmissin that he was applying t the cmmissin under s 161(1) f the Act fr public interest rder against her based n sectin 161(6)(d) 161(6)(d) allws the executive directr t make an rder if the persn has agreed with a securities regulatry authrity, a self regulatry bdy r exchange, in Canada r elsewhere t be subject t sanctins, cnditins and restrictins r requirements [the cmmissiner was relying n her settlement agreement with the OSC] She says that this is untenable because the plain wrding f the sectin says nthing abut decisins, rders r settlement agreements being admissble as evidence als that under her interpretatin the limitatin perid culd expire befre the event referred t in sectin 161(6)(d) even ccurs The curt cnclude that BOTH interpretatins are reasnable the statutry language here is nt clear It will nt always be the case that a particular prvisin permits the multiple reasnable interpretatins Where the rdinary tls f statutry interpretatin lead t a single reasnable interpretatin and the administrative decisin maker adpts a different interpretatin, its interpretatin will necessarily be unreasnable

198 Between tw pssible interpretatins put frward with respect t the meaning f s 159 as it applies t 161(6)(d), bth find sme supprt in the text, cntext and purpse f the statute Aka bth are reasnable The litmus test is that if the cmmissin had adpted the ther interpretatin the curt wuld be hard pressed t reject its decisin as unreasnable The bttm line, the cmmissin hlds the interpretive upper hand under a reasnableness review the curt defers t ANY reasnable interpretatin adpted by an administrative decisin maker, EVEN IF ther reasnable interpretatins may exist Because the legislature has charged the administrative decisin maker rather than the curts with administering and applying its hme statute, it is the decisin maker first and fremst that has the discretin t reslve a statutry uncertainty by adpting any interpretatin that the language can reasnably bear Thus the appellants burden here is nt t shw her cmpeting interpretatin is reasnable BUT that the cmmissins interpretatin is unreasnable (she has nt dne this) CLASS NOTES Nte that this is als a case where the curt is dealing with implicit decisin making the rder des nt have reasning abut the timeline (because the cmmissin assumed they were within the timeline) The curt relied n the cmmissins submissins n JR t explain either interpretatin Des reasnableness always mean that there is mre than ne reasnable interpret f a statute? It will nt always be the case that prvisin permits multiple reasnable interpretatins Are they talking abut crrectness then? and if s des it matter if the methdlgy lks the same? The nly difference may be that the decisin makers interpretatin gets mre deference In this case the majrity said bth interpretatins were pssible here (the minrity said the nly reasnable interpretatin was that the clck starts running after the settlement agreement in rder t satisfy the statutry purpse [aka the cmmissins interpretatin]) Maybe statutry language is nt always ambiguus In thse cases there is nly ne reasnable interpretatin Interpretatin f s. 159 (vis-à-vis s. 161(6)(d)): Prceedings under this Act. must nt be cmmenced mre than 6 years after the date f the events that give rise t the prceedings. Questin f interpretatin: what are the events that start this clck? The underlying miscnduct (2001)? Or the Ontari settlement agreement? 1) Issue f lack f reasns frm Sec. Cmmiss n the pint Hw des the Curt handle this? 2) Des reasnableness always mean there is mre than ne reasnable interp f a statute? It will nt always be the case that a particular prvisin permits multiple reasnable interpretatins. Where the rdinary tls f statutry interpretatin lead t a single reasnable interpretatin and the administrative decisin maker adpts a different interpretatin, its interpretatin will necessarily be unreasnable n degree f deference can justify its acceptance.. In thse cases, the range f reasnable utcmes (Canada (Citizenship and Immigratin) v. Khsa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 4) will necessarily be limited t a single reasnable interpretatin and the administrative decisin maker must adpt it (Mldaver J, para 38) An invitatin t bring crrectness review back in thrugh reasnableness review? Burden f prf: The bttm line here, then, is that the Cmmissin hlds the interpretative upper hand: under reasnableness review, we defer t any reasnable interpretatin adpted by an administrative decisin maker, even if ther reasnable interpretatins may exist. Accrdingly, the appellant s burden here is nt nly t shw that her cmpeting interpretatin is reasnable, but als that the Cmmissin s interpretatin is unreasnable. (Paras 40-41) Karakatsanis J says nly ne reasnable interpretatin here. 197 Alberta Teaches Assciatin, 2011 SCC FACTS: here the SCC utlines hw the curts shuld cnduct the reasnableness review f an adjudicatrs implicit decisin (ie a decisin fr which the adjudicatr has supplied n reasns). In that case the adjudicatr appinted by Alberta s infrmatin and privacy cmmissiner under the Persnal Infrmatin Prtectin Act decided that the

199 Assciatin had vilated its member s privacy rights by disclsing persnal infrmatin. The Assciatin sught JR f the rder n the basis that he cmmissiner failed t extend the deadline within which an inquiry culd be held under the PIPA and lst jurisdictin fr failing t cmply with timelines prescribed in sectin 50(5) f the act. This issue was nt raised befre the riginal adjudicatr by any f the parties and nt addressed in her reasns HOLDING In the Case f Implicit Decisin (aka decisin fr which there are n reasns) n issues nt raised at the first hearing: When a reasnable basis fr the decisin is apparent t the reviewing curt, it will generally be unnecessary t remit the decisin t the tribunal, instead the decisin shuld simply be upheld as reasnable On the ther hand, a reviewing curt shuld shw restraint befre finding that an implied decisin n an issue nt raised befre the tribunal was unreasnable it will generally be inapprpriate t find that there is n reasnable basis fr the tribunals decisin withut first giving the tribunal an pprtunity t prvide ne REASONING Had the issue been raised befre the adjudicatr it wuld have been subject t review n a reasnableness standard Where reviewing curt finds that the tribunal has made an implicit decisin n a critical issues, the deference due t the tribunal des nt disappear because the issue was nt raised befre the tribunal The adjudicatr implicitly decided that extending the 90 day perid fr cmpleting f an inquiry after the expiry f that perid did nt result in the autmatic terminatin f the inquiry The adjudicatr prvided n reasns fr her decisin, it is therefr necessary t address hw a reviewing curt is t apply the reasnableness standard in such circumstances Obviusly where a tribunals decisin is implicit, the reviewing curt cannt refer t the tribunals prcess f articulating reasns, nr t justificatin, transparency and intelligibility within the tribunals decisin making prcess The reviewing curt cannt give respectful attentin t the reasns ffered because there are nt reasns It may well be that the administrative decisin maker did nt prvide reasns because the issue was nt raised and it was nt viewed as cntentius if there exists a reasnable basis upn which the decisin maker culd have decided as it did, the curt must nt interfere The curt shuld still give due regard t reasns when they are given and this shuld nt dilute the imprtance f giving prper reasns Deference under the reasnableness standard is best given effect when administrative decisin makers prvide intelligible and transparent justificatin fr their decisins, and when curts grund their review f the decisin in the reasns prvided this is when they are subject t a duty t give reasns But where there is n duty, r when nly limited reasns are required, it is entirely apprpriate fr curts t cnsider the reasns that culd be ffered fr the decisin when cnducting a reasnable review The pint is that parties cannt gut the deference wned t a tribunal by failing t raise the issue befre the tribunal and thereby mislead the tribunal n the necessity f prviding reasns In sme cases, it may be that a reviewing curt cannt adequately shw deference t the administrative decisin maker withut first prviding the decisin maker the pprtunity t give its wn reasns fr the decisin In such a case, even tugh there is an implied decisin, the curt may see fit t remit the issue t the tribunal t allw the tribunal t prvide reasns Hwever, remitting the issue t the tribunal may undermine the gal f the expedient and cst-efficient decisin making Accrdingly, remitting the issue t the tribunal is nt necessarily the apprpriate ptin available t a curt when it is asked t review a tribunals implied decisin n an issue that was nt raised befre the tribunal When a reasnable basis fr the decisin is apparent t the reviewing curt, it will generally be unnecessary t remit the decisin t the tribunal, instead the decisin shuld simply be upheld as reasnable On the ther hand, a reviewing curt shuld shw restraint befre finding that an implied decisin n an issue nt raised befre the tribunal was unreasnable it will generally be inapprpriate t find that there is n reasnable basis fr the tribunals decisin withut first giving the tribunal an pprtunity t prvide ne 198

200 Care must be taken t nt give parties an pprtunity fr a secnd hearing befre a tribunal as a result f their failure t raise at the first hearing all f the issues they shuld have raised CLASS NOTES We still see Binnie nt really letting g f his apprach frm Dusmuir the idea f pssibility different apprach t reasnableness (saying we wnt escape cmplexities by applying ne standard) Binnie and the Majrity have slightly different apprach, but bth are still gd ne is saying it is a matter f cntext ne is saying it is a matter f scrutiny We see a cncern that if yu can see that a decisin/utcme is reasnable it wuld nt be efficient t g back and have the tribunal t make a decisin/justify the decisin they already made We must als remember that there is a duty t give reasns (prcedural fairness) BUT that duty can be satisfied in a variety f ways s we have t have an apprach t reasnableness that allws fr variatin in what reasns are 2 pints: Is reasnableness a variable standard? Hw d yu apply reasnableness when the reasns f the decisin maker d nt address the issue at hand? (i.e., gap in the reasns) ATA Binnie vs Rthstein n cntextual vs variable applicatin f reasnableness Rthstein J, ATA: The majrity reasns in Dunsmuir d nt recgnize variable degrees f deference within the reasnableness standard f review.once it is determined that a review is t be cnducted n a reasnableness standard, there is n secnd assessment f hw intensely the review is t be cnducted. A review f a questin f statutry interpretatin is different frm a review f the exercise f discretin. Each will be gverned by the cntext. But there is n determinatin f the intensity f the review with sme reviews clser t a crrectness review and thers nt. (at para 47) Binnie J Pre ATA, in Khsa (2009): Reasnableness is a single standard that takes its clur frm cntext ( at para 59, fr majrity) In ATA: Reasnableness is a deceptively simple mnibus term which gives reviewing judges a brad discretin t chse frm a variety f levels f scrutiny frm the relatively intense t the nt s intense. (at para 87) reasnableness review with a gap in the reasns Recall that principle f deference requires respectful attentin t the reasns ffered r which culd be ffered in supprt f a decisin (at para 52, emphasis added) Nte als: Assuming it is apprpriate fr the curt t allw a new issue t be raised n JR, [i]t will generally be inapprpriate t find that there is n reasnable basis fr the tribunal s decisin withut first giving the tribunal an pprtunity t prvide ne. (at para 55) Hw des the Curt find a reasnable basis fr the adjudicatr s implied decisin? i.e., Hw is the gap filled? Hw is the methd f review in this case the same r different frm crrectness review? Agraira, 2013 SCC FACTS: A was the Libyan citizen wh wanted t becme a permanent residence, refugee status failed after a credibility issue. Assciatin with the pssible terrrist rganizatin. QUESTION Was the ministers decisin reasnable? Frm Newfundland and Labradr Nurses Unin Read as a whle, I d nt see Dunsmuir as standing fr the prpsitin that the adequacy f reasns is a stand-alne basis fr quashing a decisin, r as advcating that a reviewing curt undertake tw discrete analyses ne fr the reasns and a separate ne fr the result It is a mre rganic exercise the reasns must be read tgether with the utcme and serve the purpse f shwing whether the result falls within a range f pssible utcmes. This, it seems t me, is what the Curt was saying in Dunsmuir when it tld reviewing curts t lk at the qualities that make a decisin reasnable, referring bth t the prcess f articulating the reasns and t utcmes Meaning f Natinal Interest Under Sectin 34(2) f the IRPA 199

201 The meaning f the term natinal interest in s. 34(2) f the IRPA was central t the Minister s exercise f discretin in this case. The Minister, in making his decisin with respect t the appellant, did nt expressly define the term natinal interest. We are therefre left in the psitin, n this issue, f having n express decisin f an administrative decisin maker t review. We are therefre left in the psitin, n this issue, f having n express decisin f an administrative decisin maker t review. It is evident frm the Minister s hlding that [i]t is nt in the natinal interest t admit individuals wh have had sustained cntact with knwn terrrist and/r terrrist-cnnected rganizatins that the Minister made a determinatin f the meaning f natinal interest.. In these circumstances, we may cnsider the reasns that culd be ffered fr the [Minister s] decisin when cnducting a reasnableness review f that decisin Accrdingly, I nw turn t cnsider, what appears t have been the ministerial interpretatin f natinal interest, based n the Minister s express reasns and the Guidelines, which infrm the scpe and cntext f thse reasns. I will then assess whether this implied interpretatin, and the Minister s decisin as a whle, were reasnable. The Ministers Interpretatin f Natinal Interest the Minister placed particular emphasis n matters related t natinal security and public safety in the reasns he gave fr his decisin Taking all the abve int accunt, had the Minister expressly prvided a definitin f the term natinal interest in supprt f his decisin n the merits, it wuld have been ne which related predminantly t natinal security and public safety, but did nt exclude the ther imprtant cnsideratins utlined in the Guidelines r any analgus cnsideratins, I am f the view that the Minister is entitled t deference as regards this implied interpretatin f the term natinal interest. As Rthstein J. stated, [w]here the reviewing curt finds that the tribunal has made an implicit decisin n a critical issue, the deference due t the tribunal des nt disappear In my view, the Minister s interpretatin f the term natinal interest is reasnable. It is reasnable because, t qute the wrds f Fish J. frm Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, it accrds... with the plain wrds f the prvisin, its legislative histry, its evident purpse, and its statutry cntext (para. 46). That is t say, the interpretatin is cnsistent with Driedger s mdern apprach t statutry interpretatin: Having cncluded that the Minister s implied interpretatin f the term natinal interest is reasnable, I shuld als cnfirm that the decisin as a whle is valid The Minister s reasns were justifiable, transparent and intelligible. Althugh brief, they made clear the prcess he had fllwed in ruling n the appellant s applicatin. reviewed and cnsidered all the material and evidence befre him. Having dne s, he placed particular emphasis n: the appellant s cntradictry and incnsistent accunts f his invlvement with the LNSF, a grup that has engaged in terrrism; the fact that the appellant was mst likely aware f the LNSF s previus activity; and the fact that the appellant had had sustained cntact with the LNSF. The Minister s reasns revealed that, n the basis f his review f the evidence and ther submissins as a whle, and f these factrs in particular, he was nt satisfied that the appellant s cntinued presence in Canada wuld nt be detrimental t the natinal interest the Minister s decisin falls within a range f pssible acceptable utcmes which are defensible in light f the facts and the law. The burden was n the appellant t shw that his cntinued presence in Canada wuld nt be detrimental t the natinal interest a curt reviewing the reasnableness f a minister s exercise f discretin is nt entitled t engage in a new weighing prcess CLASS NOTES Clearly this is a decisin f the ministers discretin but the curt treats it as a separate questin f statutry interpretatin But this case hives ff what natinal interest means s in rder t determine if smene shuld get the exceptin he wuld first have t decide what natinal interest means 200

202 Here the curt separates the tw is this really crrect thugh? What is the nature f this questin? they treat the questin f the meaning f natinal interest separate frm the applicatin What is the gap in the reasns? A argues that the HC factrs are nt talked abut as relevant Definitin f natinal interest What is the range f reasnable utcmes? he is in r he is nt Really the nly questins is whether there was enugh in the reasns t uphld the rule f law the curt said yes! What des reasnableness require in the prcess f reasns What gap (r gaps) is there in the reasns? Hw des the Curt fill the gap? Hw is the idea f reasnableness as justificatin, transparency and intelligibility satisfied in this case? D yu agree with the Curt s apprach? 201 Edmntn East Majrity Applying Reasnableness ISSUE Was it Reasnable fr the Bard t Find It Culd Increase the Assessment? Reasnableness Review in the Absence f Reasns When a tribunal des nt give reasns, it makes the task f determining the justificatin and intelligibility f the decisin mre challenging When prcedural fairness requires a tribunal t prvide sme frm f reasns, a cmplete failure t d s will amunt t an errr f law Hwever, when a tribunal s failure t prvide any reasns des nt breach prcedural fairness, the reviewing curt may cnsider the reasns which culd be ffered in supprt f the decisin In apprpriate circumstances, this Curt has, fr example, drawn upn the reasns given by the same tribunal in ther decisins and the submissins f the tribunal in this Curt Here the cmpany seemed t have ceded t the submissin that the bard has the authrity t make changes (increase r decrease) And a party cannt gut the deference wed t a tribunal by failing t raise the issue befre the tribunal and thereby mislead the tribunal n the necessity f prviding reasns Accrdingly, I shall review the Bard s decisin in light f the reasns which culd be ffered in supprt f it Was the Bards Decisin Reasnable? The Bard prceeded n the basis that s. 467(1) allwed it t increase the assessment at the City s request. In my view, this was a reasnable interpretatin f the legislatin. 467(1) An assessment review bard may, with respect t any matter referred t in sectin 460(5), make a change t an assessment rll r tax rll r decide that n change is required. On its face, the language f s. 467(1) empwers the Bard t change an assessment as a matter f rdinary language change culd include increase This is als cnsistent with the purpse f the MGA, a cntrary interpretatin may run against the MGA Within the cmplaints prcess, the Bard s rle is t determine whether the assessment is fair and equitable (s. 467(3)) Interpreting change in this way is cnsistent in ensuring assessments will be fair and equitable The Bard s view that s. 467(1) allws it t increase an assessment is als cnsistent with the scheme f the MGA A cmplaint des nt really belng t anyne, it is simply the prcess thrugh which the Bard, with assistance frm the taxpayer and municipality (and ptentially ther persns at the Bard s request), determines the crrect, fair and equitable value fr the assessment. T cnclude, it was reasnable fr the Bard t interpret s. 467(1) t permit it t increase the assessment at the City s request

203 The alternative wuld permit taxpayers t use the cmplaints prcess t prevent assessments made in errr frm being crrected, thereby frustrating the MGA s purpse. CLASS NOTES This is a helpful statutry interpretatin f hw the curt applies the reasnableness standard The majrity is lking at the implied decisin and can it be supprted (reasnableness), and dissent is lking at it frm a fresh perspective (like yu wuld n crrectness) Methdlgy f review? What is different frm the dissent s methdlgy? Hw is majrity deferential? 202 Charter Rights and Discretinary Decisins Whether an administrative tribunal has the authrity t deal with cnstitutinal questins r is a curt f cmpetent jurisdictin has traditinally been cnsidered a jurisdictinal questin n which the tribunal had t be crrect [Martin] Since Dunsmuir, the cncept f jurisdictin has been significantly narrwed

204 Dunsmuir cnfirmed that crrectness applies t cnstitutinal questins, with ut requiring any standard f review analysis n this pint because f the unique rle f s. 96 curts as interpreters f the Cnstitutin BUT this simple rule des nt apply t all types f cnstitutinal issues that arise at the administrative level and may be reviewed by a curt. Types f Cnstitutinal questins that arise n JR: 1. The review f a tribunals decisin with respect t its jurisdictin ver cnstitutinal challenges t it enabling legislatin and ver remedies, 2. The review f the tribunals determinatin f the cnstitutinal validity f legislatin r award f a cnstitutinal remedy, and 3. The review f an administrative decisin that allegedly vilates a charter (r abriginal) right Distinguishing the different types f cnstitutinal questins is imprtant fr determining the standard f review The first and secnd type f issue Standard f review=crrectness The Third issue the SCC determined t Dre that applicable standard f review=reasnableness The standard f review als pints t the methdlgy that is used t determine whether the infringement f a right can be justified If the issue arises frm a challenged t the legislatin as a whle, then the use f a crrectness standard requires that the Oakes test apply in cnducting a sectin 1 analysis If the issue arises frm a challenge t the exercise f administrative discretin, then the reasnableness standard allws fr deference (adjusted t incrprate the questin f prprtinality as set ut in Dre) In Dre, the curt mve decisively tward an administrative law apprach, using a reasnableness standard (infused with charter values) t review discretinary decisins that impact charter rights 203 PRE DORE Incnsistency in appraches at the SCC Apply full Charter analysis (incl s. 1) t decisins? Or analyze via reasnableness (n s. 1)? Cncerned methdlgy f review s. 1 r nt? Oakes as prly suited t review f admin decisins: Prescribed by law? Articulatin f pressing and substantial bjective behind the decisin? Shuld admin agencies/decisin-makers have t justify their decisins under s. 1 as part f their way f ding business? Dre v Barreau du Quebec, 2012 SCC FACTS: D was a lawyer in Quebec. He was befre a judge wh was a real jerk, he made detrgatry cmments twards D. D then wrte a letter t the judge critizing him etc. He als requested t nt g befre that judge again and filed a cmplaint against the judge. The judicial panel fund that the judge behaved imprperly. After the letter D wrte was frwarded t the prfessinal gvernance bdy f lawyers in Quebec, which initiated a cmplaint against him. The bard suspended him fr 21 days, he appealed the decisin t a tribunal (befre which is agued against the cnstitutinality f that decisin). The tribunal reviews the cnditinality f the bards decisin and fund that it was a minimal restrictin f his freedm f expressin. D then applied fr JR f the tribunals decisin (the Superir Curt f Quebec upheld the decisin) ISSUE: What is the standard f review fr administrative decisins that are challenged n the basis f a charter vilatin? HOLDING The discipline cmmittees decisin t reprimand that lawyer reflected a prprtinate balance f its public mandate t ensure that lawyers behave with bjectively, mderatin and dignity with the lawyers expressive rights thus it was reasnable REASONING D is challenging the cnstitutinality f the decisin itself, claiming that it vilated his freedm f expressin under the Charter This raises squarely the issue f hw t prtect Charter rights and the value they reflect in the cntext f adjudicated administrative decisins

205 Nrmally, if a discretinary administrative decisin is made by an adjudicatr within their mandate, that decisin is judicially reviewed fr its reasnableness the questin is whether the presence f a charter issue calls fr the replacement f this administrative law framewrk with the Oakes test, the test traditinally used t determine whether the state has justified a law s vilatin f the Charter as a reasnable limit under sectin 1 Abella seems it seems pssible t recncile the tw regimes in a way that prtects the integrity f each: By recgnizing that the Oakes test may nt be wrkable in the cntext f an adjudicated decisin, distilling its essence wrks the same justificatry muscle balance and prprtinality The ntin f deference in administrative law shuld nt mre be a barrier t effective charter prtectin than the margin f appreciatin is when we apply a full sectin 1 analysis In assessing whether a law vilated the charter, we are balancing the gvernments pressing and substantial bjectives against the extent t which they interfere with the Charter right in issue In assessing whether an adjudicated decisin vilated the Charter we are engaged with balancing smewhat different, but related cnsideratins. namely that the decisin make disprprtinality (and therefr unreasnably) limited a charter right In bth cases we are lking fr whether there was an apprpriate balance between rights and bjectives, and the purpse f bth exercises is t ensure that the rights at issue are nt unreasnably limited The nature f the reasnableness analysis is always cntingent n its cntext in the charter cntext the reasnableness analysis is ne that centre f prprtinality (that is n ensuring that the decisin interferes with the relevant charter right n mre than necessary given the statutry bjectives) If the decisin maker is disprprtinately impairing a charter right, it is unreasnable if n the ther hand it reflects a prper balance f the Mandate f the charter prtectin, it is a reasnable ne Analysis In this case there is cnfusin abut the apprpriate framewrk t be applies in reviewing administrative decisin fr cmpliance with charter values The SCC ges thrugh the histry f hw these decisins have been treated [Page ] Tday the curt has tw ptins fr reviewing discretinary administrative decisins that implicate charter values t adpt the Oakes framewrk, develped fr reviewing laws fr cmpliance with the cnstitutin (this prtects charter rights, but it des s at the risk f undermining a mre rbust cnceptin f administrative law) Fr the curt t embrace a richer cnceptin f administrative law, which wish discretin is exercised in light f cnstitutinal guarantees and the values they reflect (under this apprach it is unnecessary t use sectin 1, the decisin makes are ALWAYS required t cnsider fundamental values) The administrative law apprach recgnizes the legitimacy that this curt has given t administrative decisin making in cases such as Dunsmuir the curt has emphasized that administrative bdies are empwered, and indeed required t cnsider Charter values within the scpe f their expertise When charter values are applies t an individual administrative decisin they are being applies in relatin t a particual set f facts Dusmuir tells us this shuld attract deference When a particular law is being assessed fr charter cmpliance, n the ther hand, we are dealing with pricniples f general applicatin The mre flexible administrative apprach t balancing Charter values is als mre cnsistent with the nature f discretinary decisin making This curt has recgnized that difficult f applying Oakes beynd the cntext f reviewing a law r ther rules f general applicatin The curt then revisits sme f the decisins where they fund applying the Oakes framewrk wuld nt wrk This then is used t supprt the argument that the Oakes framewrk may nt wrk in all cntexts invlving charter rights The same seems t be true in the administrative law cntext where decisin makers are called upn t exercise their statutry discretin in accrdance with charter prtectins that Oakes may nt be the best vehicle here There is n dubt that when a tribunal is determining the cnstitutinality f a law the standard f review is CORRECTNESS BUT it is nt clear that crrectness shuld be used t determine whether an administrative decisin maker has taken sufficient accunt f Charter values in making a discretinary decisin It seems that applying Dunsmuir principles, results in reasnableness remaining the applicable review standard fr disciplinary panels the fact that Charter interests are implicated des nt argue fr a different standard 204

206 Reasns fr judicial restraint in reviewing agency decisin n matter in which their expertise is relevant des nt lse their cgency simply because the questin in issue als has a cnstitutinal dimensin An administrative decisin maker exercising a discretinary pwer under his r her hme statute has by virtue f their expertise and specializatin, particular familiarity with the cmpeting cnsideratins at play in weighting charter values Many cases have shwn the SCC recgnitin f the distinct advantage that administrative bdies had in applying the charter t specific sets f facts in the cntext f their enabling legislatin In the alternative, if crrectness applies then every case that implicates charter values wuld transfrm things that wuld nrmally be reviewed n a reasnableness standard, int ne reviewing n a crrectness ne S every time a party wuld argue a charter values n JR crrectness wuld apply this wuld ignre the specialized expertise tribunals have in exercising discretinary pwers in the areas where charter values are being balanced Example every time sme was disciplined by a bdy the party wuld argue charter rights, and that JR wuld be transfrmed frm a reasnableness assessment t a crrectness ne Even where charter values are invlves, the administrative decisin maker will generally be in the best psitin t cnsider the impact f the relevant Charter values n the specific facts f the case bt the decisin maker and reviewing curts must remain cnscius t the fundamental imprtance f Charter values in the analysis Hw des the administrative decisin maker apply Charter values in the exercise f statutry discretin? they balance the Charter values with the statutry bjectives. In balancing the decisin maker shuld (1)cnsider the statutry bjectives (2)shuld ask hw the Charter value at issue will best be prtected in view f the statutry bjectives this is at the cre f PROPORTIONALITY (requires the decisin maker the balance the severity f the interference f the Charter prtectin with statutry bjectives [this is where the rle f judicial review fr reasnableness aligns with the ne applies in the Oakes cntext] In the cntext f a review f a administrative decisin fr reasnableness, where the decisin makers are entitled t a measure f deference s lng as the decisin falls within a rang f pssible acceptable utcmes On JR, the questin becmes whether in assessing the impact f the relevant Charter prtectin and given the nature f the decisin and the statutry and factual cntext, the decisin reflects a prprtinate balance f the Charter prtectins at play When a curt is faced with reviewing an administrative decisin that implicates charter rights the issues becmes ne f prprtinality and calls fr integrating the spirit f sectin 1 int JR Thrugh this JR is cnducted within the administrative framewrk, there is still cnceptual harmny between a reasnableness review and the Oakes framewrk, since bth cntemplate giving a margin f appreciatin f deference t administrative and legislative bdies in balancing Charter values against brader bjectives If in exercising statutry discretin, the decisin maker has prperly balanced the relevant charter value with the statutry bjectives, the decisin will be fund t be reasnable Applicatin The charter value at issue here expressin (specifically, hw shuld it be applies in the cntext f a lawyers prfessinal duties) The determinatin f whether the actins f a lawyer vilate sectin 2.03 is an given case is left entirely t the disciplinary cuncils discretin N part is challenging the imprtance f prfessinal discipline t prevent incivility in the legal prfessin We are balancing fundamental imprtance f pen criticisms f public institutinal with the need t ensure civility in the prfessin This balancing is fact dependent, and a discretinary exercise In the cntext f a disciplinary hearing, criticism will be measured against the publics reasnable expectatin f a lawyers prfessinalism the cuncil fund that the letter was utside thse expectatins (his displeasure with the judge was justified, but the respnse was nt) In the circumstances, the disciplinary cuncil fund that D s letter warranted a reprimand this cnclusin was a reasnable balance f D s expressive rights with statutry bjectives CLASS NOTES 3 Pints: What it stands fr: clarificatin r statement f new apprach t review f admin decisins fr cmpliance with Charter rights Applying reasnableness as prprtinality 205

207 Implicatins, issues ging frward (after Lyla, LSBC v TWU, Bld Tribe v Alberta) Adds anther dimensin r apprach t reasnableness when Charter values, interests (rights?) are at stake: prprtinality [T]here is nnetheless cnceptual harmny between a reasnableness review and the Oakes framewrk since bth cntemplate giving a margin f appreciatin, r deference, t administrative and legislative bdies in balancing Charter values against brader bjectives. (para 57) Hw t apply reasnableness as prprtinality? see paras Applicatin in the case? see paras 59-72, esp para 70 **NOTE they use the language implicated charter value nt a vilatin f a charter right Remember the imprtance f the discretinary element The methdlgy we take t reasnableness in this cntext takes elements frm akes test Reasnableness f prprtinality Lyla shws that Dre hasn t really sunk in yet, we still see the curt using different methdlgy Crrectness exists with challenges t the law itself reasnableness when we are challenging a decisin Why des the argue fr reasnableness Tribunals have expertise and crrectness and desn t respect that Respecting legislative intentin Inefficiencies The shift was already there think back t Baker (it may nt have been express there but this is what was ging n) Applicatin yu lk at statutry bjective then whether the decisin maker balanced the severity with statutry bjectives Reasnableness and prprtinality here is mre f a fluid discussin abut he issues( as ppsed t an applicatin f a defined test) 206 Nte n Lyla High Schl v Quebec, 2015 SCC Pst Dre the SCC remains divided n the methdlgy and standard f review, particularly when there are difference regarding the scpe f the charter right in issue

208 In this case, the curt agreed that a ministerial decisin nt t exempt a private cathlic schl frm teaching a mandatry secular prgram n ethics and religius culture must be verturned, but the judges were divided n whether the apply an administrative law r charter analysis The majrity in applies Dre t find that decisin unreasnable because it did nt strike a prprtinate balance between the charter prtectins and statutry bjectives at stake in this case The minrity held that Lyla s freedm f religin was infringed by the ministered decisin, and cnducted an abbreviated analysis under s.1 The majrity als further explained the apprach t a prprtinate analysis under a reasnableness standard f review that was briefly described in Dre It explained that charter value analysis under administrative law requires a preliminary step f identifying whether the decisin limits charter rights fllwed by the prprtinality analysis This analysis invlves cnsidering whether the decisin stakes a prprtinate balance that gives effect, as fully as pssible t the Charter prtectins at stake given the particular statutry mandate Freedm f religin case, discretinary decisin f the Minister f Educatin, scpe f the right is in issue. 4:3 split n std f review/methdlgy f review Majrity: applies Dré Cncurring minrity: applies Charter and s. 1 analysis Minrity (McLachlin CJC): [h]wever ne describes the precise analytic apprach taken, the essential questin is this: did the Minister s decisin limit Lyla s right t freedm f religin prprtinately --- that is, n mre than was reasnably necessary? (at para 114, p. 890). Abella J (Majrity) further directin n methdlgy and prprtinality as reasnableness (p. 890): Step 1: identify whether the decisin limits a Charter right (para 39) Step 2: prprtinality A Dré prprtinality analysis finds analytic harmny with the final stages f the Oakes framewrk used t assess the reasnableness f a limit n a Charter right under s. 1: minimal impairment and balancing. The Dré analysis is als a highly cntextual exercise. As under the minimal impairment stage f the Oakes analysis, under Dré there may be mre than ne prprtinate utcme that prtects Charter values as fully as pssible in light f the applicable statutry bjectives and mandate (at paras 40-41). S. 1: Rights & Freedms are subject nly t such reasnable limits prescribed by law as can be demnstrably justified in a free and demcratic sciety Oakes: pressing & sub. bjective weighed against ratinal cnnectin; min impairment; final balance Cmpare: s 1 & standard f reasnableness Dunsmuir: Inquiry invlves bth the prcess f articulating the reasns and t utcmes. justificatin, transparency and intelligibility within the decisin-making prcess. + a decisin that falls within a range f pssible, acceptable utcmes 207 Trinity Western University v. The Law Sciety f British Clumbia, 2016 BCCA 423 Our purpses fr this case will be t cnsider the applicatin f the Dré analysis mre than the reasning n freedm f religin Cnsistency with Statutry Duties [Para 78-97] The Benchers were cgnizant f the fact that Charter values were implicated in the decisin as t whether TWU shuld be an apprved law faculty decisin required them t cnsider TWU s cncerns fr religius freedm, as well as ppnents cncerns fr equality n the basis f sexual rientatin. Where Charter values are implicated in an administrative decisin, and the decisin might infringe a persn s Charter rights, the administrative decisin-maker is required t balance, r weigh, the

209 ptential Charter infringement against the bjectives f the administrative regime where an administrative tribunal undertakes such a balancing, it is entitled t deference. hwever, that many tribunals have limited cntact with the Charter and may have cnsiderable difficulty interpreting it There is als a real pssibility that a tribunal s preccupatin with its wn statutry regime will lead it t value the statutry bjectives f that regime t highly against Charter values. While Dré requires a curt t grant tribunals a margin f appreciatin in determining whether they have prperly balanced matters, the tribunal s decisin will, in all cases, have t fall within the bunds f reasnableness. Where a tribunal has failed t appreciate the significance f a Charter value in the balancing, its decisin will be fund t be unreasnable In making their Octber 31, 2014 declaratin, the Benchers did nt engage in any explratin f hw the Charter values at issue in this case culd best be prtected in view f the bjectives f the Legal Prfessin Act. They made n decisin at all, instead deferring t the vte f the majrity in the referendum. A tribunal s functin, in ther wrds, is always t make the decisin that it cnsiders crrect. The reasnableness standard is nt ne t be applied by the tribunal, but by a curt n judicial review. In the case befre us, it was up t the Benchers t weigh the statutry bjectives f the Legal Prfessin Act against Charter values, and t arrive at the decisin that, in their view, best prtected Charter values withut sacrificing imprtant statutry bjectives. They culd nt fulfill their statutry duties withut undertaking this balancing prcess. In deciding that either result n the referendum wuld meet the reasnableness standard, and therefre be acceptable, the Benchers were cnflating the rle f the curts with their wn rle. Basically the benchers were saying they wuld take the referendum decisin then decide it was reasnable this is nt their rle In ur view the judge s decisin t quash the Benchers reslutin cannt be reached n the administrative law issues alne. Althugh the decisin f the Benchers is nt entitled t deference, it can be upheld if the Curt is able t find that it represented the nly reasnable balancing f statutry bjectives with Charter value [s they prceed t a substantive charter analysis] The Decisin-Maker s Exercise f Authrity When Charter Rights and Values Are Engaged It is instructive t nte that even in the case f a standard f review calibrated at reasnableness, the range f reasnable utcmes can be exceedingly narrw indeed, effectively amunting t ne crrect answer The balancing exercise that Dré and Lyla call fr in the case befre us can be expressed this way: did the decisin f the Law Sciety nt t apprve TWU s faculty f law interfere with freedm f religin f at least the faculty and students f that institutin n mre than is necessary given the statutry bjectives f the Law Sciety? The Law Sciety Did Nt Balance Charter Rights A number f the pinins the Law Sciety cnsidered are imprtant because they demnstrate that the Law Sciety at and befre its April 2014 meeting was very much alive t the Charter issues presented by the case and the prper legal apprach t the Law Sciety s cnsideratin f a decisin exercising its administrative discretin nt t apprve TWU s law schl. The discussin at the Benchers meeting f April 11, 2014 makes it clear that sme Benchers cnsidered the issue in the cntext f the balancing exercise mandated by Dré (decided the previus mnth) and Lyla (yet t be decided). Others viewed TWU v. BCCT as dispsitive These recitals suggest that what mtivated the reslutin adpted at the Special General Meeting was a cncern that a law schl premised n principles f discriminatin and intlerance wuld nt prmte and imprve the standard f practice by lawyers. N mentin is made f the cncerns with equality f access t TWU s faculty f law nw advanced by the Law Sciety and its allied intervenrs as mre particularly discussed abve. Mre imprtantly, n reference is made t freedm f religin. we cnclude that the Benchers imprperly fettered their discretin by binding themselves t adpt the decisin f the majrity f members n whether nt t apprve. It appears they did s altruistically in the sense f letting demcracy dictate the result, and letting the members have their say. But in s ding, the Benchers abdicated their duty as an administrative 208

210 decisinmaker t prperly balance the bjectives f the Legal Prfessin Act with the Charter rights at stake. CLASS NOTES ON JR Law Sciety fettered discretin by binding themselves t the result f the referendum (para 65, 91) Therefre did nt engage in balancing f Charter values required by Dré (para 85) Therefre n deference wed/crrectness applied Analysis f prprtinality then carried ut fr whether result was reasnable (prprtinal) in any event Balancing f Charter values in decisin t nt accredit was unreasnable. What is the decisin t review? What is the decisin recrd here that the Curt shuld assess fr reasnableness? Why desn t the LSBC s careful cnsideratin f the issue in prir mments f decisin-making cunt? Cntrast Catalyst Paper, Baker even McLean re what is cnsidered as the recrd f reasning n JR What des Dré require in terms f reasns/reasning prcess? Des prprtinality require a higher standard fr reasns (JTI)? SEE: Bld Tribe v Alberta If the Curt applied crrectness, why did it review fr reasnableness? (paras ) Unlike many Charter cases, this case des nt invlve a direct cntest [A direct denial f the right t practice law t evangelical Christians] wuld bviusly infringe at least s. 2 f the Charter and wuld have t be justified under s. 1. (at para 115) Huh???? Why wuld Dre prprtinality analysis apply in that circumstance: a decisin delegated t LSBC by law and nt prescribed by law A right t practice law? My smewhat cnsidered pinin: What was the LSBC thinking?? Decisin n a vilatin f Charter rights by majritarian vte??? Recall Charter rights are t prtect minrities frm the tyranny f the majrity. S nt reasnable. (nte decisin I m analysis here is 26 Sept, nt ultimate decisin. Decisin n hw t decide) But if after 12 mnths, might s. 13(2) [Referendum prcedure in the Act] require this decisin prcess? And if s, is this decisin prcess itself ptentially ill-cnsidered if nt uncnstitutinal itself? 209 Kainaiwa/Bld Tribe v Alberta (Energy), 2017 ABQB 10 FACTS: Basically yu have a band, they gt rights t a parcel f land, and they want the subsurface rights t that land t (frm the gvernment). They apprached the gvernment t get these rights, cnsultatin lasted many years, the minister f energy said Alberta was nt willing t transfer the subsurface rights. REASONING Relevant Legislatin The Minister s authrity t apprve a transfer f subsurface prperty derives frm the Mines and Minerals Act, RSA 2000, c M-17 (the Act ). Under s 9 f the Act, the Minister has the authrity t