Foreword xix Preface xxi Introductory Note xxiii CHAPTER 1 THE ROLE OF APPELLATE TRIBUNALS 1 PART 1 Why Standards of Review? 2 PART 2 Why Review? 5 (a) The Error Correcting Role 5 (b) The Call for Universality 6 (c) The Law-Making Role 8 PART 3 Why Limit Review? 13 (a) The Presumption of Fitness 13 (b) Respect for Ad Hoc Jurisprudence 16 (c) Scarcity of Resources 18 (d) Deference to the Skills of the Original Tribunal 21 PART 4 Reconciliation of Competing Claims: A Sense of Role 24 PART 5 Some Dubious Explanations for Limited Review 29 (a) Lack of Jurisdiction 29 (b) Seeing and Hearing the Witness 32 (c) Floodgates 33 (d) Parallel Justice 34 PART 6 Some Dubious Calls for Expended Review 35 CHAPTER 2 THE STANDARDS 37 PART 1 The Standards 38 (a) The Traditional Five Standards 38 (i) Absolute deference 38 (ii) Unreasonableness 38 (iii) Patent Unreasonableness 39 (iv) Concurrence (Correctness) 39 (v) Fresh Assessment 39 (b) The Correct Standards of Review 40 (i) How many standards? 40 (ii) The key standards 40 (iii) The need for categories 41 vii
PART 2 Interpretative Problems 43 (a) Absolute Deference 43 (b) De Novo Hearings 43 (i) Meaning 43 (ii) Masters of own procedure 44 (c) Concurrence (Correctness) 46 (i) Meaning 46 (ii) Presumption of fitness 47 (d) Demonstrable Unreasonableness 48 (i) Which term to employ? 48 (ii) Meaning 50 (iii) Presumption of fitness and onus on appellant 52 (iv) The need to articulate the test 54 PART 3 Dangerous Formulations of the Unreasonableness Standard 57 (i) Evidence to support? 57 (ii) Substantial evidence to support? 61 (iii) Doubtful error? 62 (iv) U.S. Clearly erroneous test 64 (v) Palpable error? 65 CHAPTER 3 CATEGORIES FOR REVIEW GENERALLY 69 PART 1 Introduction 69 PART 2 Criteria for Standards Choice 71 (a) Introduction: A Sense of Role 71 (b) Presumption of Fitness 72 (c) The Call for Universality and the Exemptions from the Call 73 (d) Balancing the Presumption of Fitness and (e) the Call for Universality 74 An Aside: The Governing Rule or the Standard of Review? 77 (f) Expertise 78 (g) Another Aside: Statutory Limits on Review 81 (h) Scarcity of Resources 82 (i) Conclusion 82 PART 3 The Basic Tests for Selection of the Standards 84 (a) Introduction 84 viii
(b) (c) Considerations that Lead to Review on Concurrence (Correctness) Basis 85 (i) Does the decision of the first tribunal clearly fail to follow an established and unquestioned governing rule? 85 (ii) Aside entirely from the decision on the first tribunal, does the case raise a question about a rule of law that must be stated or revised for the general benefit of society? 85 (iii) Does the decision or process of the first tribunal raise a question about the reputation of the administration of justice? 87 (iv) Are there at least some factors in the case about which, either in terms of relevance or weight, the court should offer guidance? 87 (v) Does the decision have strong precedential character because the matrix of facts present in it is commonplace? 89 Considerations that May Lead to Review Only for Unreasonableness 90 (i) Is this issue one where the call for regard to management of judicial resources, reliance on the presumption of fitness, respect for ad hoc jurisprudence, or deference to the skills of the first tribunal are very strong and the call for universality less strong? 90 (ii) Is the complaint made in a case, or about an issue, where considerations of cost and time alone greatly outweigh the claims of universality? 90 (iii) Does the governing rule require the decision-maker to consider and balance many factors? 91 (iv) Is the decision about a matter that essentially involves the management of the caseload of the first tribunal? 92 (v) Has the Legislature indicated that it would prefer deferential review? 93 ix
CHAPTER 4 STANDARDS OF REVIEW AND ADMINISTRATIVE TRIBUNALS 95 PART 1 Introduction 95 (a) The Reason for This Chapter 95 PART 2 Recent Developments in the Law 98 (a) Judicial Review Generally 98 (b) Prerogative Review 100 (c) Compulsory Arbitration 101 PART 3 The Modern Rules for Judicial Review of Decisions by Administrative Tribunals: The Standards 102 PART 4 The Modern Rules for Judicial Review of Decisions by Administrative Tribunals: The Categories 106 (a) Pragmatic and Functional Analysis 106 (b) Considerations That Lead to Review for Correctness (concurrence) 108 (i) Does the decision of the first tribunal clearly fail to follow an established and unquestioned governing rule? 108 (ii) Aside entirely from the decision on the first tribunal, does the case raise a new question about a rule of law that must be stated or revised for the general benefit of society? 108 (iii) Does the decision or process of the first tribunal raise a question about the reputation of the administration of justice? 111 (iv) Are there at least some factors in the case about which, either in terms of relevance or weight, the court should offer guidance? 112 (v) Does the decision have strong precedential character because the matrix of facts present in it is commonplace? 113 (c) Considerations That May Lead to Review Only for Unreasonableness 113 (i) Is this issue one where the call for regard to management of judicial resources, reliance on the presumption of fitness, respect for ad hoc jurisprudence, or deference to the skills of the first tribunal are very strong and the call for universality less strong? 113 x
(d) (ii) (iii) (iv) (v) (vi) (vii) (A) Privative clauses 114 (B) Expertise 114 (C) Social Role 116 Does the decision or process of the first tribunal raise a question about the reputation of the administration of justice? 118 Are there at least some factors in the case about which, either in terms of relevance or weight, the court should offer guidance? 118 Does the decision have strong precedential character because the matrix of facts present in it is commonplace? 118 Is the complaint made in a case, or about an issue, where considerations of cost or time alone greatly out-weigh the claims of universality? 119 Does the governing rule require the decision-maker to consider and balance many factors? 119 Is the decision about a matter that essentially involves the management of the caseload of the first tribunal? 120 (viii) Has the Legislature indicated that it would prefer deferential review? 120 Privative Clause and the Standard of Review 124 CHAPTER 5 MATTERS OF FACT 133 PART 1 Reception of Evidence 133 PART 2 The Weighing of Evidence 136 (a) The Legal Rules That Guide the Finding of Facts 136 (b) Failure to Consider Evidence 137 PART 3 Fact-Finding 138 (a) General Rule 138 (b) Functional Tests 139 xi
(c) History 139 (d) The Special Advantage Rule 140 (e) Dubious Exceptions: Interpretation of Documents 142 (f) Dubious Exceptions: Expert Testimony 143 (g) Dubious Exceptions: Acquittals 143 (h) Dubious Exceptions: Demeanour and Credibility 143 PART 4 Inferences 147 (a) General Rule 147 (b) History of the Rule 148 PART 5 Social Facts 151 CHAPTER 6 MATTERS OF LAW 155 PART 1 Errors in Application of Governing Rules 155 (a) Simple Application of Settled Rules 156 (b) Complicated Applications of Legal Rules 156 PART 2 Error of Law Generally 157 PART 3 Mixed Fact and Law 163 (a) Sorting Fact-Issues and Law-Issues 163 (b) Characterization of Facts as Matching (or not) a Legal Rule 164 (c) A Modern Re-statement of the Approach to Mixed Fact and Law 168 PART 4 The Appropriate Criteria for Selection of a Standard When a Question of Law Arises 178 (a) Considerations that Lead to Review on Concurrence (Correctness) Basis 178 (i) Does the decision of the first tribunal clearly fail to follow an established and unquestioned governing rule? 178 (ii) Aside entirely from the decision on the first tribunal, does the case raise a question about a rule of law that must be stated or revised for the general benefit of society? 180 (iii) Does the decision or process of the first tribunal raise a question about the reputation of the administration of justice? 182 xii
(b) (iv) Are there at least some factors in the case about which, either in terms of relevance or weight, the court should offer guidance? 184 (v) Does the decision of the first tribunal have a strong precedential character because the precise matrix of facts in the present case are commonplace? 185 Considerations that May Lead to Review Only for Unreasonableness 187 (i) Is this issue one where the call for regard to management of judicial resources, reliance on the presumption of fitness, respect for ad hoc jurisprudence, or deference to the skills of the first tribunal are very strong and the call for universality less strong? 187 (ii) Is the complaint made in a case, or about an issue, where considerations of cost and time alone greatly outweigh the claims of universality? 187 (iii) Does the governing rule require the decision-maker to consider and balance many factors? 188 (A) Explicitly multi-factoral guidelines or governing rules 188 (B) Implicitly multi-factoral general rules 188 (iv) Is the decision about a matter that essentially involves the management of the caseload of the first tribunal? 189 (v) Has the Legislature indicated that it would prefer deferential review? 190 PART 5 Reasons for Decision by First Tribunal 190 (a) Absence of Reasons 190 (b) Remedies 194 (c) The Missed-Issue Rule 197 PART 6 Appeals Limited to Matters of Law Alone 198 (a) Generally 198 (b) Does the Law Alone Rule Mandate That all Errors be Reviewed on the Correctness (Concurrence) Standard? 200 xiii
(c) The Special Status of a Jury in Our Society 201 (d) Acquittals by a Judge Sitting Alone 205 CHAPTER 7 GUIDELINES 207 PART 1 Modern Re-statement of the Rule 208 (a) What is a Guidelines Case? 208 (b) Guidelines 211 (c) Categories for Review 213 PART 2 Problems with the Traditional Discretion Category 215 (a) Confusion of Discretion With Power 215 (b) History of the Discretion Rule 217 (c) Problems with the Traditional Formula 223 (d) The Rise and Fall of the Attack on Fettering 225 PART 3 Specific Cases 229 (a) Quantum of Damages for Non-Pecuniary Loss 229 (b) Custody of Children 233 (c) Family Support 235 (d) Transfer Orders 237 (e) Interlocutory Orders 238 (i) Generally 238 (ii) Case management 239 (iii) Appeals from masters 240 (f) Sentencing of Crime 243 (i) In general 243 (ii) History of the rule about review of sentencing 247 CHAPTER 8 HARMLESS ERROR 251 PART 1 Introduction 251 (a) Summary of the Rules 251 (i) Untainted decision rule 251 (ii) Inevitable result rule 252 (iii) Fair appearances rule 252 (iv) Nullity rule 252 (b) The Purpose of the Rules 252 (i) Prejudice to the appellant 253 (ii) Pointless re-hearings 254 xiv
(iii) Appearance of justice 254 (iv) Doctrinal purity 254 (c) Sources of the Rules 255 PART 2 The Nullity Rule 257 (a) The Rule 257 (b) Commentary 257 (c) Harmless Administrative Decisions 259 (d) The Idea of Gaining Jurisdiction Through Lost Jurisdiction 261 PART 3 The Untainted Decision Rule 262 (a) The Rule 262 (b) Civil Cases 262 (c) Criminal Cases 264 (i) Conviction appeals 264 (d) (ii) Appeals from acquittals 265 The Onus of Proof That the Error Failed to Affect the Jury 267 (e) This Jury or a Hypothetical Jury? 269 (i) In general 269 (ii) The constructive murder cases 272 PART 4 The Inevitable Result Rule 274 (a) Statement of the Rule 274 (b) Commentary 274 (c) The Strength of the Case 275 (d) History of the Rule 278 (e) The Inevitable Verdict Rule and the Right to Trial by Jury 281 PART 5 Fair Appearances Rule 285 (a) The Rule 285 (b) Specific Applications of the Rule 290 (i) Improper remarks by trial judge 290 (ii) Accused not present during trial 292 (iii) Admission of prejudicial evidence 293 (iv) Denial of right of audience 294 (v) Apparent bias 294 (vi) Counsel s address 294 (vii) Directed verdicts 295 (viii) In camera hearings 296 xv
(ix) Failure to comply with prescribed procedure 296 (x) Trial without language comprehension 297 PART 6 Specific Applications of the Harmlessness Rules 297 (a) Failure to Admit Relevant Evidence 297 (b) Admission of Irrelevant Evidence 299 (c) Misdirection or Misstatement 301 CHAPTER 9 CONSENSUAL ARBITRATION 305 PART 1 What is Consensual Arbitration 305 PART 2 Domestic Consensual Arbitration 306 (a) Introduction 306 (b) Privative Clauses 307 (c) Uniform Arbitration Act 308 (d) Standards of Review in Domestic Consensual Arbitration 312 (e) Grievance Dispute 315 PART 3 International Commercial Arbitration 316 (i) Statutes 316 (ii) Standards of review and enforcement of Canadian international commercial arbitral awards 318 CHAPTER 10 RELIEF 321 PART 1 Choice of Relief 321 PART 2 A New Trial 322 (a) Fresh Assessment or New Trial? 322 (b) New Trial 323 PART 3 A Fresh Assessment 324 (a) Powers 324 (i) Limits: Prerogative Relief 325 (ii) Limits: Criminal Jury Trials 326 (iii) Limits: Appeals from Convictions 326 (b) New Conclusion Based on Existing Findings of Fact 327 (c) Rules About Fresh Assessment 327 PART 4 Fresh Evidence on Appeal 330 xvi
PART 5 Mootness 333 (a) The Rule 333 (b) Election 334 CHAPTER 11 SECOND LEVEL REVIEW 337 PART 1 Generally 337 PART 2 Appeals to the Supreme Court of Canada 340 (a) Law-Settling Cases 340 (b) Review the Choice of Standard of Review 340 (c) Review of the Application of the Unreasonableness Standard 341 (d) Standard of Review on Second-Level Review for Unreasonableness 342 (e) Concurrence Between Original Decision and First-Level Review 345 CHAPTER 12 LEAVE TO APPEAL 347 PART 1 Leave to Appeal and Standards of Review 347 PART 2 Leave Rules 348 PART 3 Burden of Persuasion on a Leave Application 350 PART 4 General Public Importance 351 PART 5 At Large or on Specified Issues 352 BIOGRAPHIES Roger P. Kerans BIO-1 Kim Melissa Willey BIO-6 BOOKS BKS-1 ARTICLES ART-1 STATUTES ST-1 CASES TOC-1 INDEX IND-1 xvii