Canadian Administrative Law

June – July, 2014

 Osgoode NCA Exam Prep Course
Canadian Administrative Law
June – July, 2014

TABLE OF CONTENTS
Tab A Faculty List and Biographies

Tab B Canadian Administrative Law Materials

1. Syllabus

2. PowerPoint slides

3. Checklist for exam

4. Sample scenarios

Tab C NCA Practice Exam

Tab D Notes
 Osgoode NCA Exam Prep Course
Canadian Administrative Law
June – July, 2014

FACULTY LIST
Faculty
Elizabeth Nastasi Deborah Pressman
Senior Arbitrator Arbitrator
Financial Services Commission of Ontario Financial Services Commission of Ontario
5160 Yonge Street, PO Box 85 5160 Yonge Street, PO Box 85
Toronto ON M5V 2L4 Toronto ON M5V 2L4
 Osgoode NCA Exam Prep Course
Canadian Administrative Law
June – July, 2014

BIOGRAPHIES

Instructors

Elizabeth Nastasi, BA, LLB is a graduate of Osgoode Hall Law School and was called to the
Ontario Bar in 1996. She has worked in Toronto in the area of family and insurance law as well as a
Policy Advisor with the Ministry of Housing. From 1997 to 2000, Ms. Nastasi worked overseas as an
Immigration Consultant. She has taught courses as part of a paralegal certificate program in the
area of immigration, civil litigation, family and employment law. She has extensive training and
experience in the area of alternative dispute resolution and has mediated a wide range of disputes.
Ms. Nastasi was a Mediator with the Financial Services Commission of Ontario (FSCO) from 2002 to
2004 mediating motor vehicle accident cases and from 2004 to 2006. She has worked as a Dispute
Resolution Educator with York University and as a volunteer mediator in the criminal court as part of
an Adult Justice Committee diversion program. Ms. Nastasi was a Mediator with the Ontario Human
Rights Commission as well as Legal Counsel with the Human Rights Tribunal of Ontario. Ms.
Nastasi has been an Arbitrator and the Senior Arbitrator with FSCO from 2006 to 2013. Ms. Nastasi
is currently Legal Counsel at FSCO.

Deborah Pressman is an arbitrator with the Financial Services Commission of Ontario. She is
currently a faculty member in the continuing education department at George Brown College.
Ms. Pressman completed her undergraduate degree in political science at York University. She
is a graduate of Osgoode Hall Law School and was called to the Bar in 2002. After working in
private practice, she joined the Ontario Public Service in 2004, where she has held the positions
of mediator, senior policy analyst and, most recently, arbitrator. She has extensive experience in
conflict management. In 2005, Ms. Pressman completed the LLM program at Osgoode Hall Law
School, specializing in Alternative Dispute Resolution (ADR). She has instructed, trained,
judged and coached both students and professionals.
Canadian Administrative
Law Materials
Canadian Administrative
Law Syllabus
 Federation of Law Societies of Canada
National Committee on Accreditation

Syllabus

Administrative Law

(Revised February 2014)

Candidates are advised that the syllabus may be updated from

time-to-time without prior notice.

Candidates are responsible for obtaining the

most current syllabus available.

World Exchange Plaza 1810 - 45 O'Connor Street Ottawa Ontario K1P 1A4
Tel: 613.236.1700 Fax: 613.236.7233 www.flsc.ca
 Federation of Law Societies of Canada
National Committee on Accreditation

Administrative Law
Nature of the course

Administrative Law is the body of law regulating the ways in which government operates. It is about
the rules and limits that apply to not only the operations of the Crown, Cabinets, Ministers,
government departments, and municipal corporations but also the various administrative tribunals
and agencies deployed by governments for the carrying out of governmental functions of all kinds. It
is concerned with the procedures by which all these various instruments of government operate, the
jurisdictional and substantive limits on their mandates, and the remedial structures that exist to
ensure that decision-makers of various kinds act in accordance with the rule of law. As well,
throughout the materials, candidates are encouraged to reflect upon the divide between public law
and private law and, in particular, the circumstances under which governmental authorities of various
kinds or in various capacities are subject not to the special regime of Administrative Law principles
and remedies but to the private law rules of contract, tort, restitution and the like.

Some regard Administrative Law as simply a subset of Constitutional Law and, to the extent that, for
example, the Canadian Charter of Rights and Freedoms and other constitutional and other quasi-
constitutional enactments (such as the Canadian Bill of Rights) serve to place limits or constraints
on the way in which public decision-makers act, there is overlap between this subject and that in
Constitutional Law. However, Administrative Law is not about the policing of the divide between
federal and provincial jurisdiction enshrined in the Constitution Act, 1867 and the other statutes that
constitute the Canadian constitution. Nor does it concern itself in detail with the constitutional
incidents of the Crown, Parliament and the various legislative assemblies, or the executive branch.

Rather the primary questions considered in this course are:

1. The circumstances under which governmental decision-makers are subject to an obligation of

procedural fairness to those affected by their decisions, and, where applicable, the content of that
obligation.

2. The extent to which the substantive decisions of administrative decision-makers are subject to merits
scrutiny by the courts on the basis of concepts such such as error of law, error of fact, and abuse of
discretion, and if so, what is the standard of review that reviewing courts bring to bear.

3. The remedial framework within which the superior courts, both federally and provincially, exercise
their review powers.

Some of you will bring to this subject some knowledge of Administrative Law acquired during your
legal studies in other jurisdictions. Sometimes, that knowledge will be useful even if the applicable
case law is different. However, be very cautious in the deployment of knowledge gained elsewhere.
There are some very distinctive aspects of Canadian public law that do not find analogues or exact
parallels in other common law or British Commonwealth jurisdictions. In answering the examination in
this course, you act at your peril if you automatically start applying the principles and the case law
from the jurisdiction of your initial legal training.

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Casebooks

The assigned material on which candidates will be examined are;

1. Van Harten, Heckman, and Mullan (referred to as CB), Administrative Law: Cases, Text &
Materials (Toronto: Emond Montgomery Publications Ltd., 6th ed., 2010), and

2. Colleen Flood and Lorne Sossin (referred to as S & F), Administrative Law in Context
(Toronto, Emond Montgomery, 2013, 2d Ed.).
Detailed page assignments are outlined below in the study guide. These page assignments should
be taken seriously. Do not assume that you will be able to pass this subject by simply reading one of
the supplementary texts from the list below or even notes based on or provided by various courses
and websites that offer assistance in preparing for NCA exams.
Knowledge of the assigned readings is essential.

Objectives

Candidates should master these materials and the principles of Administrative Law embodied in
the various segments of the course to the extent necessary to enable them to answer problem-type
questions on a three-hour, open book final examination. Samples are available online at the NCA
website.

As well as knowledge of the principles and rules of Canadian Administrative Law, candidates are
expected to display an aptitude for the application of that knowledge in the context of specific fact
situations. That will involve an ability to analyse and distill relatively complex facts, to relate the law as
identified to the salient facts, and to reason towards a conclusion in the form of advice to a client or
the likely judgment of a court confronted by such a problem. Since administrative law usually involves
powers bestowed on administrative decision-makers by statute, students will often be required to read
and understand statutory provisions provided on the exam that empower administrative actors.

Supplementary Texts

Candidates wishing to consult texts for further clarification and elaboration of the various principles
of Administrative Law are directed to the following. Please be attentive, however, to the fact that
Administrative Law changes often with new Supreme Court cases. These publications may be out of
date in several instances on a number of subject matter issues. Your principal objective, therefore,
should be to learn from the assigned readings.

Sara Blake, Administrative Law in Canada (Toronto: LexisNexis-Butterworths, 5th ed., 2011).

David J.M. Brown and John M. Evans, Judicial Review of Administrative Action in
Canada (a looseleaf service).

David Phillip Jones and Anne S. de Villars, Principles of Administrative Law (Toronto: Carswell, 5th
ed., Student, 2009).

David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001).

Guy Régimbald, Canadian Administrative Law (Toronto: LexisNexis Canada, 2008)

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Study Guide

Subject Matter CB and S & F Readings

(begin at the first heading
on the first assigned page
and end at the first heading
of the last assigned page, if
any, unless otherwise
instructed)

1. Setting the Stage CB, Chapter 1;

S & F Chapter 1
One of the most important things to understand in studying
administrative law is the “big picture”. A failure to do so may result in
candidates becoming lost in extraneous details.

The critical idea at the core of that administrative law is this: it is the
body of law that governs how people exercising power pursuant to a
delegation of power in a statute (or occasionally the royal prerogative)
go about their business. In most cases, the people who have this form
of power (again, typically given to them by a statute) are members of
the executive branch of government, although often at some arm!s
length from it. In our system, based on the rule of law, we want to make
sure that people with this power exercise it properly. Almost all of
administrative law is about deciding what we mean by “properly”.

CB chapter 1 and S&F chapter 1 provide an excellent overview of

why administrative law matters, and also the core elements of
administrative law doctrine. In this syllabus, we follow the approach
described in the materials in dividing the discipline into three parts:

• procedural fairness (or more generally, procedural expectations

that administrative decision-makers must meet);

• substantive constraints (or more generally the sorts of substantive

errors administrative decision-makers must avoid); and

• challenging administrative decisions and remedies on judicial

review (or more generally, the relief available to a person who wishes
to challenge an administrative decision and the procedure to be
followed in seeking this relief).

(One word of warning: CB, p.26 outlines a high level description of

grounds of judicial review in administrative law. It is, of course, correct,
but it is very much at the highest level – the actual way in which
grounds of review tend to be applied is a little different. For instance,
courts speak of procedural fairness and, in the area of substantive
review, they talk about errors of law, fact and discretion (and now,
once again, occasionally jurisdiction). It is these concepts that are
important in putting administrative law into practice.)

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Procedural Fairness Materials S & F, chapters 5, 6, 7, 8

and 12
(portion on procedural
aspect of fundmental
justice)

2. Sources of Procedural Obligations CB 77-85; 278-285

We begin with procedural obligations that adminisrative decision-
makers must observe in exercising their powers. The starting point is
understanding where these come from. As the assigned readings
suggest, the answer is: from several places. The assigned readings talk
about enabling legislation, delegated legislation, guidelines (although for
reasons discussed in the material below, be cautious with these), and
the common law. We also include a few pages discussing “general
statutes about procedure” – that is, special provincial-level statutes
imposing procedural rules on the provincial administrative decision-
makers to which they apply.

To this list, you must also add the Charter of Rights and Freedoms
(section 7 is really the only provision that matters for our purposes) and
(for federal administrative decision-makers), the Canadian Bill of Rights.
More on those later.

3. Procedural Obligation Triggers CB 85-105; 109-113;

(Knight “Three-Prong” and the Concept of “Legitimate 132-156; 157-176.
Expectation”)

Now that you understand that procedural obligations come from a

number of different sources, you need to understand which of these
procedural rules applies where. We call this the “trigger” (or threshold) –
where is a given procedural obligation triggered? Where procedural
rules come from legislation (typically, but not always, the legislation that
gives the decision-maker his or her powers in the first place), the answer
to the trigger question is in the legislation itself. So too with the “general
statutes about procedure” – they contain their own triggers. So you need
to be careful to read that legislation if it applies to your decision-maker.
(And a word of warning: make sure the statute does apply to your
decision-maker. Ask: could a provincial general procedural statute ever
apply to a federal administrative decision-maker?)

We can make more general observations about other sources of

procedural obligations. The readings focus in particular on the trigger for
common law procedural fairness. Basically, there are two triggers: what
we can call the Knight v. Indian Head (three-prong) trigger and a concept
known as legitimate expectation. Where the requirements of these
triggers are met, then procedural fairness is owed by the administrative
decision-maker. What that means in practice is a more complex
discussion involving consideration of the content of the procedural
fairness. More on that below.
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For our purposes here, make sure you understand when common law
procedural fairness is triggered. And be sure you focus your attention on
the modern rules – there is history in these readings, which should help
clarify where the modern rule comes from. But history is history, and on
the exam you need to understand the rule that applies now.

Pay attention to some of the exceptions and constraints on the triggers as

well. So, for legitimate expectation, note the courts! views on procedural
versus substantive promises. For the Knight trigger, the readings talk
about final versus preliminary decisions (and the related issue of
investigations and recommendations). Note also exceptions to this
exception.

We turn to other exceptions to the triggering of procedural fairness in the

next section.

4. Procedural Obligation Triggers CB 113-132; 156-157

(Legislative Decisions & Emergencies)

Common law procedural fairness rules may also fail to be triggered where
there are emergencies, and also where a decision is said to be of a
“legislative” nature. Be wary of the latter; it is a very amibguous concept. In
its clearest form, it means no procedural fairness where an administrative
decision-maker is introducing, e.g., a regulation (that is, a form of
delegated legislaton). But a “legislative decision” means more than this –
boiled down to its essence, it can be a decision that is sufficiently general,
and not particular to or focused on a reasonably narrow subset of persons.
Exactly what this means you need to contemplate in looking at the
readings. And you need to appreciate that the general rule – no procedural
fairness where decision is legislative in nature – is itself subject to
exceptions.

5. Procedural Obligation Triggers (Charter & Bill of Rights) CB 178-251.

Also read Canada (Attorney
Now we turn to the triggers for another source of procedural obligations:
General) v. Mavi, 2011 SCC
Charter s.7 and Bill of Rights. A first observation on the Charter. This is
30 and Agraira v. Canada
administrative law, not constitutional or criminal law. It will almost always
(Public Safety and
be wrong in an administrative law exam to discuss Charter rights other
Emergency Preparedness),
than section 7 – you are not being examined on s.11 rights or s.2 or s.15.
2013 SCC 36. These cases
(Section 11(d) for instance almost never applies to administrative bodies,
include discussions of the
unless the criteria for its application are met by, for example, the existence
“standard of review” for
of contempt powers).
substantive review purposes.
But with section 7, the situation is different because this provision does Those parts aren!t relevant
impose the requirement to observe “fundamental justice” – a concept with for this section. But they also
procedural content – on at least some administrative decision-makers. have useful discussion on
Which ones? Well, those making decisions that go to life, liberty or procedural fairness. For the
security of the person. Do not make the mistake of assuming that all purposes of this section,
focus on this procedural
6 fairness aspect.
 Federation of Law Societies of Canada
National Committee on Accreditation

(or even much) administrative decision-making relates to these

interests. But some of it does and you need to understand how and
where this trigger works.

The Canadian Bill of Rights is similar in many respects, but not all by any
measure. Note carefully to whom it applies. Think about whether you ever
want to say that a decision-maker exercising power under a provincial
statute is subject to the Bill. Also look at the triggers for sections 1(a) and
2(e) and note the extent to which they are the same and differ from
Charter s.7. Above all, recognize that these two provisions have their own
triggers that have to be satisfied before they apply at all.

6. Content of Procedural Obligations (Right to be Heard) CB 37-53 (first half of

the Baker case dealing
We turn now to this question: if procedural obligations are triggered, what with procedural
does the decision-maker have to do? Or more concretely, what is the fairness); 255-258; 274-
content of these procedural obligations? 278; 285-303; 308-406;
411-421; 425-440.
If your procedural obligation comes from a statute – the enabling act or one
of the special legislated procedural codes discussed at CB 77-85, the
answer to this question is: “whatever the statute says is the content is the
content”. (However, there may be occasions in which you will have to
determine whether the statute is a “complete code” or leaves room for
common law supplementation.)

Life is more complex if your trigger is the common law, Charter or Bill of
Rights. While there are some differences, generally speaking, the content
where these sources apply boils down to two broad classes of procedural
rules: a right to be heard and a right to an unbiased decision-maker.

Within these two classes, there are many details, and you still need to
understand “what does it mean in practice to have a right to be heard
and what does it mean in practice to have a right to an unbiased
decision-maker”.

The basic issue is this: the precise content of procedural rules coming from
the common law, Charter or Bill of Rights varies from case to case
according to the circumstances. Certainly with respect to the right to be
heard, you must start with the Baker considerations: Baker gives you a
(non-exclusive) list of considerations that tell you at least something about
content. Specifically, the Baker test suggests whether the content will be
robust or not. (It actually tells you a little bit more if your trigger is legitimate
expecations: with legitimate expectations, the content of the procedural
obligation is generally what was promised in the procedural promise that
gave rise to the legitimate expectation in the first place. If the promise was
substantive, you will not be able to enforce it directly, but at the very least,
it may lead to enhanced or more procedural fairness.)

Of course, one can!t stop at an outcome that just says “robust or lots of

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procedural fairness, or not”. That!s not enough. One has to unpack that
concept and focus on specific procedural entitlements: how much notice;
what sort of hearing; how much disclosure, etc., etc.. So the readings
review a series of procedural entitlements and propose some lessons on
when these particular procedural entitlements might exist and to what
degree. Be attentive to this jurisprudence.

A word of warning: when it comes to an examination, you do need to

explore which procedural entitlements are owed and whether they have
been met, but if you pay no heed to the sorts of circumstances that give
rise to these specific entitlements, you may end up with an implausible
laundry list of procedural rules that you say should apply when they really
don!t. An uncritical laundry list is not satisfactory analysis and does not
generate more marks.

7. Content of Procedural Obligations CB 441-556

(Unbiased Decision-maker)

The second broad class of procedural obligations associated with the

common law, Charter s.7 and the Bill of Rights is the right to an
unbiased decision maker.

Here the material deals with bias stemming from individual conduct
(attitudinal bias or prejudgment; pecuniary interests; past conduct etc.).
Here too there are tests for exactly what rule barring bias applies to a given
administrative decision-maker. There is not just one universal standard,
especially when it comes to alleged prejudgment or attitudinal bias. These
readings will help you understand what the tests are and where they apply.

The materials also deal with “independence” or institutional bias. A word of

warning: do not rush to the assumption that independence rules flow from
all instances where procedural entitlements might be owed. It would be
wrong, for example, to urge that where a statute creates an administrative
regime that you think is insufficiently independent, common law procedural
fairness can be used to attack this arrangement. Be attentive to the
discussion at 547 and 548. The common law cannot prevail over a statute.
And so, your independence argument would have to be based on a s.7
Charter or Bill of Rights source, assuming these are even triggered.

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8. Content of Procedural Obligations CB 557-603; 607-610;

(Issues arising from institutional decision-making) 617-643

In this part, we deal with an area that has elements of both the right to be
heard and the right to an unbiased decision-maker: institutional decision-
making. You need to understand the concept of subdelegation. The
delegatus non potest delegare concept sounds like a pretty potent bar on
an administrative decision-maker sub-delegating powers to another actor,
but there are so many circumstances where sub-delegation is permissible
that, really, sub-delegation tends to be important only when certain
functions are sub-delegated that offend procedural rules. The concept of
“he or she who hears” is an example, tied to the right to be heard. This is
an issue that becomes complicated when large, multi-member boards are
asked to make decisions that are consistent while at the same time they sit
to hear similar cases, but in panels with less than full membership.

Another issue for these big boards, when they try to make consistent
decisions, is when and where bias concepts are offended.

Yet another issue raised by these materials is if these big boards can use
guidelines to try to standardize decisions. If they do, do they wrongly
“fetter their discretion”? (But note that fettering of discretion is a
substantive review issue, and so is really governed by the sorts of
considerations discussed in the next section.)

Substantive Review Materials S & F, chapters 9, 10 and

11

9. Backdrop to the Standard of Review Analysis CB 673-677; 698-700;

706-719; 804-817 (up until
We shift to the second major issue area in administrative law: review on discussion of Border)
“substantive” grounds. Basically, substantive errors are errors of fact, law
or discretion, although these are sometimes labelled in different ways.
(You will also see reference to errors of jurisdiction, although this has
meant different things at different times. Now, a “true error of jurisdiction”
is something you need to consider post-Dunsmuir. Dunsmuir is discussed
below.)

In this part, you!ll soon learn that simply looking at a decision and saying
that it reflects an error of fact (a misapprehension of the facts), of discretion
(a wrong choice or outcome) or of law (a misconstrual of the law) is not
enough. That is because substantive errors are all subject to what is
known as the “standard of review”, a very difficult and complex area of
administrative law.

Notice that we do not mention standard of review in our discussion of

procedural entitlements. That is because procedural fairness does not
require this “standard of review analysis” – it is always assessed on a

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“correctness” standard, with any question of deference left to tests such as

that set out in Baker. So please do not confuse the approach you apply for
“substantive review”, using a standard of review test, with that which you
apply for “procedural review”, where you do not employ this same test.

In these background readings, you are introduced to the concept of a

privative clause. Once you understand it – and the courts! efforts to get
around such clauses – you!ll understand at least part of the initial
impetus for standard of review analyses. Then, there is some history
looking at failed precursors to the standard of review analysis.

10. Evolution of the Standard of Review Analysis CB 723-737; 768-776;

821-831; 53-62 (second half
In this section, we build on the history lesson and have you read some of Baker dealing with abuse
more history, examining some of the key cases developing some of the of discretion); 954-963;
concepts that still remain important in modern law – not least the 971-993
application of the “pragmatic and functional” test to errors of law and
ultimately discretion. But this is still history. You!re not at the current
law yet.

11. The Current Test CB 679-696 (please also

read the missing extract
These are the readings on substantive review that bring you up to from Dunsmuir, placed at
speed. Dunsmuir is your focus. Understand it. Understand how it creates p. 847-48); 783-786; 863-
two standards of review (reasonableness and correctness), and what 869; 879-885; 799-804;
each means. Understand how it changes prior tests used to decide 834-838; 848 (picking
which standard of review should be applied. up from end of
Dunsmuir extract)-861.
Consider how Dunsmuir has been interpreted by other courts and in
other cases. No, it hasn!t been construed perfectly consistently and there More recent standard of
are elements of post-Dunsmuir cases (like Khosa) that seem to go back review cases: Smith v.
to a “pragmatic and functional” test. But consider also the recent cases of Alliance Pipeline Ltd., 2011
Smith, Nor-Man, Newfoundland Nurses and McLean and what they seem SCC 7, headnote and
to suggest about Dunsmuir’s meaning. Those cases propose a pretty paras. 22-58; Nor-Man
simple standard of review test: look at the use of “default” assumptions Regional Health Authority
about standard of review driven by the nature of the question before the Inc. v. Manitoba
court. Note the only secondary role of the “pragmatic and functional” test Association of Health Care
variables. In modern law, it would be incorrect to rely strictly on these Professionals, 2011 SCC
variables and pay no heed first to the “defaults”. 59; Newfoundland and
Labrador Nurses' Union v.
Also pay attention to a new wrinkle introduced by the SCC in Doré. Doré Newfoundland and
looks at what standard of review is applied to an exercise of discretion Labrador (Treasury Board),
by an administrative decision maker who is considering a Charter right in 2011 SCC 62; Agraira v.
making their discretionary decision. Short answer: “reasonableness”. Canada (Public Safety and
Emergency Preparedness),
Once you have determined the appropriate standard of review (correctness 2013 SCC 36
or unreasonableness), you may also be required to apply that standard to
a substantive ruling or decision. For this, you should be familiar with the (focusing for this section on
the substantive review and
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standards and tests that the SCC has identified for conducting this exercise standard of review
and be able to deploy them appropriately. discussions); McLean v.
British Columbia (Securities
Commission), 2013 SCC
67
Cases that consider the
standard of review where
constitutional issues arise
in the exercise of
discretion: Doré v. Barreau
du Québec, 2012 SCC 12;
Divito v. Canada (Minister
of Public Safety and
Emergency Preparedness),
2013 SCC 47.

Challenging Administrative Decisions

12. Venue and Basic Procedure for Judicial Review S&F, ch. 15; CB
1087-1132; 1039-1055;
Now that you understand the law, it is time to understand how one goes
about challenging an administrative decision. Canada (Attorney General)
v. Downtown Eastside Sex
In some cases, there may be what is known as a “statutory right of appeal” Workers United Against
or “administrative appeal” – there may be a statute out there (often the Violence Society, 2012
enabling statute) that allows someone to appeal the decision of the SCC 45 (a Charter case
decision-maker, sometimes to a court and sometimes to another
whose holding on public
administrative decision-maker. If there is such a statutory right to appeal,
interest standing is equally
one generally must “exhaust” it before turning to judicial review, for reasons
applicable in administrative
that are part of readings later on. The rules governing these statutory
law).
appeals will be governed by the statute itself.

Judicial review is different – do not confuse the two. Judicial review is part
of the inherent powers of superior courts to review the exercise of powers
by executive branch officials. Today, this form of relief is generally codified
or provided for in primary legislation or Rules of Court. This section
concentrates on one of the issues associated with judicial review: standing,
or the question of who gets to bring a judicial review application. It also
deals with venue: which court one goes to.

13. Remedies S&F, ch. 3, CB 1055-1076,

1141-1205; 1207-1254;
This last part looks at the relief that can be provided on judicial review and
also through separate and different legal proceedings. It focuses on: the Canada (Attorney General)
sorts of remedies available on judicial review; the fact that the award of v. TeleZone Inc., 2010
remedies on judicial review is discretionary and may be denied on some of SCC 62; Vancouver (City)
the grounds discussed in the materials; and, the fact that there are civil v. Ward, 2010 SCC 27.
remedies that may overlap with the sorts of errors that give rise to judicial
review, but that these are governed by their own rules and procedures.

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Canada Law Books Tel: (416) 609-3800 or 1-800-387-5164 (Canada & U.S.)
240 Edward St. Email: [email protected]
Toronto, ON L4G 3S9 URL: http://www.carswell.com/

Access to Quicklaw
(Internet service of Lexis Nexis)

Please contact the Lexis Nexis Customer Service Department at: [email protected] or call 1-800-387-
0899 for a free account once you have paid your examination registration fees. You must provide your NCA
File Number which will be used as a student number. You will be able to get an immediate response to
requests evenings and on weekends. Customer Service also offers immediate research and/or technical
assistance.

Internet Sites for Provincial Legislation

This is a listing for all the provinces www.canlii.org
and is highly recommended

Ontario: http://www.attorneygeneral.jus.gov.on.ca/english/legis/
British Columbia (Queen’s Printer): http://www.bclaws.ca/
Alberta (Queen’s Printer): http://www.qp.alberta.ca/

Supreme Court Judgments

http://scc.lexum.org/en/index.html

12
Canadian Administrative
Law PowerPoint Slides
 CANADIAN
ADMINISTRATIVE
LAW
OSGOODE NCA EXAM PREP COURSE
SUMMER 2014

LIZ NASTASI & DEBORAH PRESSMAN

YOUR OSGOODE PREP COURSE FOR ADMIN LAW

 Checklist as a road map for your exam answer

• Practice with sample questions/scenarios

• Important cases

• Readings

• Power point materials – overview

1
 OVERVIEW
1. The big picture
• What is Administrative Law?
• The courts’ power to review

2. Challenging a decision
• Grounds –procedural and substantive
• Procedure – how and where: internal (tribunal) or external (court)
• Discretion to denying the challenge: standing, prematurity, etc.

3. Procedural fairness
• Fairness: sources, thresholds, limitations
• Content Issues : the right to be heard, the right to an unbiased ADM

4. Substantive review
• Deference and the standard of review
• The history & modern admin law - Dunsmuir
• Post Dunsmuir- the current approach & the Charter
• Applying the standard to the decision & Reasons

5. Remedies available: JR remedies and private remedies

6. The Federal Courts

SOME IMPORTANT CASES

PROCEDURAL FAIRNESS SUBSTANTIVE REVIEW

Baker Dunsmuir
Nicholson Khosa (contextual approach)
Pushpanathan
Knight
Cupe
Singh
Bibeault
Mavi
Pezim
Suresh
Southam
Bell Canada
Smith
Nor-Man
Newfoundland Nurses
McLean

Right to Discretion to Deny JR Remedies Charter

Review
Crevier Standing: Private: Conway
Finlay and Canadian Council of Telezone Martin
Churches, Sierra Club of Canada, Cooper
Downtown Eastside Sex Workers Charter: Dore
Vancouver v. Ward
2
 THE BIG PICTURE:

• What is admin law?

• The courts’ power to review admin action/decision

1. Original jurisdiction
2. Right of appeal, and
3. Courts’ inherent judicial review jurisdiction (most important for our purposes)

THE BIG PICTURE:

WHAT IS ADMIN LAW?

• Administrative law is the body of law that addresses the actions and operations of governments
and governmental agencies.
• It concerns the manner in which courts can review the decisions of administrative decision-
makers (ADMs) such as a board, tribunal, commission, agency or minister.
• The body of law is concerned primarily with issues of substantive review (the determination and
application of a standard of review) and with issues of procedural fairness (the enforcement of participatory rights).
• Administrative law concerns the statutes and rules of government operations and how the
Courts ensure that ADMs observe the limits on the authority.

3
 THE BIG PICTURE:
WHAT IS ADMIN LAW?

• Institutions involved in administrative decision-making include:

• Legislatures
• Cabinet and Ministers
• Crown corporations
• Municipalities
• Independent administrative agencies, boards, commissions and tribunals

• Administrative law concerns the “supervision” by courts of some decision making.

THE BIG PICTURE:

WHAT IS ADMIN LAW?
• Our focus is on independent administrative agencies, boards, commissions and tribunals
because they play an increasingly important role in our society.
• They regulate many aspects of our life, from beginning to end. For example:
• Hospital and medical boards regulate the methods and practice of doctors
• Boards regulate the licensing and the operation of morticians who are concerned with our
mortal remains
• Marketing boards regulate the farm products we eat
• Transport boards regulate the means and flow of our travel
• Energy boards control the price and distribution of the forms of energy we use
• Planning boards and city councils regulate the location and types of buildings in which we
live and work.

4
 THE BIG PICTURE:
WHAT IS ADMIN LAW?

• Administrative boards and tribunals and ministers and departmental officials, have no inherent
power to make decisions that affect people’s lives but for the statute (or royal prerogative) that empowers them to do
so.
• Thus the role of the court in administrative law is to make sure, at a minimum, that decision-
makers do not step outside the boundaries of what they are legally empowered to do.
 Checklist - enabling legislation

• The tension between the appropriate role for governments, administrative agencies, and courts
—and which set of decision-makers are accountable to others—is still a strongly contested area in administrative
law.

THE BIG PICTURE:

WHAT IS ADMIN LAW?

• There are shifting views on the appropriateness of roles (governments, administrative agencies,
and courts) depending on the nature of the case in question.
• For example:
• Some argue for a much greater role for administrative action when it comes to progressive
distribution of benefits in a welfare state or the resolution of labour disputes.
• Others are less comfortable with administrative action that seeks to limit access to the
courts for vulnerable individuals—for example, immigrants and refugees.

• Administrative law is the body of law related to overseeing administrative action and decision
making and examining
HOW and WHY the court will decide to intervene

5
 THE BIG PICTURE:
The primary 3 questions considered in this course are:

1. The circumstances under which governmental decision-makers are subject to an obligation of procedural
fairness to those affected by their decisions, and, where applicable, the content of that obligation.

• Is this an issue courts should review and, if so, did the administrative decision-maker use the proper procedures in
reaching a decision?

2. The extent to which the substantive decisions of administrative decision-makers are subject to merits scrutiny
by the courts on the basis of concepts such such as error of law, error of fact, and abuse of discretion, and if so, what is the standard of
review that reviewing courts bring to bear.

• Regarding the decision itself, did the administrative decision maker make an error of the kind or magnitude that the court
is willing to get involved in?

3. The remedial framework within which the superior courts, both federally and provincially, exercise their review
powers.

• If there are procedural or substantive defects in the decision, should the court intervene and, if so, how?
• What remedies are available?

THE BIG PICTURE:

THE COURTS POWER TO REVIEW ADMIN DECISIONS

First, we ask this question:

• Where do the courts get the power to review administrative decision making?

The answer:
• From 3 different sources

Three sources of power:

1. Original jurisdiction
2. Right of appeal, and
3. Courts’ inherent judicial review jurisdiction (most important for our purposes)

6
 THE BIG PICTURE:
THE COURTS POWER TO REVIEW ADMIN DECISIONS

1. Original jurisdiction:
• The ordinary courts have jurisdiction over the decisions of administrative decision-makers when
they are challenged by way of direct actions by a citizen in contract or tort on the ground that the state has
infringed an individual’s private legal right.
• For example:
• In 1995, a court granted a declaration that the Liberal government had breached a contract
in cancelling the agreement made by the previous Progressive Conservative government with developers for the
renovation and privatization of Pearson International Airport.

THE BIG PICTURE:

THE COURTS POWER TO REVIEW ADMIN DECISIONS

2. Statutory right of appeal:

• Many people think there is always a right of appeal.
• In fact, there is NO automatic right to appeal the substance of an administrative decision
to the courts.
• A right to appeal must be provided for in a statute.
• A critically important first step is to review the statute establishing the administrative agency and
see whether any right of appeal is provided for and on what grounds.
 Checklist

• Example:
• The Human Rights Tribunal and its enabling statute

7
 THE BIG PICTURE:
THE COURTS POWER TO REVIEW ADMIN DECISIONS

• Example:
• The Human Rights Tribunal and its enabling statute, the Ontario Human Right Code

http://www.e-
laws.gov.on.ca/html/statutes/french/elaws_statutes_90h19_f.h
tm#s45p7s1

• There is no right of appeal from an HRTO decision, but a party can ask for a
reconsideration of the decision in some cases.

THE BIG PICTURE:

THE COURTS POWER TO REVIEW ADMIN DECISIONS

3. Courts’ inherent judicial review jurisdiction:

• Third, and most important, the superior courts in each province (the judges appointed by the federal
government) may review decisions made by institutions and officials responsible for administering public programs
through the courts’ inherent judicial review jurisdiction.
• The words “inherent jurisdiction” refer to the fact that the jurisdiction of the superior courts is
broader than whatever may be conferred by statute.
• However, inherent jurisdiction is not jurisdiction for a general appeal. A court cannot simply
substitute its own decision for that of an agency—it is more complicated than that.
• Superior courts may (discretionary power) hear any matter unless there is a specific statute that
says otherwise or grants exclusive jurisdiction to another court or tribunal.
• Example:
• The enabling statute may have a privative clause that limits the challenge of the decision.

8
 THE BIG PICTURE:
THE COURTS POWER TO REVIEW ADMIN DECISIONS

Courts’ inherent judicial review jurisdiction:

• A privative or preclusive clause is a way in which the legislature attempts to stop the courts
from reviewing the decisions of administrative boards or tribunals.

• Example: Ontario Human Rights Code

45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers
Procedure Act and the Tribunal rules, a decision of the Tribunal is final and not
subject to appeal and shall not be altered or set aside in an application for judicial
review or in any other proceeding unless the decision is patently unreasonable.
2006, c. 30, s. 5; 2009, c. 33, Sched. 2, s. 35 (3).

THE BIG PICTURE:

THE COURTS POWER TO REVIEW ADMIN DECISIONS
Courts’ inherent judicial review jurisdiction:
• Historically, courts have made every effort to largely ignore or narrowly interpret privative or
preclusive kinds of clauses (a way in which the legislature attempts to stop the courts from reviewing the
decisions of administrative boards or tribunals).
• Courts did not accept even strongly worded privative clauses as ousting their authority to
review administrative decision making for excess of jurisdiction.
Why?
• Because administrative agencies and tribunals have only those powers conferred by legislation,
their powers are legally limited.
• Because Courts see their role as one of making sure that an administrative agency does not
step outside its jurisdiction and exercise power that it does not have.
• Because privative clauses essentially prevent the court from undertaking this role, courts have
given such clauses short shrift.

9
 THE BIG PICTURE:
THE COURTS POWER TO REVIEW ADMIN DECISIONS

Question:
• Why do “superior” courts undertake this role of keeping “inferior” administrative boards and tribunals
in check, even when the legislature has told them not to?
• And how tightly should courts police the boundaries of administrative decision making?
Answer:
• Through their approach to statutory interpretation, courts have wide discretion in how they approach
their role.
• The superior courts’ role, however, creates constitutional tension.

THE BIG PICTURE:

SECTION 96 COURTS AND INTERPRETING PRIVATIVE CLAUSES

Constitutional Tension:
Can a provincial legislature or the Parliament of Canada have the
constitutional capacity to exclude all kinds of judicial review of
decisions made by an administrative agency?
• On the one hand, the doctrine of parliamentary supremacy means that there is nothing
preventing legislatures from enacting whatever it wishes, including privative clauses.
But what happens when those privative clauses step on the toes of
the superior courts and their constitutional role?
• There is nothing explicitly said about this in the Constitution Act, 1867.
• However, there is an argument for implying a constitutionally guaranteed right to judicial review
of administrative action—one that trumps parliamentary supremacy in this context—and it has centered on the
provisions of the Constitution Act, 1867, ss. 96-101.

10
 THE BIG PICTURE:
SECTION 96 COURTS AND INTERPRETING PRIVATIVE CLAUSES

Superior Courts vs. Admin Tribunals:

• The constitutional guarantee of the courts inherent jurisdiction is found in the context of s. 96
Courts and the constitutional right to review admin decisions
• Although provinces do not have the jurisdiction to create s. 96 courts, for various reasons, they have
wanted to give administrative tribunals the same immunity from judicial review that s. 96 courts have.
• Accordingly, provinces have created de facto s. 96 courts by (conveniently) calling them
“administrative tribunals,” and inserting privative clauses making them immune from judicial review, just like superior
s. 96 courts.
• “Real” superior courts have not appreciated the provinces’ attempts to create unreviewable
tribunals and will determine whether an administrative tribunal is actually acting like a s. 96 court, and is therefore
unconstitutional because the province was without jurisdiction to create it.

THE BIG PICTURE:

CREVIER AND THE CONSTITUTIONAL GUARANTEE OF SECTION 96 COURTS

• Crevier, a decision by the Supreme Court of Canada (1981) is the leading case on administrative
tribunals masquerading as s. 96 courts.
• the Quebec legislation created a Professions Tribunal to hear appeals from discipline committees
of most statutory professional bodies in Quebec.
• the tribunal was composed of provincially appointed judges.
• the Act included a privative clause stating, in effect, that the tribunal’s decisions were final, even those
about the tribunal’s own jurisdiction.

• In Crevier, the Supreme Court asked the following question: was the
Quebec Professions Tribunal acting like a s. 96 court?
• Chief Justice Laskin, for the Court, noted that a provincial government, in creating an administrative
tribunal, could include a privative clause if it allowed superior court jurisdiction to review questions of jurisdiction even if
there was limited judicial review of all other kinds of decisions from the tribunal.
• But, if the wording of a privative clause tried to oust review by courts over even strict jurisdictional
questions(as was the case in Crevier) then the clause was not constitutionally valid, because the province had de facto
created a s. 96 court.

11
 THE BIG PICTURE:
CREVIER AND THE CONSTITUTIONAL GUARANTEE OF SECTION 96

• The Court concluded that to give a provincial tribunal unlimited jurisdiction to interpret and apply
law and then preclude any supervision by provincial superior courts created a s. 96 court.

• Crevier stands for the proposition that there is a constitutionally recognized right to judicial
review, at least of questions of jurisdiction that cannot be displaced by a privative clause, no matter how it is
worded.

• Following Crevier, in Bibeault, Justice Beetz said:

“[t]he role of the superior courts in maintaining the rule of
law is so important that it is given constitutional protection.”

THE BIG PICTURE:

THE RULE OF LAW

• Dicey and the rule of law are very important concepts in admin law.
• English constitutional lawyer and professor Alberta Venn Dicey pronounced that the rule of law … means, in the first place,
the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government.
• Two important principles emerge from Dicey's vision of the rule of law:
• "regular law" is supreme and individuals should not be subject to "arbitrary power".
• the state's officials are as much subject to the "ordinary" law of the land as other citizens.
• Because it is one of those philosophical law school type of topics it is beyond the scope of this prep course. It is however
covered extensively in your readings (the text books).
• The NCA may ask a question related to the rule of law.
• For example:
• How could we have all the benefits of tribunal justice, and still maintain the rule of law? or
• How can the public be sure that government-appointed tribunal members would hold fair hearings and stay within the
ambit of their administrative powers?

12
 THE BIG PICTURE:
THE RULE OF LAW
How can the public be sure that government-appointed tribunal members would hold
fair hearings and stay within the ambit of their administrative powers?
• If tribunals work within the rule of law and not outside it, it is because the courts took on the task of ensuring that
administrative tribunals remain true to their fundamental mandates, both procedurally and substantively (because of judicial review).
• So Judges have intervened to ensure that administrative tribunals administered justice in conformity to the fundamental
tenets of the rule of law.
• As guardians of the rule of law, it is therefore incumbent on the courts to ensure that any body relying on power delegated
by the legislature abide by the terms and conditions on which that power was granted.
• In other words, it is the courts' task to ensure that administrative tribunals exercised their power in a manner consistent with
its delegated mandated.
• There are various periods in Canadian administrative law, as the Supreme Court struggled to find a practical and principled
way to reconcile a vibrant regulatory system with judicial review that maintained the rule of law.
• For this reason, we cover some of the history of judicial review and the current modern approach.

THE BIG PICTURE:

THE COURTS POWER TO REVIEW ADMIN DECISIONS
The courts vs. the legislature: a history lesson
• Historically, courts’ inherent “supervisory” power over administrative decision-makers had to be
exercised through the remedies available—if there was no appropriate remedy, then the administrative action could not be
challenged.
• The relevant remedies were known as the prerogative writs and were once tremendously important in
administrative law. These prerogative writs were:
• certiorari (to quash or set aside a decision),
• prohibition (to order a tribunal not to proceed),
• mandamus (to order the performance of a public duty), and
• habeas corpus (to order the release of the unlawfully imprisoned)

 Checklist – Remedies

• These writs were used by the Royal Courts in England, and subsequently by the superior provincial
courts in Canada, to ensure that administrative bodies and tribunals did not exceed their legal powers

13
 THE BIG PICTURE:
THE COURTS POWER TO REVIEW ADMIN DECISIONS
The courts vs. the legislature: a history lesson
• For the first three-quarters of the 20th century, judicial review of statutory decision-making was very confined
• However, government expansion (intervention in the private sector, increased social programs, and legislative derogation
from the traditional jurisdiction of the courts) increased tension between the courts and the legislature.
• Courts’ attitude changed and they became “far less hospitable to the advent of many administrative tribunals and, more
generally, this new social order and reacted defensively against a government that was giving their jurisdiction away to administrative agencies.”
• The legislatures inserted “privative clauses” into the statutes in an attempt to stop courts from reviewing the
decisions of administrative decision-makers.
• But the courts responded in turn by either ignoring such clauses or interpreting them in a very restrictive way and
squeezed as many cases as possible into the old prerogative writs.
• In so doing, the concept of jurisdictional error became so distorted that the courts were able to review
administrative decisions just like they would review a lower court decision.
• If you did not like an administrative decision, you would argue before the courts that the administrative decision-maker had
exceeded its jurisdiction. The words “ultra vires” became so common that their original meaning was all but lost.
• Thankfully, change was on the way.

THE BIG PICTURE:

AN ADMINISTRATIVE LAW REVOLUTION

The 1960s and 1970s: An admin law revolution

• The McRuer Commission helped to bring about a basic codification of procedures for
administrative tribunals in a number of provinces. For example, in Ontario:
• the Statutory Powers Procedure Act: an additional source of procedural requirements and
which set minimum standards for administrative proceedings.
• the Judicial Review Procedure Act: established rules for courts reviewing errors of both law
and fact.

• The creation of the Federal Court Act allowed for the almost complete transfer of “remedial
jurisdiction over federal statutory decision makers … from the provincial superior courts to the newly created Federal
Court of Canada.
• Almost contemporaneously, Ontario conferred most judicial review authority onto a three-judge
bench of the then Ontario High Court, the Divisional Court.

14
 THE BIG PICTURE:
MODERN ADMIN LAW
• Over the next 30 years, nearly all of the provinces and territories enacted statutes that replaced
the old common-law writs (the remedies) with a single application for judicial review.
• However, the old remedies were mostly subsumed into these acts and were, and in many
jurisdictions still remain streamlined versions of the old prerogative writs (along with declaratory and injunctive
relief).
• The importance of all these new statutes cannot be understated. Previously, judicial review of
administrative decisions was defined by the common law—more specifically, by the ancient prerogative writs:
• Certiorari: an order that quashes or sets aside a decision
• Prohibition: an order that prohibits a tribunal from proceeding
• Mandamus: an order that requires the performance of a mandatory public duty.

THE BIG PICTURE:

MODERN ADMIN LAW

• Now, in many cases, there are statutory remedies.

• There are statutory procedural codes, provincial or federal level statues that
• allow an application for judicial review
• organize the procedure to be followed, and
• specify which court would have jurisdiction to review

• For example:
• The Judicial Review Procedure Act (JRPA)
• The Federal Courts Act (to federal tribunals)

• Administrative law moved from a pure common-law regime to a simpler statutory-based

regime informed by the common law.

15
 CHALLENGING AND ADM’S ACTION/DECISION:

• Historically, administrative law has focused primarily on procedural review with the implicit notion that
if a sound process is followed, a fair decision will be reached.
• The second major focus of administrative law is substantive review and, here, the courts look at the
decision itself, not just at the procedures that were followed in reaching the decision.
• Courts were quite eager to assert their influence in the administrative sphere (intra vires – ultra vires
era). However, all of this began to change in the revolution that took place in the 1960s and 1970s.
• The culmination of the changes in administrative law was the landmark Supreme Court decision
C.U.P.E. v. N.B. Liquor Corporation, which acknowledged that, often, there was no one right answer in terms of legal
interpretation, but a range of different reasonable interpretations, and that the view or choice of an administrative decision-
maker may be as legitimate as that of a court’s.
• This case should have ushered in a new era of judicial deference toward administrative tribunals—
although, the road toward this goal has been rocky.

GROUNDS FOR CHALLENGING ACTION/DECISION:

Today, the challenge of a decision/action of an ADM is

with respect to the following:

1. A procedural defect
• in the process (procedural fairness)
 Checklist
2. A substantive defect
• in the substance of a decision itself (which is subject to a standard of review
analysis)
• substantive errors are errors of fact, law or discretion, although these are
sometimes labelled in different ways.
 Checklist

16
 GROUNDS FOR CHALLENGING ACTION/DECISION:

Some Examples:

• When the ADM did not follow procedural fairness requirements such as:
• The right to be heard (notice of the hearing wasn’t sent)
• The right to an unbiased decision maker

• When the substantive decision warrants intervention from the reviewing

court because:
• The type of decision/error calls for low deference (respect)
• The decision has substantive defects that are neither correct or reasonable.

GROUNDS FOR CHALLENGING

ACTION/DECISION THE STANDARD OF REVIEW

• Determining the standard of review (correctness or reasonableness) is important only when challenging an
ADM’s decision on the basis of substance (not the procedure).

• The question of which standard of review to apply is often framed in terms of how much “deference” or
“respect” the reviewing court should show to the tribunal.

HIGH DEFERENCE
• REASONABELENSS
LOW DEFERENCE
• CORRECTNESS

17
 GROUNDS FOR CHALLENGING ACTION/DECISION:
PROCEDURAL & SUBSTANTIVE DEFECTS

For example, when your challenge is based on a substantive defect:

• the courts ask themselves what the standard of review is in other words, how big an error must the tribunal
make before the court will get involved?
• Following the Supreme Court’s decision in Dunsmuir, there are now two categorical possibilities:
1. The standard of correctness -
an exacting standard of review
 (that is, was it a correct decision, the same decision that the court would have reached?)

 2. The standard of reasonableness

- a more respectful or forgiving standard of review
(that is, did the tribunal’s decision fall within a range of
reasonable alternatives?)

CHALLENGING ADMIN ACTION/DECISION

PROCEDURE AND THE ENABLING LEGISLATION

• Admin law focuses on challenges that are made through applications for judicial review.
• However, judicial review is only one method of challenging administrative action.
• In order to bring a successful judicial review application, a challenger must be aware of the
specific remedial mechanisms available and how those mechanisms will help him or her achieve the result that he
or she wants.
• Many enabling statutes set out express lists of the remedies a tribunal may order.
• For example:
-power to make declaratory orders
-order a party to repair a problem or to mitigate damage
-order a party to comply with the tribunal’s enabling statute
-impose significant fines and possible incarceration

18
 CHALLENGING ADMIN ACTION/DECISION
PROCEDURE AND THE ENABLING LEGISLATION

• A tribunal is a creature of statute. It cannot make orders that affect individuals’ rights or
obligations without authority from its enabling statute. Att. Gen. of Can. v. Inuit Tapirisat et al.,1980.

• If a tribunal makes orders outside the scope of its enabling statute, it is exceeding its
jurisdiction, and those orders will be void.

• In R. v. Conway, SCC found that original ADM could consider the applicant’s charter argument
(initially refused to hear it) but then dismissed the applicant’s case in its entirety (ADM couldn’t give him the remedy
he requested – absolute discharge was not an available remedy under the enabling legislation).

• Success through an application for JR is not always possible.

CHALLENGING ADMIN ACTION/DECISION

PROCEDURE

• Parties seeking to challenge administrative action should remember that a violation of

procedural fairness will not guarantee a substantive outcome because …
the role of the court is to supervise the decision-making process,
to ensure that the decision has been made properly. Not that the
proper decision has been made.
• For example:
• A motion to quash a tribunal decision for lack of procedural fairness, if successful, will likely
lead to the court sending the matter back to the original tribunal for rehearing.
• However, this result may not satisfy the challenger. Even assuming that procedural fairness is
observed the second time, there is no guarantee that the party will receive the substantive outcome he or she
seeks.

19
 CHALLENGING ADMIN ACTION/DECISION
PROCEDURE

• How do you go about challenging and ADM’s decision/action?

• What are the different procedures/avenues?
• Do I challenge the decision/action internally(within the same
tribunal)?
• Or do I go to court by way of JR?
• Is there a difference between provincial and federal challenges?

CHALLENGING ADMIN ACTION/DECISION

CHALLENGING ADMIN
ACTION / DECISION

INTERNAL EXTERNAL NON

EXTERNAL COURT

TRIBUNAL COURT

MECHANISMS

MECHANISMS

MECHANISMS

ENABLING STATUTE: PRIVATE L

RECONSIDER STATUTORY

RE-HEAR JUDICIAL REVIEW CIVIL

APPEALS

APPEAL ACTION

DISCRETION:

GROUNDS TO DENY

MONEY REMEDIE

REASONABLENESS
VS.
CORRECTNESS

REMEDIES
WRITS
20
 CHALLENGING ADMIN ACTION/DECISION
PROCEDURE

• Internal Tribunal Mechanisms

• Does the statute provide for an appeal process within the statutory process/agency/tribunal? (reconsideration,
rehearing, appeal to a delegate/minister)
• The scope - type of challenges- (on a point of law, final decisions only?)
• The rules – timing, notice

• External Non-Court Mechanisms

• Using the Courts: Statutory Appeals

• Is an Appeal Available?
• As of right or with leave?

• Using the Courts: Judicial Review

• Discretionary Bases for Refusing a Remedy
• Is Judicial Review Available?

CHALLENGING ADMIN ACTION/DECISION

INTERNAL TRIBUNAL MECHANISMS

• Legislative drafters, in crafting tribunals’ enabling statutes, may use various tools to limit or
circumscribe the available scope of court intervention in the tribunals’ decision-making processes.
• One common mechanism is the privative clause.
• Another technique is to provide for avenues of appeal of a decision that are internal to the
tribunal itself.
• This limits recourse to judicial review, because the general rule is that recourse to the courts is
only available after a party has exhausted all avenues of appeal, including internal appeals and any appeals to the
courts provided for in the statute.
• By providing for appeal mechanisms, and in particular for internal appeal mechanisms with their
own unique and sometimes uncourtlike structures, the executive (gov’t) is able to maintain a greater degree of
control over the statutory scheme that it has constructed to address a particular public issue.

21
 CHALLENGING ADMIN ACTION/DECISION
INTERNAL TRIBUNAL MECHANISMS

Does the statute provide for an appeal process within the statutory
process/agency/tribunal?
 Checklist

• Some enabling statutes specifically provide tribunals with the ability to reconsider and rehear
decisions they have made.
• This is most common where a particular tribunal has ongoing regulatory responsibility over a particular
domain, such as public utilities regulation or employer – employee relations.
• For example:
• the Public Service Labour Relations Act provides:
“[s]ubject to subsection (2) [prohibiting retroactive effect of any rights
acquired], the Board may review, rescind or amend any of its orders
or decisions, or may re-hear any application before making an order in
respect of the application.”
• Absent such express statutory authority, a tribunal cannot reconsider or alter a final decision made
within its jurisdiction. Once it has made a final decision, the tribunal is functus officio.

CHALLENGING ADMIN ACTION/DECISION

INTERNAL TRIBUNAL MECHANISMS

• Some administrative tribunals are part of multitiered administrative agencies. Those tribunals’ enabling
statutes may provide for appeals internal to the administrative agency itself.
• For example:
• Parties appearing before Canada’s Immigration and Refugee Board Immigration Division may
appeal to its Immigration Appeal Division.
• Similarly, provincial securities acts across the country provide that persons directly affected by
decisions made by Securities Commission staff may appeal to (or, in some statutes, seek “review” from) the commission
itself, to which staff reports.
• These internal review proceedings do not necessarily preclude subsequent appeals to the courts.
• For Example:
• Various provincial Securities Acts provide for appeals under limited conditions from their internal
appellate bodies to the courts.
• These are called “statutory appeals” and they are external court mechanism for challenging an admin
action/decision.

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 CHALLENGING ADMIN ACTION/DECISION
INTERNAL TRIBUNAL MECHANISMS

• Where the statute does not provide for an appeal to the courts, the parties’ only access to the courts is
by means of judicial review.
• However, where a statute provides for reconsideration or appeals, a challenger should generally
exhaust those avenues before making an application for judicial review.
 Checklist

Consider the following:

• The existence of an internal appeal mechanism in your tribunal (reconsideration, rehearing, appeal to a
delegate/minister)
• The scope (type) of the internal appeal mechanism (law)
• Any rules the tribunal may have and whether they are binding
• The timing of challenging the decision
• If you can appeal interim decision or only final decisions.

CHALLENGING ADMIN ACTION/DECISION

EXTERNAL NON-COURT MECHANISMS

• A party considering a challenge to administrative action should not overlook non-legal avenues.
• Ombudspersons or similar positions exist by statute in every Canadian province.
• There is no overarching federal ombudsperson, but some federal departments and subject areas have their own
specialized ombudspersons.
• For example, in 2007 and 2008, the federal government created a Federal Ombudsman for Victims of Crime
and a Taxpayers’ Ombudsman.
• Generally, the mandate of an ombudsperson is to provide a forum for citizens to bring their complaints regarding
the way that government departments and agencies have dealt with them.
• There is no charge to make a complaint
• Ombudspersons have discretion as to whether or not they will investigate.
• Most ombuds statutes provide that an ombudsperson is not authorized to investigate a tribunal’s decision until
after any right of appeal or review on the merits has been exercised or until after the time limit for doing so has expired.
• Several other public officials similar to ombudspersons also exist, including freedom of information and privacy
commissioners, the auditor general, provincial auditors, and human rights commissioners.
• Public inquiries are another mechanism for challenging government conduct.

23
 CHALLENGING ADMIN ACTION/DECISION
EXTERNAL COURT MECHANISMS

• There may be times when it makes sense to go through all internal appeal stages (to maintain the
integrity of the administrative regime).
• There may also be times when what is required is faster and unapologetic recourse to the courts
—for example, allowing a party to “leapfrog” the internal appeals and proceed directly to the courts.
• There are two main ways by which a party to a tribunal action can access the courts to challenge
the tribunal’s action/decision:
• Appeal, and
• judicial review

• Appeal mechanisms—either to internal administrative appellate bodies or to courts—are the

norm.
• Judicial review is the exception. Significantly, judicial review is also discretionary.

CHALLENGING ADMIN ACTION/DECISION

USING THE COURTS: STATUTORY APPEALS

Is an Appeal Available?

 Checklist
1. Does the tribunal’s enabling statute provide for a right of appeal?

2. What is the scope of available appeal?

3. Is an appeal available as of right or is leave required? If leave required, who may

grant it?

4. Is a stay of proceedings automatic or must one apply for it?

24
 CHALLENGING ADMIN ACTION/DECISION
USING THE COURTS: IS AN APPEAL AVAILABLE?
1. Does the tribunal’s enabling statute provide for a right of appeal?
• Courts have no inherent appellate jurisdiction over administrative tribunals.
• A right to appeal must be provided for in a tribunal’s enabling statute.
• If a statute does not so provide, a dissatisfied party will have to access the courts by way of judicial review.
• Generally, parties may not appeal interlocutory rulings (for example, on jurisdiction, procedural or
evidentiary issues, or bias). To be appealable, the tribunal’s decision must decide the merits of the matter or otherwise be a final
disposition of it.
• Usually, a tribunal’s enabling statute will also set out the court to which tribunal orders may be appealed.
• For federal tribunals, appeals are usually taken to the Federal Court or the Federal Court of Appeal (more
on this later).
• Appeals from provincially constituted tribunals may be taken to the province’s trial court of general
jurisdiction, to a divisional court, or to the court of appeal.
• Rarely, a statute will provide a right (seldom exercised) to appeal a tribunal decision to Cabinet itself.

CHALLENGING ADMIN ACTION/DECISION

USING THE COURTS: IS AN APPEAL AVAILABLE?

2. What is the scope of available appeal?

• Just as the enabling statute determines whether a statutory appeal is available in the first place, the
enabling statute entirely determines its scope.
• That scope varies enormously from tribunal to tribunal.
• Some statutes permit complete de novo review of a tribunal’s decision, while others will be
limited to issues of law based entirely on the record.

• An appellate court’s jurisdiction in reviewing tribunal decisions may be different in scope from an
appellate court’s jurisdiction in reviewing lower court decisions.
• Appellate courts generally review trial court decisions for error of law or, more rarely, for palpable
and overriding error in a finding of fact.
• By contrast, a court that has been designated to take appeals from a tribunal’s decision must
look to the tribunal’s enabling statute to determine the breadth and scope of its appellate powers.

25
 CHALLENGING ADMIN ACTION/DECISION
USING THE COURTS: IS AN APPEAL AVAILABLE?

Determining the scope of an Appeal

• The scope is determined by how closely the tribunal’s subject matter, and its expertise, mirror the mandate
and expertise of general courts.
• Statutes are more likely to provide a right of appeal to the courts where the tribunal has the power to affect
individuals’ common-law rights
• For example:
• statutes generally provide for a broad power to appeal from certain professional disciplinary tribunals on
questions of fact and law, where professionals risk losing their ability to practice their profession, and
• from human rights tribunals adjudicating on violations of human rights codes.
• In contrast, Labour relations and employment-related matters, which have long been adjudicated by
boards with specialized expertise (and involve claims by organized labour to which courts were historically perceived to be
hostile) cannot generally be appealed to the courts.
• For Example:
• Under the Labour Relations Act, 1995, there is no right of appeal (can still apply for JR)

CHALLENGING ADMIN ACTION/DECISION

USING THE COURTS: IS AN APPEAL AVAILABLE?

Determining the scope of an Appeal

• Yet even where the appeal rights are broad, courts will show some deference to
a tribunal’s findings of fact on the assumption that the tribunal had the evidence before it and
was in a better position to make those findings.
• But…Courts are not expected to defer to tribunals because of the mere fact that
the legislature designated them—and not the courts—as the decision-makers of first instance (at
least where there is a broadly worded statutory right of appeal).

26
 CHALLENGING ADMIN ACTION/DECISION
USING THE COURTS: IS AN APPEAL AVAILABLE?

3. Is an appeal available as of right or is leave required? If leave required, who may grant it?
• Appeals can be as of right or require leave. Where leave must be obtained, it can be the leave either of the original
decision-maker or, more frequently, of the appellate body (that is, the court).
• For example:
• British Columbia’s Forest Practices Code provides for an appeal as of right from the Forest Appeals Commission
to the B.C. Supreme Court on questions of law or jurisdiction.
• By contrast, a person affected by a decision of the B.C. Securities Commission may appeal to the B.C. Court of
Appeal only with leave of a justice of that court.

• Sometimes, additional statutory criteria must also be met before such leave will be granted.
• For example:
• an appeal to the Federal Court of Appeal from judicial review by the Federal Court on immigration matters may
be made only if the Federal Court judge certifies that “a serious question of general importance” is involved. Immigration and Refugee
Protection Act,, s. 74.

CHALLENGING ADMIN ACTION/DECISION

USING THE COURTS: IS AN APPEAL AVAILABLE?
4. Is a stay of proceedings automatic or must one apply for it?
• The rules governing stays of proceedings vary between jurisdictions and even tribunals.
• Specific enabling statutes may expressly empower their tribunals or the appellate bodies (internal or court) to which
they appeal to stay enforcement of the tribunal order pending appeal.
• For example:
• The Ontario SPPA establishes a default rule that an appeal operates as a stay of a tribunal’s proceedings.
• The B.C. Administrative Tribunals Act, by contrast, provides that
“the commencement of an appeal does not operate as a stay or suspend
the operation of the decision being appealed unless the tribunal orders
otherwise.”
• In the Federal Court, as well, stays of proceedings are usually discretionary.

• Unless a statute specifically excludes it, as B.C.’s ATA does, the superior court that is the tribunal’s designated
appellate court has the inherent authority to grant a stay.

27
 CHALLENGING ADMIN DECISION:
APPEAL DE NOVO
• In what is called an “appeal de novo,” the court essentially repeats the decision making exercise:
• it receives oral testimony of witnesses
• It can hear new evidence that was not before the original decision-maker.

• In contrast, in judicial review, the court is restricted to the evidential record that was before the original
decision-maker:
• witnesses do not testify
• the court cannot receive new evidence

• “Review” is literally what the court is doing in a judicial review, rather than making a new decision.

• It is important to remember that judicial review for substantive error in a decision (regardless of the
standard of review-how closely they scrutinize the decision) is not the same as an appeal against that decision.

CHALLENGING ADMIN ACTION/DECISION

USING THE COURTS: APPEAL VS. JUDICIAL REVIEW

• Relative to judicial review it is easier to predict the availability and likely outcome of an appeal
when the statute provides for its availability and scope.

• By contrast, judicial review is the product of decades of contentious court battles, modified from
time to time by statute and struggling with the tension between:
“legal” values of justice and the ‘rule of law’
vs.
“democratic” values, legislative intent, and “bureaucratic”
values (efficiency and expertise).

28
 CHALLENGING ADMIN ACTION/DECISION
USING THE COURTS: JUDICIAL REVIEW

• Judicial review has long been the fixation of administrative law, at the expense of tribunal-based
mechanisms and statutory appeals.
• Judicial review can be conceptually and logistically complex, and it differs from a straightforward
appeal.
• The basic nature of judicial review is different from statutory or internal tribunal appeals
because, at its root, judicial review is about the inherent jurisdiction of courts to oversee and check administrative
(that is, executive) action in the interest of the rule of law.
• This makes JR a potentially sweeping remedy.
• Unlike appeals from tribunals, which are statutorily created, judicial review is the review of executive
action beyond what the legislature provided for (even when they tried to limit the court’s powers).

CHALLENGING ADMIN ACTION/DECISION

USING THE COURTS: JUDICIAL REVIEW

Using the Courts: Judicial Review

• Discretionary Bases for Refusing a Remedy
• Is Judicial Review Available?

29
 CHALLENGING ADMIN ACTION/DECISION
JUDICIAL REVIEW: DISCRETIONARY BASIS FOR REFUSING A REMEDY

• A court’s decision whether to grant judicial review is intimately bound up with the
core tension that underlies all of administrative law—what the Supreme Court recently called in
Dunsmuir:
“an underlying tension between the rule of law and the
foundational democratic principle, which finds an expression
in the initiatives of Parliament and legislatures to create various
administrative bodies and endow them with broad powers.”
• Courts are the indispensable guardians of the rule of law, but they still need to
operate within their sphere of authority, which means respecting the fact that, through enabling
statutes, legislatures grant authority over certain things to administrative tribunals, and not to the
courts themselves.
• A lot of administrative law jurisprudence is devoted to trying to negotiate a path
through the difficult territory on the borders of government branches’ spheres of authority.

CHALLENGING ADMIN ACTION/DECISION

DISCRETIONARY BASIS FOR REFUSING A REMEDY

• When we discuss the court’s discretion to deny your JR, what concerns us is the threshold
question of whether to grant judicial review at all.
• before considering the merits of the case,
• before figuring out the standard of review, and
• before determining the degree of procedural fairness a party is entitled to.

• Judicial review is fundamentally discretionary in a way that appeals are not.

• A court has the discretion to refuse to grant a remedy even where one seems clearly warranted
by the facts of a case.
• Recent cases from the Supremes seem to be moving toward affirming the courts’ own power (as
opposed to the power of legislatures) to establish the terms on which it will grant judicial review.

30
 CHALLENGING A DECISION
WHEN WILL THE COURT DENY MY JR CHALLENGE?

• The Court may refuse to review an action/decision if the following circumstances apply :

1. Availability of alternative remedies

2. Prematurity
3. Delay and Waiver
4. Mootness
5. Misconduct of the applicant
6. A balance of convenience/public interest
7. Standing

 Checklist - look at your scenario to determine if these circumstances apply

CHALLENGING ADMIN ACTION/DECISION

DISCRETIONARY BASIS FOR REFUSING A REMEDY
• The first 5 grounds are the original set of discretionary grounds for refusing relief derived from
common law and equity (they survived the statutory reform of judicial review).
• These are reminiscent of similar equity-based grounds in civil procedure, such as laches, and
(with the possible exception of ‘availability of alternative remedies’) are fairly intuitive in the same way that laches is.
• Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the
[opposing] party”.
• When asserted in litigation, it is an equitable defense, or doctrine.
• The person invoking laches is asserting that an opposing party “has slept on its rights” and
that, as a result of this delay, circumstances have changed such that it is no longer just to the grant the plaintiff’s
original claim.
• Put another way, failure to assert’s one’s rights in a timely manner can result in a claim being
barred by laches. Laches is a form of estoppel for delay.

31
 CHALLENGING ADMIN ACTION/DECISION
DISCRETIONARY BASIS FOR REFUSING A REMEDY

1. Availability of Alternative Remedies

• The most important basis for refusing to grant a remedy in judicial review is that adequate alternative remedies are available.
• Parties should exhaust all prescribed avenues of appeal before proceeding to the “last resort” of judicial review (e.g. appeal to court
or an appellate tribunal, or reconsideration).
• It is not sufficient to simply assert that there are alternative remedies available. You need to consider if the appropriate relief is
adequate- are these remedies are truly available?
• In Harelkin v. University of Regina, [1979] 2 S.C.R 561, 96 D.L.R. (3d) 14, the SCC determined that some factors may render an
alternative form of review inadequate.
• For example: appeal mechanisms provided for by statute will be inadequate where:
• the appellate tribunal lacks statutory authority over, or is not willing to address, the issues the appellant raises. [Canadian Pacific Ltd. v.
Matsqui Indian Band, [1995] 1 S.C.R. 3]
• the appellate tribunal does not have statutory authority to grant the remedy the appellant requests. [Evershed v. Ontario
(1985), 50 O.R. (2d) 198 at 200 (C.A.)]
• the appeal must be based on the record before the original tribunal, but that record does not include evidence relevant to the
applicant,[V.S.R. Investments Ltd. v. Laczko (1983), 41 O.R. (2d) 62 (Div Ct.)]
• or that record includes evidentiary errors that the appellate tribunal lacks authority to correct [Cimolai v. Children’s and
Women’s Health Centre (2003), 228 D.L.R. (4th) 420 (B.C.C.A.)]
• the alternative procedure is too inefficient or costly.[Violette v. Dental Society]

CHALLENGING ADMIN ACTION/DECISION

DISCRETIONARY BASIS FOR REFUSING A REMEDY

2. Prematurity
• Judicial review applications that are brought before tribunal proceedings have been concluded are usually
dismissed as being premature (even if the Applicant has good cause for JR).
• This includes challenges to the tribunal’s interim procedural and evidentiary rulings.
• The policy rationales that underlie dismissals for prematurity include:
(a) that administrative action is meant to be more cost-effective than court proceedings, and interim
judicial review fragments and protracts those proceedings;
(b) that preliminary complaints may become moot as the proceedings progress; and
(c) that the court will be in a better position to assess the situation once a full and complete record of
tribunal proceedings exists.
[Sherman v. Canada (Canada Customs and Revenue Agency),
[2006] F.C.J. No. 912 (QL); Zündel v. Canada (Human Rights
Commission), [2000] 4 F.C. 255 (C.A.)]

32
 CHALLENGING ADMIN ACTION/DECISION
DISCRETIONARY BASIS FOR REFUSING A REMEDY
2. Prematurity
• For example:
• In Air Canada v. Lorenz (Fed Ct. TD), Lorenz made an unjust dismissal complaint. 5 days into the hearing, Air Canada
learned that the Arbitrator may have a conflict of interest and requested he recuse himself (bias). The arbitrator declined and Air Canada brought
a JR.
• The court considered the hardship to Air Canada in having it proceed with the hearing without resolving the question of
bias and time and resources that would have been wasted versus the adverse consequence of delaying the proceeding and fragmentation of the
hearing.
• Fed Ct. TD found that Air Canada had not established a clear and obvious case of bias, that the JR was premature
and the proceeding should continue until the arbitrator determined the complaint on its merits.

• To obtain judicial review of a tribunal’s preliminary or interim ruling, an applicant must show special circumstances, which
mean one cannot wait until the conclusion of the proceeding.
• A challenge to the legality of the tribunal itself, a clear question of law about the tribunal’s jurisdiction, or the
absence of an appropriate remedy at the end of the proceedings may constitute special or exceptional circumstances. Howe v.
Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.).
• Prematurity can be overcome when the tribunal never had jurisdiction or lost jurisdiction because it denied natural justice or
procedural fairness.

CHALLENGING ADMIN ACTION/DECISION

DISCRETIONARY BASIS FOR REFUSING A REMEDY
3. Delay and Waiver
• Failure to comply with mandatory limitation statutes or provisions will prevent the court from
considering JR.
• Even if statutory time limits for filing a judicial review application have been met, parties must be
aware that delay and acquiescence may be grounds for a reviewing court to refuse a remedy (Imeubles Port Louis Ltée
v. Lafontaine (Village), [1991] 1 S.C.R. 326)
• If a tribunal commits a procedural error or demonstrates an appearance of bias, the failure
of a party to object may result in relief being denied.
• Parties should object promptly to any perceived impropriety on the part of the tribunal.
• Similarly, choosing not to attend a hearing could waive any right to judicial review.
• Even if there is no limitation period, court may deny relief on ground of undue delay, the
doctrine of laches.

33
 CHALLENGING ADMIN ACTION/DECISION
DISCRETIONARY BASIS FOR REFUSING A REMEDY
4. Mootness
• A remedy in judicial review will not be granted where the issues are moot (if the remedy would have
no practical effect)
• For Example:
• This may be the case where a dispute is over or has not yet arisen
• where a tribunal’s order has expired or no longer affects the applicant (where an inmate has
been released but filed a JR application prior to his/her release with respect to treatment)
• where the litigant no longer actually wants the remedy that the tribunal might have granted had it
not erred. Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353; Bago v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No. 1565 (QL)
• The court may also refuse to provide the remedy the tribunal would have granted if present
circumstances make doing so impossible,
• May also refuse if the court believes the tribunal’s error did not affect its overall conclusion (Mobil Oil
Canada Ltd. v. Canada-Nfld. Offshore Petroleum Board, [1994] 1 S.C.R. 202)

CHALLENGING ADMIN ACTION/DECISION

DISCRETIONARY BASIS FOR REFUSING A REMEDY

5. Misconduct of the Applicant

• The court will use its discretion to refuse to grant a remedy on judicial review where the party
making the judicial review application does not come with clean hands (Those who seek equity must come to the
court with clean hands)
• This could include seeking a remedy to facilitate illegal conduct or to obtain an unfair
advantage, or flouting the law or making misrepresentation (Jaouadi v. Canada (Minister of Citizenship and
Immigration) (2003), 257 F.T.R. 161)
• For Example:
• In Homex Realty and Development Co. Ltd. v. Wyoming (Village) [1980], the SCC found
that applicant had a right to a hearing and did not receive such an opportunity.
• However, the court denied remedy on grounds that the Applicant was seeking to avoid cost
of services associated with subdivision of lands.

34
 CHALLENGING ADMIN ACTION/DECISION
DISCRETIONARY BASIS FOR REFUSING A REMEDY
• Courts began to recognize that it may be appropriate to refuse to grant judicial review out of
deference to tribunals’ unique institutional roles (even where the five original grounds were not present).
• The most forceful statement about the contingent nature of judicial review remedies from this era
comes from Domtar Inc. v. Quebec.
• In deciding not to intervene to resolve a conflict in legal interpretation between two tribunals
construing the same statutory language, the Supreme Court of Canada stated
“[t]he advisability of judicial intervention in the event of conflicting
decisions among administrative tribunals, even when serious
and unquestionable, cannot, in these circumstances, be
determined solely by the ‘triumph’ of the rule of law.”
• Over the past few years, the doctrine seems to have undergone another shift. Beginning in 2008 with
Dunsmuir, the Supreme Court began to reassert the importance of the courts’ role in upholding the rule of law, while
avoiding “undue interference” .
• The overall result of recent cases such as Dunsmuir and Khosa has been a resurgence of the
original common-law bases for refusing relief, accompanied by a willingness to consider other, analogous and clearly
defined grounds.

CHALLENGING ADMIN ACTION/DECISION

DISCRETIONARY BASIS FOR REFUSING A REMEDY

6. Balance of Convenience
• In MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 (Rothstein J. writing),
the Court added another consideration to the original five mentioned above: the balance of convenience to the
various parties.
• In that case, the balance of convenience justified reducing the impact of the remedy
granted, from relief in the order of certiorari and mandamus to a declaration.
• Court may refuse relief where there has been denial of procedural fairness, on basis that outcome
would have been the same.
• This will only apply in exceptional cases. See Mobile Oil Canada Ltd. v . Canada –
Newfoundland Offshore Petroleum Board. [1994] SCC decision
• Generally, the court is reluctant to speculate on what the outcome would be (Cardinal v.
Director of Kent Institution)

35
 CHALLENGING A DECISION
DISCRETIONARY BASIS TO DENY CHALLENGE/REFUSE A REMEDY
7. Standing
• Not every citizen is entitled, as of right, to challenge administrative action. Judicial review of administrative action is reserved for those who
are found to have a sufficient legally recognized interest in the matter to justify their application.
• It is said that the test for standing is whether the applicant is a “person aggrieved” by the administrative decision.
• A person aggrieved is one who will suffer some “peculiar grievance of their own beyond some grievance suffered by them in common
with the rest of the public.”

• Whether an individual has standing to bring an application for judicial review, or an appeal from the decision of a tribunal, is governed by
the language of the particular statute. Some statutes provide for a narrow right of standing while others provide for a broader right of standing.
 Checklist

• Examples
• The Ontario Residential Tenancies Act, 2006, establishing the Landlord Tenant Board, sets out that:
“[t]he parties to an application are the landlord and any tenants or other persons
directly affected by the application.”

• Ontario’s Statutory Power Procedures Act (SPPA),provides:

The parties to a proceeding shall be the persons specified as parties by or under the statute
under which the proceeding arises or, if not so specified, persons entitled by law to be
parties to the proceeding.

• Under s. 18(1) the Federal Court Act, an application for review may be made by: "anyone directly affected by the matter in respect of which the relief
is sought".

CHALLENGING A DECISION
DISCRETIONARY BASIS TO DENY CHALLENGE/REFUSE A REMEDY
Public Interest Standing:
• Public interest standing can also be used to challenge administrative decisions if the applicant meets the
test for public interest standing set out by SCC in Finlay v. Canada (Minister of Finance)
• Is the matter serious and justiciable?
• Is the party seeking standing genuinely involved in the matter?
• Is there any other reasonable and effective way for the matter to be brought before the court?

• In Finlay, the Court applied this test to grant standing to a recipient of social benefits to challenge the
conduct of the federal government toward the province of Manitoba under the then Canada Assistance Plan.
• The applicant raised a serious issue with respect to the legality of the government’s action (or, in this
case, its inaction in failing to penalize a province for breaching the conditions of the Plan), and
• as a recipient of the benefit in question, was clearly genuinely interested.
• Because neither the federal government nor the provinces had an interest in compelling a penalty
from the federal government, the Court also concluded that there was no reasonable alternative by which the challenge would
reach court.

36
 CHALLENGING A DECISION
DISCRETIONARY BASIS TO DENY CHALLENGE/REFUSE A REMEDY
Standing for Constitutional Challenge:
• The leading case on the law of standing for constitutional challenge is Canadian Council of Churches v. Canada
(Minister of Employment and Immigration) which dictates a criteria a public-interest group must meet in order to be allowed to mount a
challenge:
1. the applicant must show that a serious issue has been raised;
• Seriousness of the issue “encompasses both the importance of the issues and the likelihood of their being resolved
in favour of the applicant,” with the latter measured by considering whether the applicant has a “fairly arguable case.” [Sierra Club of
Canada v. Canada (Minister of Finance), [1999] 2 F.C. 211]

2. it must have a genuine or direct interest in the outcome of the litigation; and
• The requirement of genuine or direct interest sufficient to satisfy the test for public-interest standing relates, at least
in part, to the experience and expertise of the applicant in relation to the subject matter of the litigation. Sierra Club of Canada

3. there must be no other reasonable and effective way to bring the matter to court.
• Last, the “reasonable and effective means” threshold amounts to asking whether there is a more appropriate
applicant: “public interest standing may still be denied if there are other individuals who are more directly affected than the applicant, and
are reasonably likely to institute proceedings to challenge the administrative action in question.” Sierra Club of Canada

CHALLENGING A DECISION
DISCRETIONARY BASIS TO DENY CHALLENGE/REFUSE A REMEDY

Generous approach to Standing:

• A Generous approaches to standing may be warranted now that the scope of fairness continues to expand [Nicholson v.
Haldimand Norfolk (Regional) Police Commissioners] and tribunal jurisdiction over the Canadian Charter of Rights and Freedoms has also been
approached more generously [Martin v. Nova Scotia (Workers’ Compensation Board), [2003] 2 S.C.R. 504; Paul v. British Columbia (Forest
Appeals Commission), [2003] 2 S.C.R. 585; and R. v. Conway, [2010] 1 S.C.R. 765].
• In Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), which is a recent case
involving a constitutional challenge, the Supreme Court broaden its public interest standing.
• In 2007, when Ms. Kiselbach and SWUAV filed a constitutional challenge to prostitution laws on the basis that the
regulations made sex work dangerous.
• The federal government argued they didn’t have the right to pursue the case, as neither Ms. Kiselbach nor the
group were at risk of being charged under the laws in question.
• the case made its way to the Supreme Court of Canada, which in September 2012 ruled that Ms. Kiselbach – who
now works with a violence prevention group – and SWUAV had public interest standing.
• The case involves a constitutional challenge, but as in the past, a change in public-interest standing in constitutional
matters will likely spill over to administrative law.

37
 CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?

• Whether judicial review will be available as a remedy in any particular situation depends on a set of
considerations unique to administrative law.
• A party seeking to challenge administrative action through JR should determine:

1. Whether he decision maker (the tribunal) is a public body

2. Whether he/she has standing to challenge the decision
3. Which court he/she should apply to for judicial review
4. Whether the application for JR is within the time limits
5. Whether the party has exhausted all other adequate means of recourse for challenging the
tribunal’s actions
6. Weather the remedies available address ‘success’

 Checklist

CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?
1. Whether the decision maker (the tribunal) is a sufficiently “public” body
• Not every decision or action is subject to JR. Judicial review is available to check executive action.
• Therefore, only public bodies can be subject to judicial review.
• One of the key threshold questions is whether the tribunal whose actions are being challenged is,
in fact, a public body.
• For example
• private action such as private corporation’s decision to terminate an employee can be the
subject of a lawsuit but cannot be judicially reviewed.
• Sometimes the line between public and private is blurry.
• Some organizations in Canadian society operate at considerable remove from government, yet
exercise some degree of “public” function.
• Others seem private, but have some connection to public authority.
• Lets look at examples

38
 CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?

1. Whether the decision maker (the tribunal) is a sufficiently “public” body

• For example:
• stock exchanges regulate the conduct of their members and issue and revoke licences, and
their operations clearly go to the protection of the public.
• However, their authority to act as they do derives from a compact with their members rather than
from any statutory grant of authority.
• What about corporations incorporated under the Canada Business Corporations Act (CBCA)?
Corporations are the prototypical “private” institution, yet CBCA companies only come into existence by virtue of
government action under that statute.
• what about government action with a private contracting party.
• As a general matter, a private party will have difficulty seeking judicial review of a government
board’s decision not to award it a particular contract.

CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?

1. Whether the decision maker (the tribunal) is a sufficiently “public” body

• Whether a particular tribunal/decision maker is a private body or a public one depends on
several factors:
-the tribunal’s functions and duties
-the sources of its power and funding
-whether the government directly or indirectly controls the
body, and
-whether government would have to “occupy the field” if
the body were not already performing the functions it does.

• A body or tribunal will be subject to public law, and therefore judicial review, if it is “part of
the machinery of government.” [McDonald v. Anishinabek Police Service et al. (2006), 83 O.R. (3d) 132
(Div. Ct.)]

39
 CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?

2. Whether party has standing to challenge a tribunal decision

• The answer will be straightforward for individuals who are actual parties to an administrative
action
• but other persons may have a collateral interest in the same matter and may want to challenge
a tribunal order that does not directly affect them.
• refer to previous discussion on standing and public interest standing.

CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?
3. To which court he or she should apply for judicial review (provincial vs. fed)
• Both the provincial superior courts and the Federal Courts have judicial review jurisdiction (federal courts are
discussed in detail at the end of the materials).
• Although a tribunal’s enabling statute will generally set out which court has jurisdiction to hear a statutory appeal,
this is not the case for judicial review (because judicial review is an extraordinary remedy that does not come out of the enabling statute
in the first place)
• Typically, the choice of courts is determined by whether the source of the impugned authority’s power is provincial
or federal but there are some exceptions.
• Provincial superior courts have concurrent or exclusive jurisdiction over some specific aspects of federal
statutory regimes, as a result of both the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, and the
Federal Courts Act.
• In particular, provincial superior courts have concurrent jurisdiction where Charter issues are raised in attacks
on federal legislative regimes (Reza v. Canada, [1994] 2 S.C.R. 394) and—although this is private law, not judicial review—over
damages actions in which relief is sought against the federal Crown (Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010]
3 S.C.R. 585.
• Some overarching provincial statutes, such as Ontario’s Judicial Review Procedure Act, stipulate the particular
provincial court to which judicial review applications should be brought.

40
 CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?
4. Whether the application for JR is within the time limits
• A party should ensure that he or she has not missed any deadlines.
• Some statutes impose time limits within which a party must file an application for judicial review. For example:
• The Federal Courts Act states that a judicial review application from a federal tribunal to the Federal Court
must be made within 30 days of the time the underlying decision or order is first communicated.
• In Alberta, the rules impose a six-month time limit on all applications for judicial review, except habeas corpus
applications.
• Nova Scotia precludes all applications for judicial review after the earlier of six months following the decision,
or 25 days after the decision is communicated to the person.
• In British Columbia, the general time limit is 60 days.

Power to extend
• Courts are often statutorily empowered to extend the time limit for making a judicial review application:
• where there is a reasonable explanation for the delay,
• where no substantial prejudice/hardship would result from such an extension, or
• where the party can demonstrate prima facie grounds for relief.

CHALLENGING A DECISION
IS JUDICIAL REVIEW AVAILABLE?
5. Whether the party has exhausted all other adequate means of recourse for challenging the tribunal’s actions
• The final threshold matter that a party must establish before gaining access to judicial review is that he or she has exhausted all other
adequate means of recourse for challenging the tribunal’s actions. [Harelkin]
• Depending on the tribunal’s enabling statute, this may include almost any of the remedies:
• reconsideration by the same tribunal,
• appeals to internal appellate tribunals
• other intra-agency mechanisms such as grievance arbitration
• appeals to a court.

• However, some factors may render an alternative form of review inadequate (previously discussed)
• Courts will not find existing non-court appeal mechanisms to be inadequate based only on unproven allegations that an appellate tribunal will suffer
from the same errors or biases as the original tribunal.
• Nor can challengers circumvent available appeals in favour of judicial review by consent, or simply by raising apparent issues with the
original tribunal’s procedure or jurisdiction:
• In Canada (Border Services Agency) v. C.B. Powell Limited, [2010] F.C.A. 61, the court stated that “Concerns about procedural fairness or
bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional
circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted …
[T]he presence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts.”

41
 ACCESS TO JUSTICE
• Administrative law is concerned with the everyday practice of administrative justice, not simply the judicial review of
administrative decision making.
• The rule-of-law and the idea of one’s “day in court” have come to characterize “access to justice” as an important concern.
• The rule of law is no less significant in an administrative hearing room or decision-making process than in a courtroom.
• Rights and important interests are often at stake in administrative justice, whether before a human rights tribunal, an
immigration board, or a securities commission. It is far more likely that a person’s rights and important interests will be at stake in an
administrative proceeding than in a judicial one.
• As the Chief Justice of Canada has observed, “[m]any more citizens have their rights determined by these tribunals
than by the courts.” [Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854]

What does access to justice mean in the context of administrative tribunals?

• Access to justice before administrative decision-makers from the perspective of those affected by administrative decisions
requires attention be paid not just to the statutory provisions that empower tribunals, or the court decisions that interpret those provisions, but
also to the everyday practice before the tribunal.
• How tribunals make policy, how tribunal members are appointed, the resources available for parties before tribunals,
and the fairness and quality of administrative justice provided by those tribunals all form part of the core concern of administrative law.
• Access to a decision-maker may make the difference between justice and injustice.

ACCESS TO JUSTICE
Consider the following issues of procedural fairness when access is denied:
1. Access to the tribunal
• How do parties find the tribunal? Is it accessible in person through an office open to the public? Is videoconferencing available for
those unable or unwilling to travel to attend a hearing? Is the tribunal accessible through telephone or Internet services and, if so, are these points of contact made
available in the languages spoken by users of the tribunal?

2. Access to legal or other knowledge necessary to obtain tribunal services.

• How do parties learn what they need to know to be able to contribute to the proceedings and to support their claims? Are the relevant
legislative provisions and regulations setting out the powers of a tribunal publicized to parties? Are the prior decisions of the tribunal available and accessible? Have
guidelines been developed to set out the standards by which decisions will be reached and, if so, have those guidelines been made available to the public? Is tribunal
staff available to assist with filling out forms or preparing a party’s submissions? Again, are guidelines or tribunal staff available in languages spoken by users of the
tribunal?

3. Access to resources needed to navigate tribunal system

• How do people present their positions before the tribunal? Is there a right to state-funded legal representation? Do fees create barriers
and, if so, is there a procedure for waiving fees? Are previous decisions of the tribunal available and, if so, are they in a form that can be searched and sorted by self-
represented parties? Is there access to mediation, dispute resolution, or settlement services? Are interpreters available?

42
 ACCESS TO JUSTICE
The right to an interpreter as a charter right and a right to a fair hearing:
• The right to be heard, in other words, implies a right to understand the case to be met, which in some
circumstances will not be possible unless interpretation and translation services are available.
• Just as “plain language” may facilitate access, so may the capacity of tribunals to provide services and
adjudication in the language spoken by those seeking out the tribunal.
• Since R. v. Tran [1994] 2 S.C.R. 951, the Court has adopted a contextual approach to s. 14 of the
Charter, which provides:
A party or witness in any proceedings who does not understand or speak
the language in which the proceedings are conducted or who is deaf has
the right to the assistance of an interpreter.
• The Court noted that this Charter right is closely linked to the common-law right to a fair hearing.
• The standards developed in Tran would have to be modified to the contexts of administrative
proceedings and note that a spectrum of interpretation and translation rights might be more appropriate to admin contexts.

ACCESS TO JUSTICE
The right to an interpreter as a charter right and a right to a fair hearing:
• The right to an interpreter (and, by extension, to translation of relevant material) in the administrative context was
considered in Filgueira v. Garfield Container Transport Inc. 2006 F.C. 785.
• In that case, the Canadian Human Rights Tribunal considered its own obligation to provide an interpreter to a
complainant alleging discrimination in the workplace.
• The complainant had a bilingual agent assisting with his case. Although this mitigated the complainant’s need and it
was acknowledged that the ruling would have an impact on scarce resources, the tribunal nonetheless ordered that fairness required
that the complainant be provided with an interpreter (for at least part of the hearing).
• A judicial review application of the tribunal’s decision in Filgueira was dismissed. Filgueira is an example of the
principles in Tran being applied flexibly to the realm of administrative adjudication.
• Although the case law answers the question, in part, as to the legal requirements of interpretation and translation
services, it raises a host of others—for example, should tribunals, legal aid, the government, or some other service providers be
responsible for interpreter and translation services.
• The exception to this observation is access to one of Canada’s official languages—in other words, access to French
language tribunal services in English communities, and vice versa, is governed by an additional layer of statutory and, in some cases,
constitutional entitlement.

43
 ACCESS TO JUSTICE
Adequate legal representation:
• Access to administrative also a matter of resources.
• In New Brunswick (Minister of Health and Community Services) v. G.(J.),57 the Supreme Court of Canada affirmed
that the constitutional right to legal assistance extends beyond settings where the jeopardy of an individual is concerned ( this was a
child custody case).
• many provincial legal aid statutes fund legal representation before administrative tribunals.
• For example, in Ontario, those committed to psychiatric facilities who appear before the Ontario Review Board to
argue for release are covered by legal aid certificates, while specialty clinics provide limited representation for eligible claimants before
the Social Benefits Tribunal, the Landlord and Tenant Board, and other administrative bodies.
• Supreme Court, in British Columbia (Attorney General) v. Christie, 2007 SCC 21, held that not every limit on access
is unconstitutional. The Constitution does not mandate a general right to legal representation as an aspect of, or precondition to, the rule
of law. Rather, the right to counsel is limited to instances where life, liberty, and security of the person are affected, as is demonstrated
by ss. 7 and 10(b) of the Charter.
• The decisions of the lower courts were reversed and, as a consequence, the scope of access to justice with
respect to non-criminal proceedings remains unsettled.

ACCESS TO JUSTICE
Fees:
• Regulatory tribunals are sometimes self-funded - the tribunal levies an assessment on regulated individuals
or organizations and funds its adjudicative operations from these levies.
• Although most adjudicative tribunals are free to the parties, the practice of charging fees for making an
application is attracting increasing attention. User fees and costs of any size have the potential to pose a barrier to access to
justice.
• In Polewsky v. Home Hardware Stores Ltd., [2003] O.J. No. 2908 (QL), 109 C.R.R. (2d) 189 (Div. Ct.) the
Ontario Divisional Court recognized that the constitutional principle of access to justice required that small claims court fees be
waived in the context of an individual who otherwise would not be able to bring a case to court.

44
 ACCESS TO JUSTICE
Costs:
• Where the tribunal is deciding a dispute between two or more parties, should the winning parties be able to claim
costs against the losing parties as they can in civil courts? Should the tribunal itself ever be in a position to recover costs? What should
the consequences be when a party is unable to pay costs?
• Statutory procedural codes may expressly provides for tribunals to develop their own costs regimes.
• For example:
• The B.C. ATA - Power to award costs
47(1) Subject to the regulations, the tribunal may make orders for payment as
follows: (a) requiring a party to pay part of the costs of another party or an
intervener in connection with the application; (b) requiring an intervener to pay
part of the costs of a party or another intervener in connection with the
application; (c) if the tribunal considers the conduct of a party has been
improper, vexatious, frivolous or abusive, requiring the party to pay part of the
actual costs and expenses of the tribunal in connection with the application.

• Where costs are available, unless otherwise circumscribed by a tribunal’s enabling legislation, the applicable
principles will be similar to those developed in the civil courts, with the exception of the potential for liability on the part of losing parties to
pay costs directly to the tribunal.

ACCESS TO JUSTICE
• Issues of access to administrative justice are integrated with the broader principles of
administrative law and the everyday practice of diverse tribunals.
• Access relates to process.
• Access to justice includes being able to understand, navigate, and participate in a tribunal’s
decision making.
• Also includes the expectation that the tribunal deliver administrative justice of high quality, which
means that it extends not only to standing, guidelines, fees, and representation, but also to whether decisions are
well reasoned and delivered in a timely fashion.
• Keep in mind that questions of access can be part of procedural fairness determinations.
• Good Segway to Procedural Fairness and Baker

45
 ADMIN LAW – REVIEW
The core function of judicial review of administrative action is
to examine how and why the courts decide to intervene.

1. Procedural fairness: First, is this an issue courts should review and, if so, did the
administrative decision-maker use the proper procedures in reaching a decision?

2. Substantive review: Regarding the decision itself, did the administrative decision-maker
make an error of the kind or magnitude that the court is willing to get involved in?

3. Remedies and the legitimacy of judicial review: If there are procedural or substantive
defects in the decision, should the court intervene and, if so, how?

CHALLENGING ADMIN ACTION/DECISION

INTRO TO PROCEDURAL FAIRNESS

• Recall that people are affected by a wide variety of decisions made on a daily basis by public
authorities (from Cabinet ministers to bureaucrats, tribunals, agencies, boards, commissions, and other public authorities).
• The one thing these decisions have in common is that, in general, they must be made pursuant to
a fair procedure.
• A party to an administrative action may decide to challenge that decision by challenging its
jurisdiction, its procedure, its impartiality, its exercise of discretion or the substance of its final decision.
• The most common means to attack an adverse administrative decision is to impugn the procedure
pursuant to which the decision was made.
• The duty of fairness is concerned with ensuring that public authorities use fair procedures in
making decisions.

46
 CHALLENGING ADMIN ACTION/DECISION
INTRO TO PROCEDURAL FAIRNESS

• Although a successful application for judicial review on procedural fairness grounds may
result in an order quashing the decision and require it to made anew, the decision-maker may still reach
the same decision - or - a new hearing may lead to a different outcome.

• The duty of fairness is not concerned with the fairness of the actual decisions or the
outcome of particular decisions, and does not require that the decisions of public authorities be
considered “fair”.

• When it comes to the common law of procedural fairness or natural justice as required by
s. 7 of the Charter, the court, in reviewing the actions of the tribunal, is not interested in the actual
decision that the tribunal came to in the end (the substance), but in the procedures followed by
the tribunal in coming to the decision.

CHALLENGING ADMIN ACTION/DECISION

INTRO TO PROCEDURAL FAIRNESS

• “Fairness” has become short form for procedural fairness, but it is important not
to lose sight of the essentially procedural character of the duty.

• In general, the duty of fairness requires two things, both of which are modern
restatements of natural justice protections:
(1) the right to be heard, and
(2) the right to an independent and impartial hearing.

47
 CHALLENGING ADMIN ACTION/DECISION
INTRO TO PROCEDURAL FAIRNESS
• The development of a “duty of fairness” is one of the great achievements of modern
administrative law.
• It promotes a better-informed decision-making process, leading to better public policy
outcomes, and helps to ensure that individuals are treated with respect in the administrative process.
• The duty itself is context-specific: its content is articulated having regard to the circumstances
surrounding the relevant decision

• When a decision is being challenged at JR and the allegation is a breach of duty of fairness,
then 2 questions must be considered:

1. Has the threshold for review been met – is a duty owed?

If yes…
2. What does the duty involve in the relevant circumstances – What is the content?

PROCEDURAL FAIRNESS
CHECKLIST

STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

 The threshold test – is a duty of fairness owed?

 Are there any limits?

STEP 2 – DETERMINE THE CONTENT OF THE DUTY

OF FAIRNESS
 What elements of fairness are required in the particular case?

WHERE TO START? CHECK THE SOURCES

 Checklist

48
 SOURCES AND TRIGGERS
OF PROCEDURAL FAIRNESS
SOURCES
 Where does the obligation for procedural fairness come from? (ie/ statute, common law,
Charter etc)

TRIGGERS or THRESHOLDS
 What requirements need to be met before procedural fairness is owed?
• The specific trigger or threshold will depend on the source

SOURCES AND TRIGGERS OF

PROCEDURAL FAIRNESS
SOURCE TRIGGER / THRESHOLD
Statute / Regs The legislation will set out the trigger or threshold for PF

General Procedural Statute The legislation will set out the trigger or threshold for PF

Common Law -> Nicholson- public authority making an administrative

decision (not legislative) which affects the rights, privileges or
interests of an individual (no longer a quasi judicial req’t)

-> Knight – 3 prong test (nature of decision, relationship, effect)

Charter Section 7 - Decisions that go to the life, liberty and security of
the person
-> Singh – 3 questions
Bill of Rights Sections 1(a) and 2(e)
Legitimate Expectation A public authority makes a promise to follow a certain
procedure, in respect of an interested person – and they relied
and acted upon that promise

**SUBJECT TO LIMITATIONS AND EXCEPTIONS

49
 SOURCES OF PROCEDURAL FAIRNESS
The obligation that fair procedures are followed in administrative decision-
making (including content), may be found in a number of sources:

1. The Enabling Statute and Subordinate Legislation

2. A General Procedural Statute (i.e.. SPPA)

3. The Common law duty to act fairly - where the enabling statute is silent or only provides for a
minimal procedure or expressly denies certain procedural safeguards

4. Constitutional and Quasi Constitutional – The Charter and the

Canadian Bill of Rights

5. Legitimate Expectation

NOTE: THE CONTENT OF THE DUTY IS FLEXIBLE AND CONTEXT-SPECIFIC

SOURCES OF PROCEDURAL FAIRNESS

1. ENABLING STATUTE AND SUBORDINATE LEGISLATION

• The enabling statute may prescribe detailed procedural requirements that provide a
complete procedural code.
• Thus, in determining whether an affected individual is entitled to procedural fairness, the
first place to look is the constituent statute.
• If the enabling statute provides detailed procedures, this suggests to the courts that the
legislature intended to limit or oust common law procedural protection.
• For example: the Canadian Human Rights Act.
• In addition to prescribing specific procedures in the enabling statute, the legislature
may statutorily delegate to the minister, or to a board or tribunal the power to enact regulations or rules
which set out procedural requirements that the agency must follow - the Canadian Human Rights Rules
of Procedure.

50
 SOURCES OF PROCEDURAL FAIRNESS
1. ENABLING STATUTE AND SUBORDINATE LEGISLATION

Tribunal Rules, Policies, and Guidelines:

• Statutes, regulations, and statutory procedural codes are the obvious sources of a tribunal’s
authority. These are “rules” that have been imposed on administrative tribunals from the outside—that is, the
common law by courts and statutes and regulations by the legislature and the executive, respectively.
• There may also be rules promulgated by tribunals themselves. Even the most informal of tribunals
has likely engaged in rule making in a number of areas.
• Tribunal rules typically deal with basic topics: The circumstances in which the tribunal will grant an
adjournment, service of documents, motions, and prerequisites for reconsideration of decisions.
• Tribunals also have various other sources of internal law, set out in policies, directives, guidelines,
precedents, procedural orders, or notices of hearing. Often, such materials may be found only at the tribunal’s
offices.

SOURCES OF PROCEDURAL FAIRNESS

2. GENERAL PROCEDURAL STATUTES
• Some provinces have statutory procedural codes that establish procedural requirements for administrative
proceedings:
• Alberta’s procedural code (the Alberta Administrative Procedures and Jurisdiction Act) does not contain a provision
that provides for its general applicability. Instead, the tribunals that are subject to it are designated by regulation. Its provisions are not
comprehensive.
• In contrast, Quebec’s procedural code (the Quebec Administrative Justice Act) is detailed. There are different
procedural requirements for “adjudicative” and “administrative” tribunals.
• British Columbia’s procedural code (the B.C. Administrative Tribunal Act) empowers tribunals to make their own rules.
There are few procedural requirements prescribed by the ATA. Reference must be had to the tribunal’s enabling statute or statutes to ascertain
which, if any, of the procedural provisions of the ATA apply.
• Ontario’s procedural code (Statutory Powers and Procedures Act) also recognizes the differences among
administrative tribunals. The SPPA applies to the exercise of a “statutory power of decision” where a hearing is required by or under a statute or
“otherwise by law.”

• Specific procedural provisions are often set out in a tribunal’s enabling legislation.

51
 SOURCES OF PROCEDURAL FAIRNESS
2. GENERAL PROCEDURAL STATUTES

Interaction between general procedural statutes and the enabling

legislation:

• In addition to minimum standards established by a general procedural statute, (like the SPPA), it
is not unusual for the enabling legislation or regulations to particularize further procedural duties, like notice
requirements and rights to make submissions for particular tribunals.

• It is very important to ascertain which procedures apply, those mandated under the enabling
statute or those under the general procedure code.

• The application of a general procedural code may be modified or limited by the public
authority’s enabling statute.

SOURCES OF PROCEDURAL FAIRNESS

2. GENERAL PROCEDURAL STATUTES

 EXAMPLE SPPA and The Ontario Human Rights Code

1. With respect to the Ontario’s SPPA, there is first the question of whether it applies to a specific
public authority at all
• To answer - must have regard to ss. (1) and (3) of the SPPA.

2. If the SSPA does apply, the next inquiry is the enabling statute
• whether it excludes the operation of the SPPA which otherwise prevails - see 32(1) of the
SPPA.

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 SOURCES OF PROCEDURAL FAIRNESS
2. GENERAL PROCEDURAL STATUTES
The SPPA – s. 3
Application of Act
3. (1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the
Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.
R.S.O. 1990, c. S.22, s. 3 (1); 1994, c. 27, s. 56 (5).
Where Act does not apply
(2) This Act does not apply to a proceeding,
(a) before the Assembly or any committee of the Assembly;
(b) in or before,
(i) the Court of Appeal,
(ii) the Superior Court of Justice,
(iii) the Ontario Court of Justice,
(iv) the Family Court of the Superior Court of Justice,
(v) the Small Claims Court, or
(vi) a justice of the peace;
(c) to which the Rules of Civil Procedure apply;
(d) before an arbitrator to which the Arbitrations Act or the Labour Relations Act applies;
(e) at a coroner’s inquest;
(f) of a commission appointed under the Public Inquiries Act, 2009;
(g) of one or more persons required to make an investigation and to make a report, with or without recommendations, where the report is for the information or advice
of the person to whom it is made and does not in any way legally bind or limit that person in any decision he or she may have power to make; or
(h) of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned. R.S.O. 1990, c. S.22, s. 3
(2); 1994, c. 27, s. 56 (6); 2006, c. 19, Sched. C, s. 1 (1, 2, 4); 2009,
c. 33, Sched. 6, s. 87.

SOURCES OF PROCEDURAL FAIRNESS

2. GENERAL PROCEDURAL STATUTES
The SPPA – s.32
Conflict
32. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under
it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or
by-laws made under such other Act which conflict therewith. R.S.O. 1990, c. S.22, s. 32; 1994, c. 27, s. 56 (42).

The OHRC - s. 42 and s. 43

Statutory Powers Procedure Act
42. (1) The provisions of the Statutory Powers Procedure Act apply to a proceeding before the Tribunal unless they
conflict with a provision of this Act, the regulations or the Tribunal rules. 2006, c. 30, s. 5.
Conflict
(2) Despite section 32 of the Statutory Powers Procedure Act, this Act, the regulations and the Tribunal rules prevail
over the provisions of that Act with which they conflict. 2006, c. 30, s. 5.
Tribunal rules
43. (1) The Tribunal may make rules governing the practice and procedure before it. 2006, c. 30, s. 5.

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 SOURCES OF PROCEDURAL FAIRNESS
3. THE COMMON LAW
• The duty of fairness is a common law concept and as such, may be limited or overridden by
contrary legislative instructions and procedural requirements set out in the statute
• The common law duty of fairness is also subject to compliance with the Charter.
• The common law cannot prevail over a statute.
• However, the courts have always required clear statutory direction to limit or oust the
procedural protection provided by the common law.

• Recall that the duty of fairness is concerned with ensuring that public authorities use fair
procedures in making decisions.
• The requirements of this duty are independent of the substantive matter in issue and the denial of
a right to procedural fairness must always render the decision invalid.
• This is so whether it may appear to a reviewing court that the hearing may or may not have
resulted in a different decision.

SOURCES OF PROCEDURAL FAIRNESS

3. THE COMMON LAW

From ‘Natural Justice’ to Fairness:

• The common law principles of procedural fairness provide that a person affected by a public
authority’s decision is entitled to:
• (1) the right to be heard, and
• (2) the right to an impartial and independent hearing.

• The “duty of fairness” came to replace natural justice as the organizing principle in administrative
law and, as a result, there is no longer any reason to differentiate between the two concepts.

54
 SOURCES OF PROCEDURAL FAIRNESS
3. THE COMMON LAW

• The courts willingness to impose hearing requirements on administrative decision makers

depended on the nature of their DM power
• Those DMs that exercised judicial or quasi-judicial functions were required to comply with the
rules of natural justice but those exercising purely administrative functions were not
• This approach changed with the leading case of Nicholson – a case that dealt with the dismissal
of a probationary police officer - and today, it applies to a much broader spectrum of decisions

SOURCES OF PROCEDURAL FAIRNESS

3. THE COMMON LAW

Today -
Rules of Natural Justice & Procedural Fairness are synonymous

• The duty of fairness applies across the spectrum of decisions that public authorities
may make and the requirements of the duty vary in accordance with the relevant circumstances (context).

• An Agency/Decision maker must act fairly when making a decision that affects
someone’s rights, privileges or interests.

• Characterization of the process or decision as judicial/quasi judicial is not as relevant.

• Courts look at whether the protection provided in particular circumstances was

adequate, courts are not looking for an ideal standard.

55
 SOURCES OF PROCEDURAL FAIRNESS
What is the relationship between statutory procedural codes and the common
law?
• It is important to recognize that clear legislative restrictions (in the general or enabling statute) will oust the
procedural protections that would typically be afforded at common law.
• In other words, if a tribunal’s enabling statute expressly disavows any right to a hearing, the common law does not
override express statutory language and no hearing will be required BUT…courts tend to narrowly interpret rights-limiting statutory
provisions.
• The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration) established
the modern common-law approach to the duty of fairness.
• Baker attempted to balance:
 the need to give effect to legislative intention in crafting administrative processes (which include accessibility,
efficiency, informality and cost), with
 the need to ensure that those processes protect individual interests.

• Where an enabling statute expressly limits rights/procedure, only the Charter or constitutional rights can override
legislative restrictions.

SOURCES OF PROCEDURAL FAIRNESS

4. CONSTITUTIONAL AND QUASI-CONSTITUTIONAL
Recourse to the Charter or Bill of Rights is limited and may arise in
3 main circumstances:

1. Where the statute expressly denies certain procedural safeguards or provides a lower level of
safeguards, leaving no room for common law supplementation.

• In such case, only constitutional or quasi-constitutional norms may override the statute and
mandate more significant procedural protections.

2. These constitutional / quasi norms may provide procedural protections where none previously
existed.

3. They may mandate a higher level of procedural protections than common law procedures.

• In both these latter cases, procedural protection is offered beyond that recognized at
common law.

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 SOURCES OF PROCEDURAL FAIRNESS
4. CONSTITUTIONAL AND QUASI-CONSTITUTIONAL
Canadian Bill of Rights

• Only applies to federal decision makers

• Relevant sections for admin law – sections 1(a) and 2(e):
• Section 1
It is hereby recognized and declared that in Canada there have existed and
shall continue to exist without discrimination by reason of race, national
origin, colour, religion or sex, the following human rights and fundamental
freedoms, namely,

• (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right
not to be deprived thereof except by due process of law;

• Section 2(e)
• [N]o law of Canada shall be construed or applied so as to … deprive a person of the right to a fair
hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations

SOURCES OF PROCEDURAL FAIRNESS

4. CONSTITUTIONAL AND QUASI-CONSTITUTIONAL

Charter - part of the Constitution - guarantees basic rights and

freedoms

Can impose fairness requirements on agencies by:

1. Striking down statutory provisions that weaken fairness protections; or

2. Courts can read into statute requirements to follow procedures that give effect to rights and
freedoms set out in the Charter

Applies to federal and provincial governments:

BUT whether the Charter applies to a specific body will depend on

1. The extent of government control over the body

2. The extent to which the body carries out functions that are governmental in nature
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 SOURCES OF PROCEDURAL FAIRNESS
4. CONSTITUTIONAL AND QUASI-CONSTITUTIONAL

The Charter as compared to Admin Law

• The Charter guarantees certain rights and freedoms and can limit the decision making powers of
the legislatures and sometimes the procedures of DMs and courts.

• Purpose of admin law – prevent DM from abusing power and acting unfairly but admin law does
not apply to the statute making powers of the legislature or power of the courts

• Charter can be used to prevent abuse and unfairness in admin actions

• Admin law used to limit or strike down actions of DMs, policies and procedures

• Successful Charter arguments can strike down the law / statute itself

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SOURCES OF PROCEDURAL FAIRNESS

4. CONSTITUTIONAL AND QUASI-CONSTITUTIONAL
• The Charter protects several areas of fundamental freedoms that have overlap with admin law

• The Charter provides for 2 classes of rights pertaining to procedural fairness

 Penal Rights – addressed by ss. 9, 11 and 13 – usually decided by the courts – impose duties on
courts to act fairly – usually not available to enhance common law or statutory fairness requirements by agencies

 Non-Penal Rights – addressed by ss. 7, 8 and 14 – apply to when administrative law principles
apply – where gov’t conduct affects a person’s right to fair treatment

NOTE – You need to focus on section 7 (or Bill of Rights) according

to syllabus.
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 SOURCES OF PROCEDURAL FAIRNESS
4. CONSTITUTIONAL AND QUASI-CONSTITUTIONAL

Section 7 - Right to: life, liberty, security of person

• Government action will be invalidated if the action:

1. violates principles of fundamental justice
2. threatens life/liberty/security of persons affected

• To apply, need to consider 2 conditions:

• Condition #1 - What is fundamental justice ?

• Condition #2 - threatens life/liberty/security of persons affected

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SOURCES OF PROCEDURAL FAIRNESS

5. LEGITIMATE EXPECTATIONS

• In certain circumstances, certain fairness procedures will be required because of

expectations generated in a person affected by a decision.
• If a public body conducts itself in a way that gives expectations of acting a certain
way, then it must continue to act that way unless its statute changes so that expectation can no longer be
expected

• Emphasis is on process, not the result

• Doctrine applies only where

1. some level of procedural fairness required by reason of statute or common law, and
2. where expectation of more procedures was generated by assurances or conduct of
a public official.

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 SOURCES OF PROCEDURAL FAIRNESS
5. LEGITIMATE EXPECTATIONS
Legitimate expectation of procedural fairness applies:
• “When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it
should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.” In this way the courts
have found procedural fairness through a promise by an ADM. There are requirements for what constitutes a legitimate expectation.
Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 SCR

The test is:

• A public authority makes a promise,
• That promise is to follow a certain procedure,
• In respect to an interested person, and
• They relied and acted upon that promise

According to C.U.P.E. v. Ontario (Minister of Labour), if the promise is clear, unambiguous and
unqualified representation as to a procedure then it creates a legitimate expectation. This
applies also to an established practice or conduct of a given ADM.
Legitimate expectation will not apply when dealing with a legislative decision, promises that
conflict with statutory duties, and substantive promises

SOURCES OF PROCEDURAL FAIRNESS

5. LEGITIMATE EXPECTATIONS
• Doctrine has no application to “purely legislative functions” which are defined as including a
purely ministerial decision, on broad grounds of public policy (Reference re Canada Assistance Plan).
• In Reference re Canada Assistance Plan [1991], the SCC held that the doctrine of legitimate
expectations exists but cannot be used to create substantive rights. Rules governing procedural fairness do not
apply to legislative bodies performing purely legislative function.
• Regulation stated that federal govt pays 50% and if that changes, it’s b/c parties
consent or one party gives the other party notice about the change.
• Parliament unilaterally amended plan to reduce amount from 50% to 5% and gave
no notice.
• BC argued that govt could not amend b/c of legitimate expectation of amendments only
upon consent.

• In Furey v. Roman Cath. School Board [1991] Nfld, Guidelines were not followed, and a
school was closed.
• However, the court held that there was no evidence that applicants believed that
past practice would have been followed or that he actually expect to be consulted

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 SOURCES OF PROCEDURAL FAIRNESS
5. LEGITIMATE EXPECTATIONS
Haoucher v. Minister (Immigration & Foreign Affairs) [1990] Aust
• Statute empowered minister to deport non-citizens convicted of criminal offences
• If tribunal recommends to minister that deportation should be revoked, minister would follow it
unless there are exceptional circumstances and strong evidence
• Minister overturned non-deportation recommendation w/out seeking any input from deportee
• Although minister not bound to follow policy, policy gave rise to 2 forms of legitimate expectation
(1) No one would be deported except in accordance w/ policy,
(2) Order to revoke deportation there would have to be strong evidence and exceptional
circumstances

• Holding - Court pointed out that legitimate expectation to a benefit is not a right to that benefit.
But since there is a policy you should be informed of basis on which you’re going to lose, Applicant should at least
had opportunity to persuade minister that recommendation of tribunal should be followed. Court sent matter back to
minister to be dealt w/ according to policy.

SOURCES OF PROCEDURAL FAIRNESS

5. LEGITIMATE EXPECTATIONS
In general, two approaches have been taken
 some judgments seem to presume that legitimate expectations defines the content of the
duty of fairness
 others treat legitimate expectations as a separate ground of review, in addition to fairness
In Qi v. Canada (Minister of Citizenship and Immigration)
• Applicants were called to an interview with an immigration officer to determine whether they
were unlawfully in Canada, after they neglected to renew their visitors’ visas.
• In a letter advising them of the interview, they were told they could have counsel present.
• Representative, although allowed to attend, was not permitted to speak or make
representations at the interview.
• The court held that implicit in the statement that counsel could be present was a promise that
the representative could participate in the interview. Since the minister’s letter gave rise to a legitimate expectation
that counsel could participate, the duty of fairness required that the promise be acted upon.
http://www.ohlj.ca/archive/articles/35_1_wright.pdf

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 SOURCES OF PROCEDURAL FAIRNESS
5. LEGITIMATE EXPECTATIONS

• Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), [2001] 2
S.C.R. 281

Is this case a possible way that legitimate expectations as to substantive

outcomes can be enforced? - Minister could not move away from an earlier
"decision"
• Health Minister promised the Centre to issue a permit after an upcoming move to Montreal. After the move the Minister
refused to issue the permit and did not hear submissions. The Centre brought an action for mandamus asking Court to order the Minister to issue
the permit.
• The Minister’s failure to extend even minimal procedural fairness to the Center should result in the setting aside of his decision
to refuse the application for a modified permit. The Center had no notice that the Minister was about to reverse his position, or the reasons for reversal,
and no opportunity to present argument as to why the Minister’s earlier and long-standing view that the public interest favoured a modified Center should
prevail.
• The Court of Appeal allowed the Center's appeal and ordered the Minister to issue the promised permit, applying the
doctrine of public law promissory estoppel.

SOURCES OF PROCEDURAL
FAIRNESS
5. LEGITIMATE EXPECTATIONS
Mount Sinai Hospital Centre v. Quebec (Minister of Health
and Social Services), [2001] 2 S.C.R. 281
• The availability and content of procedural fairness are generally driven by the nature of the
applicant’s interest and the nature of the power exercised by the public authority in relation to that interest.
• The doctrine of legitimate expectations, on the other hand, looks to the conduct of the public
authority in the exercise of that power including established practices, conduct or representations that can be
characterized as clear, unambiguous and unqualified.
• The expectations must not conflict with the public authority’s statutory remit. Although the doctrine of
legitimate expectations is limited to procedural relief, it must be acknowledged that in some cases it is difficult to
distinguish the procedural from the substantive.

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 SOURCES OF PROCEDURAL
FAIRNESS
5. LEGITIMATE EXPECTATIONS
Mount Sinai Hospital Centre v. Quebec (Minister of Health and
Social Services), [2001] 2 S.C.R. 281
• Estoppel may be available to give substantive relief against a public authority, including a Minister, in narrow
circumstances.
• The requirements of estoppel go well beyond the requirements of the doctrine of legitimate expectations. All the
elements of private law promissory estoppel are present in this case. However, public law promissory estoppel requires an additional
appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. Circumstances that might otherwise create
an estoppel may have to yield to an overriding public interest expressed in the legislative text.
• The wording of the particular statutory power in question and the status of who wields it is important. Section 138
mandates the Minister in broad terms to act in the public interest, and if the public interest as he defines it is opposed to the award of the
modified permit, then a court should not estop the Minister from doing what he considers his duty.

PROCEDURAL FAIRNESS
THE THRESHOLD QUESTION
• The DMs enabling statute is the starting point for determining what procedural protections are
available. The statute should also set out what trigger or threshold is required for the procedure to apply.

• Whether a general procedural statute, the common law or constitutional sources can
supplement the procedures set out in the enabling statute, will depend on whether the thresholds for their
application has been met.

• The threshold for the application of common law procedural fairness requires greater
examination.

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD

STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

 The threshold question: Is this the kind of decision that should attract some kind of
procedural right?

• At this stage, the court is not asking what those rights would encompass, but only the preliminary
question of whether there should be any entitlement to procedural fairness at all.
• The court is asking whether it should review the administrative decision-maker’s procedures or whether
it is more appropriate to conclude that whatever the decision-maker decides to do by way of procedure is sufficient.
The Test Today
• Subject to some exceptions, today it is well established that the duty of fairness applies to the decisions of
public authorities (for example, executive actors, tribunals, and officials acting pursuant to statutory authority)—that affect an
individual’s rights, privileges, or interests.

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD
Historically
• Unless an agency was exercising a judicial or quasi-judicial function, there was no right of natural justice (natural justice =
fairness).
• “Judicial” and “quasi-judicial” decisions were required to be made in accordance with the rules of natural justice – BUT …
legislative or administrative decisions did not give rise to a right
• Review proceedings focused on the nature of the power exercised rather than the impact of its exercise and courts had a
lot of difficulty defining actions that were judicial/quasi-judicial vs. legislative/administrative.
• judicial/quasi dealt with ‘rights’ determined by objective standards
• legislative/admin decisions dealt more with ‘privileges and interests’

• To obtain procedural protection, an applicant had to convince a court that a particular decision could properly be
characterized as judicial or quasi-judicial.
• A successful applicant would then receive the full range of natural justice protection.
• An unsuccessful applicant would receive no procedural protection at all (an all or nothing approach)

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD
Summary of Some Key Cases
Nicholson [1979] - probationary constable
• Still discussed judicial/quasi-judicial giving rise to Natural Justice BUT … also recognized that if it was legislative/admin decision
you were entitled to Fairness.
• Need fairness b/c of difficulty in distinguishing between judicial/quasi, legislative and admin decision/function
• Recognized - as a general common law principle, a duty of procedural fairness lying on every public authority making an
administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual

Martineau [1980] – prison inmate case

• Courts should not treat natural justice and procedural fairness as two different standards
• Duty of procedural fairness applied in principle to disciplinary proceedings within a penitentiary

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD
Summary of Some Key Cases
Tapirisat [1980] & Cardinal [1985] – Prisoner put into segregation
• Re-affirmed that admin decisions must also be provided fairness except if decision is legislative.
• “[A] duty of procedural fairness [lies] in every public authority making an administrative decision which is not of a legislative
nature and which affects the rights, privileges and interest of an individual “ (Cardinal)
Knight [1990] – Director of Education employment terminated
• 3 prong test -> The existence of a general duty of fairness depends on: (i) the nature of the decision to be made by the
administrative body; (ii) the relationship existing between that body and the individual; and (iii) the effect of that decision on the individual's rights.
• Not all administrative bodies, however, are under a duty to act fairly. Decisions of a legislative and general nature can be
distinguished from acts of a more administrative and specific nature which do not entail such a duty. Further, decisions of a final nature may
attract this duty unlike decisions of a preliminary nature.
Wells [1999] – Member of public utilities board terminated
• Re-affirmed the exclusion of legislative / general decisions and confirmed coverage of ‘specific / admin type decisions’
protected under fairness doctrine.

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD – NICHOLSON
Leading case - Nicholson v. Haldimand-Norfolk Police Commissioners, where
the SCC abandoned the all or nothing approach.
• In Nicholson, a probationary constable was summarily dismissed 15 months into his service. He
was not given any reasons for his dismissal, nor any prior notice, nor allowed to make any representations before to his
dismissal.
• Under the applicable legislation, police officers could not be penalized without a hearing and right to
appeal, except within eighteen months of becoming a constable.
• Nicholson was not entitled to a hearing before his dismissal, nor could his dismissal be
characterized as the sort of “judicial or quasi-judicial” decision to which natural justice protection applied.
• It was an administrative matter and, as such, Nicholson would not have been entitled to any
protection at all.
• A 5:4 majority of the Supreme Court held that a general duty of “procedural fairness” applies to
administrative decisions.
• The Nicholson Court concluded that fairness required that the officer should have been told why his
services were no longer required and given the opportunity (whether oral or in writing, as the Board might determine) to
respond.

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD – NICHOLSON

• In Nicholson, the Court considered that the classification of statutory functions as

judicial, quasi-judicial or administrative is often very difficult.
• To endow some with procedural protection and deny others any at all would work
injustice when the results of statutory decisions raise the same serious consequences.
• The Court pointed out that this was a case where the consequences to Nicholson
were very serious in respect of his desire to remain in office.
• This case marks the gradual expansion of the duty of fairness to administrative
DMs

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD - KNIGHT
Procedural fairness following Nicholson was considered
and expanded in Knight v. Indian Head School Division.
• In Knight, the board of education dismissed its director of education who had refused
a contract renewal offer for a shorter term.
• The director, whose position was at pleasure (appointed), sued for wrongful
dismissal, arguing that he was entitled to procedural fairness before being dismissed.
• The Court first decided that the Board need not show cause for the dismissal either
under the contract of employment or under the Education Act.
• But the fact that the director’s employment could be legally dismissed without cause
does not mean that the procedure can be arbitrary.

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD – KNIGHT

3 Prong Test
In order for procedural fairness to apply at common-law, certain
requirements must be met. According to L'Heureux-Dubé J. they are:
1. Nature of the decision to be made by the administrative body:
• (a) Administrative vs. Legislative use of power Administrative powers attract procedural fairness while
legislative powers do not
• (b) Final decision maker Preliminary or interlocutory decisions don’t invoke procedural fairness

2. Relationship existing between that body and the individual; and the exercise of power is pursuant to statute
(or prerogative) (executive action)
3. Effect of that decision on the individual's rights (privileges / interests) - Low threshold requiring only that
applicant have an interest and that it be impacted
If all of these criteria are met then procedural fairness is triggered and the
court will decide what procedures the applicant is due.

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD – KNIGHT

Three prong test:

The duty of fairness can only be invoked where the
circumstances satisfy a threshold based on three factors:
1. The nature of the decision must be sufficiently administrative or quasi-judicial
• Inuit Tapirisat: decisions that are of a "legislative or general nature" which are based on broad
policy issues rather points of law are not likely to warrant a duty of fairness
• Homex: municipal by-laws will not fall under the "legislative" exemption when a general law targets
specific individuals

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD - KNIGHT
• As to the nature of the decision, the Court reaffirmed Nicholson in that there is no need to
characterize a decision as judicial, quasi-judicial or administrative for the purpose of the duty of fairness.
• However, the Court pointed out that not all administrative bodies have a duty to act fairly.
• Decisions of a legislative or general nature, as opposed to acts of a more administrative and
specific nature, do not have a duty of fairness i.e. the “legislative” exemption.
• Although the courts have not explained what is meant by “legislative, it appears that primary
legislation, federal or provincial, is not subject to a duty of fairness. Not because it has no impact on rights or
interests, but because it is determines policies with broad application.
• Further, the concept of the separation of powers between legislative and judicial demands this
result.
• However, the legislation may be challenged for lack of procedural fairness constitutionally under the
Charter or the Canadian Bill of Rights.

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD – KNIGHT

2. The relationship between the administrative decision-maker and the

individual claimant
• Consider the structure and nature of the relationship and asks whether there
are procedural safeguards in the relationship
• If individuals expect to receive consistent treatment from the government with
regard to their rights, interests, or privileges, the doctrine of legitimate expectations may give
the claimant a right to procedural fairness
• Canada Assistance Plan: "doctrine of legitimate expectations" protection
doesn't apply to questions of pure policy
• Mount Sinai: relief based on legitimate expectations is limited to procedural
relief, not substantive relief

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD – KNIGHT

3. The nature of the interest and the impact of the decision must be significant
- This mostly concerns what is at stake amongst the parties
• Dairy Producers: there is no duty to act fairly in the early investigative stages of
proceedings, as the duty only applies to decisions or final dispositions of a matter
• Re Abel: Duty may apply to interim decisions where the impact on the claimant is
so significant that the decision amounts to a final disposition of the matter
• Irvine: Greater procedural rights at later stages can offset hardship suffered from
lesser procedural fairness rights at earlier stages (ie: info-gathering for law enforcement)

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD - KNIGHT
As to the impact of the decision, there is a right to procedural fairness
only if the decision is a significant one and has an important
impact on the individual.
• For Example: A high standard of justice is required when the right to continue in one’s profession
or employment is at stake.

The finality of the decision is also a factor to consider.

• If the decision is interim or preliminary such as investigations or advisory, no duty of fairness is
owed.
• A decision that finally disposes of the matter will attract the duty.
• In Knight, the Board’s decision was final and specific, directed as it was to the termination of the
director.
• The Court concluded that the nature of the decision, the relationship between the parties and
the impact on the director was such that there was a general duty on the Board to act fairly.

PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD - KNIGHT
• Having come to this conclusion, the Court then went on to consider whether there was anything in the
statutory framework that would modify or limit this right.
• The Court reviewed the Education Act and the employment contract and concluded there was
nothing in the Act to limit or modify the duty of fairness.

• The next question for the Court was the content of the duty, pointing out that procedural fairness and
its content is to be decided in the context of each case.
• In this case, the Court considered the fact that the director could be dismissed at pleasure - for this
reason the content would be minimal.
• What would be required is notice of the reasons for the Board’s decision and an opportunity to be
heard.
• The Board made itself sufficiently available for discussion through meetings with the director and his
lawyer and each party’s concerns were known to each other. The director knew the reasons for dismissal and was given the
opportunity to present his position to the Board.

• The Court concluded that the Board had satisfied its duty of procedural fairness.

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 PROCEDURAL FAIRNESS
THE COMMON LAW THRESHOLD
STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

The threshold test – is a duty owed?

• Nicholson – no need to differentiate between judicial/quasi judicial vs. administrative

Also consider 3 prong test - from Knight:

1. Nature of decision Is it preliminary or final? Investigative vs. determinative?

2. The relationship between the (public) body and the individual must be based on an exercise of power
in pursuant to a statute (or prerogative power).

3. The decision must affect the claimant's rights, privileges or interests (also Cardinal)

Are there any limits?

LIMITATIONS ON THE APPLICATION OF

THE DUTY OF FAIRNESS
• Subject to some exceptions, discussed below, it is well established that the duty of fairness applies
to the decisions of public authorities—for example, executive actors, tribunals, and officials acting pursuant to
statutory authority—that affect an individual’s rights, privileges, or interests.
There are limitations (or exceptions) on the reach of the duty:
1. The Duty Applies to Decisions–Not to Investigations/ Advisory Processes
2. The Duty Does Not Apply to Legislative Decisions
• Policy decisions
• Subordinate legislation
• Cabinet and ministerial decision may be exempt
3. The Duty Does Not Apply to Public Office Holders Employed Under Contracts
4. The Duty May Be Suspended or Abridged in the Event of an Emergency

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 LIMITATIONS ON THE APPLICATION OF
THE DUTY OF FAIRNESS
1. The Duty Applies only to Decisions

• The duty of fairness governs decision-making processes, which is another way of saying that the
duty applies only in contexts in which decisions may be made.
• In principle, it does not apply to investigations or advisory processes that may occur prior to the
commencement of a formal decision-making process.
• Recall Knight -If the decision is interim or preliminary such as investigations or advisory, no duty of
fairness is owed (subject to limited exceptions).

LIMITATIONS ON THE APPLICATION OF

THE DUTY OF FAIRNESS
2. The Duty Does Not Apply to Legislative Decisions – Legislative Exemptions

• The Supreme Court of Canada has long insisted that the duty of fairness does not apply to legislative
decisions or functions.
• In Re Canada Assistance Plan (B.C.), the Court expressed the point categorically: “[T]he rules governing
procedural fairness do not apply to a body exercising purely legislative functions.”
• The Court has never explained what it means by “legislative” functions, but it is clear that primary legislation,
whether passed by Parliament or a provincial legislature, is not subject to the duty of fairness.
• The rationale for exempting legislative functions from the duty of fairness was reiterated in Wells v.
Newfoundland where Wells’ argument that he should have been accorded procedural fairness was rejected summarily by the
Court, which stated as follows:
[L]egislative decision making is not subject to any known duty of fairness.
Legislatures are subject to constitutional requirements for valid law-making, but
within their constitutional boundaries, they can do as they see fit. The wisdom and
value of legislative decisions are subject only to review by the electorate.

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 LIMITATIONS ON THE APPLICATION OF THE
DUTY OF FAIRNESS
Are Cabinet and Ministerial Decisions Covered by the Legislative Exemption?
• Cabinet and ministerial decisions are not subject to the legislative exemption per se, but it will often be easy to characterize Cabinet
and ministerial decisions as legislative in nature and, as a result, they will be exempted from the duty.
• Decisions involving particular individuals are most likely to give rise to the application of the duty of fairness to Cabinet and
ministerial decisions, but, as Idziak demonstrates, even in this context the Court may be reluctant to impose procedural requirements for a variety of
reasons.
Are Policy Decisions Covered by the Legislative Exemption?
• The rationale for exempting policy decisions from the duty is similar to that of formal legislative decisions. Both are inherently
political in nature and are, in principle, subject to political accountability.
Is Subordinate Legislation Covered by the Legislative Exemption?
• Political self-interest often ensures that consultation occurs prior to the passage of legislation, even where there is no formal
requirement for it. There will, however, be times when it is not in the political interest to consult before legislating and the argument for fairness protection
in these contexts may seem strong, especially with regard to subordinate legislation.
• In in these contexts may seem strong, especially with regard to subordinate legislation. Arguably, there is less reason to be
concerned about judicial interference in the political process where subordinate legislation is concerned because subordinate legislation is made pursuant
to executive authority and democratic accountability may be minimal

LIMITATIONS ON THE APPLICATION OF THE

DUTY OF FAIRNESS
3. The Duty Does Not Apply to Public Office Holders Employed Under Contracts

• In the past there was a distinction between those who held public office and persons on contract – now post
Dunsmuir there is no distinction.
• Where a dismissal decision is properly within the public authority’s powers and is taken pursuant to a
contract of employment, there is no compelling public law purpose for imposing a duty of fairness

4. The Duty May Be Suspended or Abridged in the Event of an Emergency

• The duty of fairness requires duties that must be observed before the decision is made.
• However there may be public safety concerns which demand an immediate decision regardless of the duty of
fairness. Courts may defer compliance with procedural fairness until after the decision is made. [Cardinal v. Director of Kent Institution].
• It is not clear whether fairness is not required in emergency situations or whether the content is minimal

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 THE THRESHOLD QUESTION
BILL OF RIGHTS
Recourse to the Charter or Bill of Rights is limited and may arise in
3 main circumstances:

1. Where the statute expressly denies certain procedural safeguards or provides a lower level of
safeguards, leaving no room for common law supplementation.

 In such case, only constitutional or quasi-constitutional norms may override the statute
and mandate more significant procedural protections.

2. These constitutional /quasi norms may provide procedural protections where none previously
existed.

3. They may mandate a higher level of procedural protections than common law procedures.

• In both these latter cases (point 2 and 3), procedural protection is offered beyond that
recognized at common law.

THE THRESHOLD QUESTION

BILL OF RIGHTS
• Even where other protections are available (for example, the Charter), the Bill of Rights may
nonetheless provide a preferable route to a remedy in light of the distinctive features of the due process and fair
hearing provisions – such as the due process protection over the enjoyment of property.
• The Bill of Rights threshold of “rights and obligations” for invoking the “fair hearing” protection
under section 2(e) is far broader than the Charter
• There is no “limiting clause” such as section 1 of the Charter.
• Supreme Court in Singh v. Canada - three justices of a six-justice majority relied on section 2(e) of
the Bill of Rights in ruling inoperative a statutory scheme which failed to provide refugee claimants with an oral
hearing
• the other three justices in the majority relied on section 7 of the Charter.

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 THE THRESHOLD QUESTION
BILL OF RIGHTS
• In MacBain v. Canada (Human Rights Commission), the Federal Court of Appeal explored the
reach of section 2(e) in more depth, and used the “fair hearing” protection to rule inoperative provisions of the
Canadian Human Rights Act which permitted the Chair of the Canadian Human Rights Commission to select
Tribunal members to hear a complaint which the Commission was also charged with investigating and prosecuting.

• See more recent cases:

• Authorson v. Canada
• Bell Canada v. Canadian Telephone Employees’ Association

THE THRESHOLD QUESTION

THE CHARTER

What does a violation of section 7 look like?

• When a common law procedure does not give the level of fairness that is
appropriate in the circumstances – may amount to a violation of fundamental justice
• Usually do not need to apply section 7 to tribunals because applying the common
law principles will get you to the same end

• Exception - Full disclosure of evidence for deportation hearings even though

procedural fairness does not require full disclosure before tribunals
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Emond Montgomery Publications

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 THE THRESHOLD QUESTION
THE CHARTER
Section 7:
Right to: life, liberty, security of person

• Has expanded the implication of right to

representation guaranteed by common law procedural fairness
• At common law parties have a right to be represented
by counsel but this not expand to the right to have gov’t pay
• Under section 7 in cases where fairness requires the
person to be represented in order to ensure a fair hearing and where lack
of representation could result in harm to person’s security of person
- Ex/ hearing where child may be taken away from
parents
Emond Montgomery Publications

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THE THRESHOLD QUESTION
THE CHARTER
Impact of s.7 on Admin processes considered by SCC:
Liberty:
• Does not include purely economic interests (eg. right to work), but does include right to pursue
practice of a profession (which implies dignity and self-worth) (Wilson)
• Includes where administrative bodies are implicated in direct physical restraint of individuals. This
includes freedom of mobility (Wilson).
• Includes state compulsions or prohibitions that affect important and fundamental life choices
(Morgentaler). This encompasses only those matters that properly can be characterized as fundamentally or
inherently personal such that, by their very nature, they implicate basic choices going to core of what it means to
enjoy individual dignity and independence.
• This does not include an inquiry into whether an individual has discriminated (Blencoe)

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 THE THRESHOLD QUESTION
THE CHARTER
Security of the Person:
• Can embrace physical and psychological integrity of individual in domains beyond
criminal law (JG). Dignity, protection from stigma, preservation of reputation are underlying values of
“psychological integrity”, not free-standing constitutional rights (Blencoe).
• Includes state-induced psychological stress that is sufficiently serious.
• Includes delay attributable to administrative body that causes or exacerbates
relevant harm (Blencoe).
• Does not include state inquiry into whether someone failed to meet legislated
standards (Blencoe).
• Does not include purely economic interests.

LIMITS TO CHARTER RIGHTS

Section 1:

“subject only to such reasonable limits prescribed by

law as can be demonstrably justified in a free and
democratic society”

Four -part test to establish that a law/practice that violates a

Charter right is “demonstrably justified in a free and democratic
society”:

1. Sufficiently important objective

2. Rational connection
3. Least drastic means
4. Proportional effect
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 LIMITS TO CHARTER RIGHTS
Section 1:
• Section 1 is a provision unique to the Charter, but it is not as relevant to s.7 because it has its own
balancing feature (“principles of fundamental justice”).
• However, state justifications such as cost of the changing procedure may be considered at this
stage (JG).
• Under s. 1 of the Charter -the Court has held that infringement of s. 7 may be considered justified only
in “extraordinary circumstances where concerns are grave and the challenges complex.”
• A polarity exists between those who see “liberty and security of the person” as involving aspects of
integrity, dignity, and autonomy, as well as physical and mental well-being VS. those who see it as protecting
individuals from direct state interference with their physical liberty and security of the person.

LIMITS TO CHARTER RIGHTS - SINGH

In Singh v. Minister of Employment and Immigration SCC [1985], the
Appellants were convention refugee claimants (well founded fear of persecution)
unable or unwilling to return to country of nationality on basis of the fear
Scheme of Refugee Act:
(1) Claim of refugee status – examination under oath by Immigration officer (senior)
(2) Transcript of examination sent to Refugee Status Advisory Committee (Committee)
(3) Committee advises the Minister of Immigration whether refugee claim s/b accepted or not.
(4) Minister decides (yes/no)
(5) If minister decides no, appellant can apply for re-determination by Immig. Appeal Board
(6) Board look at and asks: (a) reasonable grounds to allow the claim? If yes, full hearing
(7) If no, no hearing and no refugee status granted. Reasons given upon request
• No provision for an oral hearing at any point unless IAB decides to give one.
• No opportunity for claimant to see material relied upon for refusals (either Minister or Board decision)

• Appellants claimed they didn’t have a fair opportunity to present claim (no oral hearing) and no fair
opportunity to know case that had to be met (all they got was a ‘no’). There were no reasons until after refusal.

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 LIMITS TO CHARTER RIGHTS
In Singh, WILSON J – asked 3 Questions:

(1) Are the appellants entitled to the protection of the Charter? Does it apply?

(2) Was there a denial of procedural protection that should be available under
s.7?

(3) Can procedures be saved under s.1 of the Charter? Demonstrably justified?

LIMITS TO CHARTER RIGHTS

Singh – 3 Questions

(1) Are the appellants entitled to the protection of the Charter? Does it
apply?

• Yes, can apply section 7 – b/c the right to life, liberty and security of
person (LLS) is at stake when you are at fear of persecution and trying to escape it.

• LLS - 3 distinct elements court must give meaning to each element

(developed later)

• Security of the person – encompasses freedom from punishment

and THREAT thereof.

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 LIMITS TO CHARTER RIGHTS
Singh– 3 Questions

(2) Was there a denial of procedural protection that should be available under s.7?
Test
• Whether claimants had adequate opportunity to state case and knew case to
meet? Process (at it is set up in the Act) is insulated from the refugee and the refugee is isolated from the
process.

• Where credibility is in issue, it is critical that an oral hearing is held.

• Cannot establish on Balance of Probabilities that the minister’s decision was wrong
b/c claimant doesn’t have access to minister’s basis for decision.

LIMITS TO CHARTER RIGHTS

Singh – 3 Questions

(3) Can procedures be saved under s.1 of the Charter? Demonstrably

justified?

• The fact that time and money can be saved by not having hearings or
fact that it is administratively convenient to deny hearings does not override need to be
consistent with the principles of fundamental justice.

• In any case, minister has not demonstrated that the cost of running
hearing would be so prohibitive as to fall within the meaning of section 1.

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 LIMITS TO CHARTER RIGHTS
Commentary on Singh:
• Before applying Charter, Wilson J pointed out that express wording of statute
prohibited using common law
• Found that Charter ‘requires the court’ to override parliaments decision about
kind of procedural fairness sought by appellant.
• Emphasis on the ‘dire consequences’ of the decision (threat of harm)
• Raised the question (must look case by case) of what extent expense and
admin inconvenience be a consideration?
• Admin Convenience considered under s.1 analysis.

LIMITS TO CHARTER RIGHTS

The “Notwithstanding” Clause:

• Parliament or provincial legislatures have the right to

override fundamental freedoms and procedural fairness
• Parliament or provincial legislatures may amend a statute
to operate “notwithstanding” a provision in s. 2 or ss. 7 to 15 of the Charter
• No justification is required
• Notwithstanding clauses must be renewed every five years
• Examples – Quebec language/sign laws, Sask back to
work legislation and Alberta same sex marriage bans (expired in 2005 and
was not renewed)
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 REMEDIES AVAILABLE FOR A
CHARTER VIOLATION
Section 24:
• Right to challenge administrative actions that allegedly violate a Charter right
• 24(1) Court or tribunal can declare a law inapplicable in a particular situation
• Only a court of competent jurisdiction may grant remedies under section 24
• Does it apply to tribunals? Check the enabling statute

1. Must possess jurisdiction over the parties

2. Must possess jurisdiction over the subject matter
3. Jurisdiction to grant the remedy requested (can only award
remedies available under the statute – ex. overrule DM, refuse a procedure, grant a
stay or adjournment, refuse to apply a law that breaches the Charter)

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REMEDIES AVAILABLE FOR A
CHARTER VIOLATION

Section 52(1):
• Remedy: to declare unconstitutional law to be void

Can a tribunal strike down a law?

• This depends on whether the legislature intended that tribunal to have the power to
interpret the Charter – courts will look at the enabling statute to answer this question
• Does the enabling statute give the tribunal the power to interpret law or is it
implied? If so there is a presumption that this power includes Charter questions
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 CHECKLIST REVIEW

STEP 1 - If a court determines that the threshold

for procedural fairness has been met and the duty
of fairness applies…
Consider limitations on the application of the duty of
fairness – when is a duty of fairness NOT owed

If duty is owed, then move on to STEP 2 - to

determine what is the content of this duty
What are the specific procedures that the decision-
maker must follow in a particular case?

 Review the Sources

THE CONTENT OF PROCEDURAL FAIRNESS

BAKER V. CANADA
The leading case on the content of procedural fairness is Baker v.
Canada.

Baker sets out 5 criteria relevant to determining to content of the duty

(1) the nature of the decision being made and process followed in making it;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision;
(5) the choices of procedure made by the agency itself.

Important:
• They are NOT exhaustive criteria
• No one is more important than the other

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 THE CONTENT OF PROCEDURAL
FAIRNESS BAKER V. CANADA
Baker also sets out some of the specific components of
duty of fairness – The right to be heard:
• Notice
• Disclosure
• Oral hearings
• Right to counsel
• Rights to call evidence
• Timeliness and delay
• Duty to give reasons

• Judicial Review of the Duty of Fairness: Standard=Correctness

THE CONTENT OF PROCEDURAL FAIRNESS - BAKER

Baker - the Background:
• Regulations under the federal Immigration Act permitted the Minister of Immigration to
exercise discretion and allow a person to be admitted to Canada (or to remain in Canada) on
humanitarian and compassionate grounds.
• Ms. Baker came to Canada as a visitor in 1981 but remained illegally for 11 years, during
which time she had 4 children. When she became too ill to take care of her children, it came to the
attention of immigration officials that she was in Canada illegally and she was ordered deported.
• She requested that she be allowed to remain in Canada on humanitarian and
compassionate grounds and supplied medical and other documentation.
• Her application was denied.
• An immigration officer wrote a letter rejecting her request stating that there were
insufficient grounds, but provided no reasons for this conclusion.

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 THE CONTENT OF PROCEDURAL FAIRNESS - BAKER
Baker- the Background:
• Through her counsel, Ms. Baker obtained notes prepared by this immigration official from the immigration
officials set out in detail why he considered her application should be refused.
• Ms. Baker challenged the decision on 2 grounds:

1. First on the ground that she was denied procedural fairness.

• She claimed that the duty required an oral interview before the decision-maker; notice to her
children and other parent of the interview; a right of the children and other parent to make submissions at the interview; notice to
the other parent of the interview and their to have counsel present; and reasons for the decision.

2. She also claimed a breach of procedural fairness on the basis of a reasonable apprehension of bias having
regard to officer’s notes.

• The Supreme Court accepted that, in these circumstances, she was entitled to procedural fairness.
The main task for the Court was to determine what should be the content of the duty of procedural fairness in the
context of this case.

THE CONTENT OF PROCEDURAL FAIRNESS - BAKER

Baker-The Decision:
• As a starting point, the Court stated that the existence of a duty of fairness does not determine
what requirements will be applicable in a given set of circumstances.
• The duty is flexible and variable and depends on an appreciation of the context of the
particular statute and the rights affected.
• The Court concluded that there was a violation of the principles of procedural fairness because of
reasonable apprehension of bias on the part of the immigration officer (discerned from his notes) and because the
exercise of discretion was unreasonable in that the decision-maker failed to give substantial weight to the interests
of the children.
• Where the interests of the children are minimized in a manner inconsistent with Canada’s
humanitarian and compassionate tradition and the Minister’s guideline, the decision will be unreasonable.
• The matter was returned to the Minister for redetermination by a different immigration officer.

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 THE CONTENT OF PROCEDURAL FAIRNESS -
BAKER - 5 CRITERIA TO DETERMINE CONTENT
The Court posited 5 factors relevant to determining the content of the
duty of fairness:

(1) the nature of the decision being made and process followed in making it;
• Is it the type of case that requires court‐like adjudication or is it more discretionary or
regulatory in nature?

(2) the nature of the statutory scheme and the terms of the statute pursuant to which the
body operates;
• Does the statute provide procedures? If not expressly stated, what can be inferred?
• Is there a right of appeal or review provided for in the statute?
• Is the decision intended to be a preliminary one or will it finally dispose of an individual’s
rights?
• Is the decision meant to be of general application or will it primarily affect a particular
individual?

THE CONTENT OF PROCEDURAL FAIRNESS -

BAKER - 5 CRITERIA TO DETERMINE CONTENT

(3) the importance of the decision to the individual or individuals affected;

• The more important a decision is to the lives of those it affects, the higher the level of procedural
protections mandated by common law procedural fairness Eg. Charter rights mean more fairness

(4) the legitimate expectations of the person challenging the decision;

• Legitimate expectation of particular process will likely result in that process Legitimate
expectation of a particular outcome may increase the level of fairness

(5) the choices of procedure made by the agency itself.

• Some deference ought to be afforded to an agency’s ability to choose its own processes, given
that it may be in a better position to know the type of hearing that is appropriate (given its expertise) and how best to use
its limited resources So you should consider these factors whenever you are considering a fairness issue

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 BAKER - 5 CRITERIA TO DETERMINE CONTENT

1. The Nature of the Decision Being Made and the Process Followed in Making It

• Although the classification of decisions as judicial, quasi-judicial, or administrative is no

longer important in determining the threshold question—whether procedural protection must be provided
—decisions that are considered judicial or quasi-judicial in nature are likely to demand more extensive
procedural protection than administrative decisions.
• L’Heureux-Dubé J. put the point this way:
“The more the process provided for, the function of the tribunal, the
nature of the decision-making body, and the determinations that must
be made to reach a decision resemble judicial decision making, the
more likely it is that procedural protections closer to the trial model will
be required by the duty of fairness.”

BAKER - 5 CRITERIA TO DETERMINE CONTENT

2. The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to Which the
Body Operates

• Pay close attention to the legislation that authorizes a particular decision to be made. Fairness
requirements may be minimal.
• For Example: investigatory procedures are not normally subject to the duty of fairness even
though they might give rise to proceedings in which fairness protection will be required.
• Greater fairness protection usually required if a final decision must be made.
• More procedural protection may be required if a second level of proceedings is envisaged, in order
to allow meaningful participation in those proceedings.
• For Example: the existence of a right of appeal is an important consideration in deciding whether
and to what extent reasons for a first-level decision are required.

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 BAKER - 5 CRITERIA TO DETERMINE CONTENT

3. The Importance of the Decision to the Individual or Individuals Affected

• The content of the duty of fairness increases in proportion to the importance of the
particular decision to the person it affects.
• For Example: context of employment – in Kane v. Bd. of Governors of U.B.C. the court
found that
“[a] high standard of justice is required when the right to
continue in one’s profession or employment is at stake.”

BAKER - 5 CRITERIA TO DETERMINE CONTENT

4. The Legitimate Expectations of the Person Challenging the Decision
• The doctrine of legitimate expectation may extend the content of the duty of fairness.
• For Example: a person might be led to understand that he or she will be afforded particular procedural protection, such as
an oral hearing before a particular decision is made, even though that level of protection would not otherwise be required.
• Legitimate expectation began as a threshold inquiry—but in Baker the Court subsumed the concept within determining the
content of the duty.
• Legitimate expectations of procedural protection may arise out of conduct such as representations, promises, or
undertakings or past practice or current policy of a decision-maker.
• The Court summarized the concept in this way in Canada (Attorney General) v. Mavi:
• Where a government official makes representations within the scope of his or her authority to an individual about
an administrative process that the government will follow, and the representations said to give rise to the legitimate expectation are clear,
unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict
with the decision maker’s statutory duty. Proof of reliance is not a requisite.

• More controversially, a legitimate expectation may also arise if a person is led to expect a particular outcome from a
decision-making process.
• A public authority might have policies that suggest such an outcome, or perhaps an official may give an undertaking
that a particular decision will be made. Example – license

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 BAKER - 5 CRITERIA TO DETERMINE CONTENT
5. The Choices of Procedure made by the Agency Itself

• The content of the duty of fairness affects more than just the person whose rights, privileges, or interests are at
stake in a particular case.
• It also affects the decision-maker, who may be required to make decisions in many other cases and those affected
• Need a workable standard and procedural choices that serve needs of the particular case community it serves.
In Baker the Court noted:
• [T]he analysis of what procedures the duty of fairness requires should also take into account and respect the
choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own
procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. While this, of
course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional
constraints.

• In JR situation, an agency can educate the court as to the needs of their processes, which may reflect
compromises necessary to allow decisions to be made within a reasonable time frame and at a reasonable cost.

 DETERMINING THE CONTENT OF THE DUTY CHECKLIST

• If there is an enabling statute then that is where you go to determine the content
of the duty
• If the statute is NOT a complete procedural code or is there room or need to
supplement with the common law then 2 aspects to consider:

1. Right to be heard
• Notice, Disclosure, Oral hearings, Right to be Present, Right to counsel, Rights to call
evidence, Timeliness and delay, Duty to give reasons

2. Right to an unbiased decision maker:

• Issue re Individual conduct
• Issues re insufficient Independence and Institutional bias

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 SOME SPECIFIC COMPONENTS OF THE DUTY
OF FAIRNESS
• Although most of the procedural rights protected by the duty of fairness are well
established, their parameters are open to argument in particular contexts:

Right to Be Heard Right to an Unbiased

Decision Maker
Notice, Disclosure, Oral Issues wrt individual
hearings, Right to be conduct, institutional
Present, Right to (structural) issues and lack
of independence
counsel, Rights to call
evidence, Timeliness and
delay, Duty to give
reasons

NOTICE
• Notice is the most basic aspect of the duty of fairness.
• It is the starting point for participation in any decision-making process and involves consideration of
the following questions:
• Who is proposing to make a decision?
• What is the nature of the decision to be made?
• When will the decision be made?
• Where will the decision be made?
• Why is the decision being made?
• How is the decision to be made?

Requirements often set out in a tribunal’s rules of procedure or in

legislation governing hearing procedures. If not - litigation may arise
over questions concerning the timeliness and sufficiency of notice.
• Was it timely?
• In the sense that it provided adequate time to allow the recipient to respond?

• Was it sufficient?
• Did it provide sufficient information to allow the recipient to make an informed response?

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 NOTICE
The overarching requirement of the duty of fairness is the idea
of reasonableness.
General rule:
“[N]otice must be adequate in all circumstances in order to
afford to those concerned a reasonable opportunity to present
proofs and arguments, and to respond to those presented in
opposition.”
Ongoing duty:
it arises prior to the making of a decision and continues
throughout the course of a decision-making process.

• A party entitled to participate meaningfully in the decision-making process, and in order

to do so must be kept apprised of any relevant issues that arise during the course of a hearing.

DISCLOSURE
Concept of disclosure well known in the context of the criminal law.
• In R. v. Stinchcombe, the Supreme Court of Canada held that the Crown must disclose “all
relevant material” to the defence in a criminal prosecution BUT Stinchcombe principles do not apply in the
administrative context.
• May v. Ferndale Institution:
• “the duty of procedural fairness generally requires that the decision-maker discloses the
information he or she relied upon. The requirement is that the individual must know the case he or she has to meet.”

• The question is not whether disclosure is required in administrative proceedings, but how much
disclosure is required in particular proceedings?
• See Tribunal’s rules or General Procedural Codes (like the SPPA)
• Courts have held that some circumstances, such as professional discipline and the possibility of a
loss of livelihood, require a high level of disclosure.

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 DISCLOSURE
• Need to balance disclosure obligations with the needs of the authorities in particular
circumstances or the rights of other persons.
• Examples - parole hearings or prison discipline cases - concerns about personal
safety of informants, identities; Criminal investigative material—for example, wiretap and search warrant
information; sensitive national security information

• Information can be vetted by a court to determine its materiality and relevance and may
be disclosed only to counsel
• Duty of fairness satisfied if a party has sufficient information to make informed
submissions in regard to a particular matter.

ORAL HEARINGS
Oral hearings - often demanded, but seldom required - not usually necessary
to reach an informed decision - Implications of expense and delay
When will the common law require that an oral hearing be provided?
 where a decision depends on findings of witness credibility

• SCC decision in Singh v. Minister of Employment and Immigration, in which the Court held that a
person claiming Convention refugee status was entitled to an oral hearing. That was because refugee status depended on
whether claimants had a “well-founded fear of persecution” in their homeland, and this was not something that could be
sorted out on the basis of a paper hearing.
• Singh was decided under both s. 7 of the Charter and s. 2(e) of the Canadian Bill of Rights,
because the legislation in question specifically denied an oral hearing.
• Where legislation does not preclude an oral hearing, however, recourse to constitutional and quasi
constitutional remedies will not be necessary.
• The common law may require that an oral hearing be held.

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 RIGHT TO BE PRESENT

RIGHT TO BE PRESENT THROUGHOUT THE

ENTIRE HEARING PROCESS
• No part of the hearing should take place without all parties present unless the
party has voluntarily given up their right to attend

• A tribunal may proceed in the absence of a party where:

• a party has been served but does not attend

• a party continues to disrupt a proceeding
• a party “walks out” in protest
• the evidence is of a particularly sensitive nature (rare)

RIGHT TO COUNSEL
• There is no right to counsel in the context of administrative proceedings.
• This right is constitutionally protected by s. 10(b) the Charter - limited to circumstances of
“arrest or detention.”
• In British Columbia (Attorney General) v. Christie, the Court noted that the right to counsel was
understood historically as relevant only in the context of the criminal law, rather than something required by the rule
of law itself, and concluded that there was no general constitutional right to counsel – but left open may be
recognized in specific and varied situations.

• The right to be represented by counsel is often set out in legislation.

• May extend beyond counsel to representation by a lay representative, depending on the nature of
the proceedings
• May be subject to limits – as it may add cost, delay, and related problems for the
administrative decision-maker

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 RIGHT TO COUNSEL

Issue – ability to exercise the right to legal counsel

– expensive
• The Court acknowledged this in rejecting the existence of a general right to
counsel and considered cost to be a primary reason for denying the existence of such a
constitutional right

EXCEPTION:
Where a deprivation of life, liberty, or security of
the person is at stake, the principles of
fundamental justice may in some cases require the
provision of counsel in the administrative process.

RIGHTS TO CALL EVIDENCE AND

CROSS EXAMINE WITNESSES
The right to call and cross-examine witnesses is normally part of the
right to an oral hearing.
• Not an absolute right but tribunals often have own rules and limits
• SPPA limits – relevant – non-repetitive and non-abusive
• WSIAT – “cross questioning”
• IPC – witness questions directed through adjudicator

General rule - parties must be afforded a reasonable opportunity to

present their cases.
• In Innisfil (Township) v. Vespra (Township), Justice Estey emphasized that the right of cross-
examination is not to be withheld on the basis of a judgment by the tribunal that it is of limited utility:

“The decision to exercise the right is solely that of the holder of

the right. He, of course, must exercise it at his peril as is the
case in any other administrative or judicial proceeding where
such a right arises.”

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 TIMELINESS AND DELAY

• Administrative decision-makers are not usually under specific statutory timelines for holding
hearings or making decisions.

• There is No Charter right to have an administrative matter heard or determined within a

reasonable time—there is no equivalent to the right to a trial within a reasonable time -s. 11(b), which applies only to
persons charged with an offence.

• Even though tribunals supposed to provide more efficient, less formal, and less expensive justice
than courts – often not the case

TIMELINESS AND DELAY

Delay in the administrative process can have significant consequences –
Blencoe v. British Columbia (Human Rights Commission)
• A former minister in a British Columbia government sought an order staying human rights tribunal
proceedings in complaints against him, over 30 months after the date the complaints were filed.
• During that time his political career came to an end: he was dismissed from Cabinet, expelled from his
caucus, and suffered from depression.
• The majority of the Supreme Court concluded that, in some circumstances, delay in the administrative
process might rise to the level of a deprivation of liberty or security of the person under s. 7 of the Charter, which would
violate the right if not in accordance with the principles of fundamental justice.
• In addition, the majority concluded that “undue” delay in an administrative proceeding might impair the
fairness of a hearing, and could result in an abuse of process even if the fairness of a hearing were not compromised.
• However, the majority of the Court concluded that the delay did not infringe either s. 7 of the Charter
or the duty of fairness in Blencoe’s case.

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 TIMELINESS AND DELAY
Blencoe v. British Columbia (Human Rights Commission) – cont’d
• The minority of the Court - dealt with the matter solely on administrative law grounds and set out three
considerations that had to be balanced in considering complaints of administrative delay:

1. the time taken compared to the inherent time requirements of the matter before the particular administrative
body, which would encompass legal complexities (including the presence of any especially complex systemic issues) and factual
complexities (including the need to gather large amounts of information or technical data), as well as reasonable periods of time for
procedural safeguards that protect parties or the public;

2. the causes of delay beyond the inherent time requirements of the matter, which would include consideration of
such elements as whether the affected individual contributed to or waived parts of the delay and whether the administrative body used
as efficiently as possible those resources it had available; and

3. the impact of the delay, considered as encompassing both prejudice in an evidentiary sense and other harms to
the lives of real people impacted by the ongoing delay. This may also include a consideration of the efforts by various parties to minimize
negative impacts by providing information or interim solutions.

TIMELINESS AND DELAY

• The minority emphasized the importance of a contextual inquiry into the problem
• In the context of administrative proceedings, there were important interests, apart from those of
persons complaining of delay, that had to be considered—in Blencoe’s case, the interests of the women who
complained of sexual harassment.
• Staying the ability of the human rights tribunal to hold the hearing would deny the complainants
their right to have their complaints heard. Thus, although they considered that the delay in Blencoe’s case
constituted an abuse of process, the minority of the Court considered that a stay of proceedings was inappropriate
and would have made an order to expedite the proceedings instead.
• Following Blencoe, it is clear that delay in providing a hearing—or, presumably, in rendering a
decision—may breach the duty of fairness and may even rise to the level of a Charter breach.
• But the normal remedy for delay is likely to be an order in the nature of mandamus, requiring the
tribunal to perform its duty expeditiously.

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 THE DUTY TO GIVE REASONS
Historically – no duty on administrative decision-makers to give reasons but
this changed after Baker - Justice L’Heureux-Dubé stated simply:
• In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will
require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons
suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of
appeal, or in other circumstances, some form of reasons should be required.

Reasons are not required for all decisions; rather, they are required in
“certain circumstances.”
1. Reasons are required if a particular decision has “important significance” for an individual, because public
actors demonstrate respect for those affected by their decisions by justifying the decisions they make.

2. Reasons are also required if a statutory appeal process exists to facilitate the workings of that process.
• It is difficult, if not impossible, to determine whether to appeal a particular decision and which arguments to
make if no explanation is provided for that decision.

THE DUTY TO GIVE REASONS

Baker leaves open large discretion for courts to require reasons
• Contemplates flexibility in complying with the duty to give reasons – provide “some form of
reasons” and, as a result, reasons may vary in length and formality in different circumstances.
• Wide variety in both quality of the submissions and the decision makers
• In Baker - Court accepted that informal notes prepared by one immigration officer for the advice of
another satisfied the duty.

Two main concerns on procedural review

1. there may be a failure to provide reasons in circumstances in which a court concludes that
reasons were required.
2. questions may arise as to the adequacy of reasons proffered in particular circumstances.

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 THE DUTY TO GIVE REASONS
• The Court looked at the duty to provide reasons in Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board).
• Court emphasized that reasons need not be provided in all cases and asserted that Baker does not
establish that the quality of the reasons proffered in a particular case is a question of procedural fairness.
• On the contrary - the threshold for satisfying the requirement to provide reasons is very
low: It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons
fall under the category of a breach of the duty of fairness and that they are subject to a correctness review.
• If there are reasons – then there is no breach in fairness
• Any challenge to the reasoning/result of the decision should therefore be made within the
reasonableness analysis (substantive review).

THE DUTY TO GIVE REASONS

• In the Nurses Union case L’Heureux-Dubé J’s recognized that in some circumstances, the duty of
procedural fairness will require written reasons for a decision.
• The appellant Nurses’ Union argued that the labour arbitrator, who had provided some reasons,
nonetheless provided reasons that were so inadequate that they rendered the decision-making process unfair, thus
engaging the correctness standard of review.
• The Supreme Court disagreed and held that where reasons are provided, the adequacy of the
reasons is not reviewable as a matter of procedural fairness and is not a freestanding ground of review.

• In other words, where applicants allege a deficiency in reasons, their remedy is substantive review and,
in Nurses’ Union, that review was conducted on the reasonableness standard.
Alberta (IPC) v. Alberta Teachers’ Association
• emphasized that courts are not to reformulate a tribunal’s reasons in order to render them reasonable.
• it may sometimes be necessary to return a decision in order to allow a decision-maker to provide
reasons on a particular matter, thereby allowing the Court to defer on an informed basis if the decision is reviewed
subsequently.

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 THE DUTY TO GIVE REASONS
• All of this is to say that much requires clarification in future cases.

• At least this much is clear: a wholesale failure to provide reasons will constitute a breach of the
duty of fairness.

• Following Newfoundland Nurses’ Union, however, the Court will not be concerned with the
adequacy or sufficiency of reasons in determining whether the duty to provide reasons has been met.

• The focus will be on the substantive question: do the reasons, such as they are “allow the
reviewing court to understand why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes”?

CONTENT OF THE DUTY OF

FAIRNESS
Canada (Attorney General) v Mavi – SCC 2011
• This case addresses what duty of fairness, if any, is owed to residents of Canada who have
defaulted on undertakings made to the federal government to guarantee the financial security of family members
that they sponsored to come to Canada when the sponsor is in default of the undertaking and the government files
an application to collect on the debt.

• This proceeding was initiated by eight sponsors whose relatives had received social assistance
and therefore were in default of their undertakings. The sponsors put forward that the enabling legislation, the
Immigration and Refugee Protection Act, vested discretion with the government to determine on a case-by-case
basis whether or not to enforce the debt and sought to avoid payment of the debt either temporarily or permanently.

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 CONTENT OF THE DUTY OF FAIRNESS
Canada (Attorney General) v Mavi – SCC 2011
Binnie J., for a unanimous court, ruled that the undertakings are valid contracts and
that there is no discretion for the government to forgive the debt. However, the
contracts are controlled by federal legislation and therefore the enforcement of the
contracts must import administrative law principles including a limited duty of
fairness.
As set out in the judgment, "the content of this duty of fairness includes the following
obligations:
(a) to notify the sponsor that the government will be pursuing a claim regarding the debt;
(b) to afford the sponsor an opportunity within limited time to explain in writing his or her relevant personal and
financial circumstances that are said to militate against immediate collection;
(c) to consider any relevant circumstances brought to its attention, keeping in mind that the undertakings were the
essential conditions precedent to allowing the sponsored immigrant to enter Canada in the first place;
(d) to notify the sponsor of the government's decision;
(e) without the need to provide reasons."
The court concluded that the duty of fairness was met with respect to all eight
respondent sponsors.

CONTENT OF THE DUTY OF FAIRNESS

THE CHARTER - SURESH V. CANADA
In Suresh, the court applied the five-question framework from Baker to
determine the level of procedural protection required by s. 7 of the Charter.
Background
• Suresh, a Convention refugee from Sri Lanka, applied for immigrant status in Canada.
• In 1995, the government rejected his application and ordered that he be deported on the basis that he
was a security risk. The Canadian Security Intelligence Service (CSIS) had claimed that he was a supporter and
fundraiser for the Liberation Tigers of Tamil Eelam, a terrorist group in Sri Lanka.
• The Federal Court of Canada upheld the deportation order. Following this the Minister of Citizenship
and Immigration issued an opinion that declared him a danger to the security of Canada under section 53(1)(b) of the
Immigration Act and consequently should be deported.
• Suresh had been given an opportunity to present written and documentary evidence to the Minister,
however, he was not provided with a copy of the memorandum of the immigration officer and he consequently was not
provided with the opportunity to respond to the memorandum.

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 CONTENT OF THE DUTY OF FAIRNESS
THE CHARTER - SURESH V. CANADA
Due to this inability to respond – Suresh applied for JR of the
decision, arguing:

the Minister's decision was unreasonable;

the procedures of the Immigration Act was unfair;
the Immigration Act infringed sections 7, 2(b), and 2(d) of
the Charter.

• The application was dismissed by the Federal Court.

• On appeal, the Federal Court of Appeal upheld the decision of the Federal Court, Trial
Division.
• The decision was then appealed to the Supreme Court.
• The SCC finds that Suresh was not owed "a full oral hearing or a complete judicial
process” but he was owed a level of procedural protection greater than that required by the act (which
was no protection whatsoever) and greater than that which Suresh received.

CONTENT OF THE DUTY OF FAIRNESS

THE CHARTER - SURESH V. CANADA
Suresh and Procedural Fairness:

• Specifically, the court found that a person facing deportation to torture under s. 53(1)(b)
of the Immigration Act should
• receive a copy of the material on which the Minister is basing their decision (subject
to valid reasons for reduced disclosure such as safeguarding public security documents)
• That an opportunity be provided for the person to respond to the case presented to
the Minister
• Furthermore, the refugee who is being deported has the right to challenge the
information of the Minister, including the right to present evidence.

• The court finds that because Suresh made a prima facie case that he would be subject
to torture upon being returned to Sri Lanka and because he was denied the procedural fairness owed to
him by the Charter, the case should be returned to the Minister for reconsideration in accordance with
proper procedure

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 DETERMINING THE CONTENT OF THE DUTY CHECKLIST

• If there is an enabling statute then that is where you go to determine the

content of the duty

• If the statute is NOT a complete procedural code or is there room or need

to supplement with the common law then 2 aspects to consider:

1. Right to be heard
• Notice, Disclosure, Oral hearings, Right to be Present, Right to counsel, Rights to call
evidence, Timeliness and delay, Duty to give reasons

2. Right to an unbiased decision maker:

• Issues re: Individual bias
• Issues: re: Institutional bias / Insufficient independence

RIGHT TO AN UNBIASED DECISION

MAKER OVERVIEW

• The right to an unbiased decision maker is the second broad class of procedural obligations
associated with the Common law, Charter s.7 and the Bill of Rights.
• Bias stems from individual conduct by the decision maker, like attitudinal bias or prejudgment,
pecuniary interest, past conduct etc.
• Bias also stems from the institution itself – the decision making body as a whole ( the tribunal),
and its insufficient independence or institutional bias.
• Using the common law to justify a procedural fairness attack on the basis of insufficient
independence is not likely to succeed where a statute creates an administrative regime (because the common law
cannot prevail over a statute)
• The independence argument can be based on a s.7 Charter or Bill of Rights source (assuming
they are triggered)

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 BIAS AND INDEPENDENCE
Bias and Independence
Administrative tribunals must be free from an appearance of bias - that is,
a reasonable person must conclude that an administrative decision-
maker is sufficiently free of factors that could interfere with his or her
ability to make impartial judgments (commonly known as the "reasonable
apprehension of bias" test) This is derived from the natural justice
principle of nemo judex in sua causa, or the right to be judged impartially.
Independence is one important indicator of whether there is an
appearance of bias in an administrative body. Although administrative
independence is not required to be as strict as judicial independence,
there are still certain minimum requirements such as security of
tenure and independent administrative control. However,
administrative independence is not guaranteed under the constitution,
and can be ousted by statutory language.
Once a court has determined that there has been a reasonable
apprehension of bias, the decision in question must be void ab initio, as
there is no remedy for the damage created by the apprehension of bias.

BIAS AND INDEPENDENCE

SOME DEFINITIONS
Bias:
• A predisposition or prejudgment leading to a decision based on factors other than legitimate and relevant considerations

Impartiality:
• A state of mind free of bias

Independence:
• A state of complete liberty to decide a matter without outside pressure or influence

Institutional (or structural) impartiality:

• Is there anything about the structure of the organization that might create an appearance of partiality in a substantial
number of cases

Institutional independence:
• Refers to the relationship between the organization and the executive/government
- freedom from government influence

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 BIAS – GENERAL TEST
General Test for Bias
The apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information.
KEY CASE
Committee for Justice and Liberty v. National Energy Board, [1976]
1. S.C.R. 369 at p. 394:
… the apprehension of bias must be a reasonable one, held by reasonable and right minded
persons, applying themselves to the question and obtaining thereon the required information. In the words of the
Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically –and
having thought the matter through – conclude. Would he think that it more likely than not that [the decision maker]
whether consciously or unconsciously, would not decide fairly.

BIAS

Allegations of reasonable apprehension of bias exist in 2 major

forms in administrative law:

(1) perceptions of individual bias, which deal with the impartiality of individual decision-makers;
and

(2) perceptions of institutional bias and/or a lack of independence, which deal with whether
reasonable perceptions of partiality regarding the decision-making body as a whole can be raised in a substantial
number of cases.

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 INDIVIDUAL BIAS

1. Antagonism during the hearing

2. Association between party and decision-maker
3. Involvement of decision-maker in earlier stage of process
4. Prejudgment by decision-maker (as evidenced by statements made before, during or after
the hearing)
5. Monetary/other personal interest

INDIVIDUAL BIAS
1. Antagonism During Hearing

-> Unreasonably aggressive questions or critical commentary

• Baker
• Baker argued that the duty of fairness owed her by the Minister meant that the decision-makers
should be free from any "reasonable apprehension of bias." The court concurred and found on the facts that there was a
"reasonable apprehension of bias" in the case of the immigration officer who wrote the notes on the file that were
subsequently considered by the court to be the reason for the decision.

2. Association with a Party

• Marquez
• Sawyer
• Matsqui Indian Band
• MacBain

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 INDIVIDUAL BIAS
3. Involvement at Preliminary Stage

• Committee for Justice and Liberty

• Vespa
• LSUC v. French

Does the statute authorize prior involvement?

• Brosseau
• Manning

INDIVIDUAL BIAS

4. Prejudgment by decision‐maker - Attitudinal Bias

• Predisposition toward outcome

• Has the decision‐maker or the organization to which he/she belongs demonstrated in the past a
particular attitude towards this issue that is likely to create a reasonable of apprehension of bias in the present
case?
• Is it implicit in the type of work done by this agency that previous statements ought not to
automatically exclude the person from being involved in a determination of a subsequent similar issue?

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 INDIVIDUAL BIAS
4. Prejudgment by decision‐maker - Attitudinal bias

Prior statements
• Paine
• Newfoundland Telephone Company
• Large
• Pelletier

Comments made in political context

• Old St. Boniface
• Save Richmond Farmland

Personal advocacy
• Great Atlantic & Pacific

INDIVIDUAL BIAS
5. Monetary or other personal interest

Any direct interest – pecuniary or otherwise – will

give rise to disqualification

• Energy Probe
• Matsqui Indian Band
• Burnbrae Farms
• Moskalyk‐Walter

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 215

INDIVIDUAL BIAS
Other Examples of Possible Individual Bias

• Meets with one party in the absence of other parties

• Has a friendship with someone with invested interest in the case
• Is related to someone with invested interests in the case
• Has financial interest in the outcome of the case
• Is part of an association with invested interest in the outcome
• Shares opinions before evidence and arguments are heard
• Persistently favours one party during the hearing process
• Expresses a strong like or dislike for a party/witnesses
• Has been in litigation against a party/witness in a proceeding
• Has had a significant professional relationship with a party/witness
• Accepts gifts or favours from a party or witness
Emond Montgomery Publications

216

INSTITUTIONAL BIAS
• Impartiality of a decision-maker is determined by examining his or her state of
mind
• Independence of a tribunal is a matter of its status
• Requirement of Institutional Impartiality
• Note that a statute may require some amount of partiality = a built-in-
bias – BUT … cannot violate the Charter
• Tribunal must follow gov’t policy
• Chair must report top the minister
• Agency budget must be approved by minister

Emond Montgomery Publications

108
 217

INSTITUTIONAL BIAS
Test – R. v. Lippe, 1990 18 (SCC), [1991] 2 S.C.R. 114
Lamer C.J.C., at p. 140 on institutional impartiality:
... whether or not any particular judge harboured pre-conceived ideas or
biases, if the system is structured in such a way as to create a reasonable
apprehension of bias on an institutional level, the requirement of impartiality
is not met.

Steps for analysis to determine whether institutional impartiality exists.

Step One: Having regard for a number of factors including, but not limited
to, the nature of the occupation and the parties who appear before this
type of judge, will there be a reasonable apprehension of bias in the mind
of a fully informed person in a substantial number of cases?
Step Two: if the answer above is yes – then consider what safeguards
are in place to minimize the prejudicial effects and are they sufficient to
guarantee institutional impartiality under 11d of the Charter

Emond Montgomery Publications

INSTITUTIONAL BIAS

1. Closeness between an agency / tribunal and government

2. Sub-delegation
3. Intra‐Agency Consultation
4. Consistent Decisions and Guidelines
5. Multiple and Overlapping Functions: of counsel, of decision-maker

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 INSTITUTIONAL BIAS
1. Closeness between an agency / tribunal and government Some issues to consider:

• How much power does a chair have over appointing panels?

• Are agency staff employed by the agency or the government?
• How much does an agency have to follow government policy?
• Is the agency chair subject to a performance evaluation?
• Does the agency’s government department decide its budget?

INSTITUTIONAL BIAS
1. Closeness between an agency / tribunal and government

• Administrative decision-making bodies have been created in a way that

leaves them connected to government. Most have a link with the executive branch of
government through a minister of Cabinet. Generally, under their enabling statutes, tribunals, or
at least their chairs, are required to maintain some contact with this minister.
• Users of the tribunal might be concerned that the minister might use these
opportunities to dictate, whether explicitly or implicitly, how particular files should be decided

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 INSTITUTIONAL BIAS
2. Sub-Delegation / Delegation of Authority to Decide

Person making decision must be authorized to do so:

• General principle is that the decision must be made by the person who is statutorily identified – unless
delegation is expressly permitted
• Sometimes statutory context means that person must make decision “personally”, but other times
context might permit delegation
• What is the nature of the power being exercised?
• What are the practical realities?
• What is a practical interpretation consistent with the language and purpose of the statute?
If you are a decision-maker, can you delegate your duty to decide
to someone else?
• Permitted when a statute states that a ministry “may” do something, it is specifically authorized, or it is
implied
• Otherwise, whether it is allowed depends on the nature of the power being delegated
Improper delegation renders decision unlawful

INSTITUTIONAL BIAS
2. Sub-Delegation / Delegation of Authority to Decide

A procedure cannot be avoided by delegating to someone who is

not subject to restraints
• Common Law Rule: If Parliament has delegated authority to you, you cannot further delegate your powers away
absent statutory authorization

• Presumption of deliberate selection: Legislature choose tribunal for a reason

• Rule of Law: gov't can only infringe on your rights in accordance w/ rule of law; therefore a secondary
delegate has no legal basis for exercising their authority

• Practically speaking, this is a weak rule. It merely tells us to look at the enabling statute to determine
whether the tribunal can further delegate its powers. Where a tribunal can show that they have come up with a better solution
than what is provided for by statute, courts may allow new solution to stand despite violation.

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 INSTITUTIONAL BIAS
2. Sub-Delegation / Delegation of Authority to Decide Jeffs
• Milk Board delegated a committee to investigate supply and report back, but instead the
committee went ahead and heard zoning appeal
• There was no delegation of the power to hold hearing
• Even if there had been, Board did not receive summaries of evidence or submissions but merely
approved determination of subcommittee
• Court suggested that a summary of evidence might not be sufficient if credibility is in issue

Some decisions may have to be made by Minister personally

• Suresh – deportation decision – very serious
• Minister must consider both her own staff’s submissions and those of the person concerned

INSTITUTIONAL BIAS
2. Sub-Delegation / Delegation of Authority to Decide Arlidge (House of Lords)
• Appeal by owner of condemned house to Local Government Board was delegated to an inspector to
hold a public inquiry and report findings which were merely confirmed by the Board
• Court found that the delegation was satisfactory - totally impractical to expect Board, which included the
Minister, to do everything personally
• However, this argument of “efficiency” is not always succesful

Payne
• Former Commissioner filed affidavit suggesting Human Rights Commission considered extraneous
factors when dismissed decision
• Person to be examined was not a Commissioner but a staff member
• Two judges of court of appeal permitted examination of human rights registrar where, as here, there
was evidence of impropriety beyond mere speculation
• Dissent: affidavit provided mere speculation, not the necessary “high” threshold of reasonable,
reliable evidence

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 INSTITUTIONAL BIAS
2. Sub-Delegation / Delegation of Authority to Decide Discipline Cases

Vine
• Labour legislation gave disciplinary power to National Dock Labour Board – cannot delegate further to a to sub‐
committee
• Judicial nature of powers a strong factor against delegation
• Would have been acceptable to delegate only the taking of evidence and reporting
Morgan
• Practicalities made it acceptable to delegate discipline of student in university context from Board of Governors to Dean of
students, who then delegated to a Committee
King
• Institute of Chartered Accountants could not delegate disciplinary function because it is quasi‐judicial
• Prohibition of delegation means that all persons who hear a case must participate in the decision
• Must be a decision of the collective

IBM Canada
• Delivery of dissent separate from majority reasons was not enough to prove that decision was not made together

INSTITUTIONAL BIAS
3. Intra‐Agency Consultation – “s/he who hears must decide”

• The issue of consultation poses a challenge to administrative tribunals who want to foster
coherence and consistent decisions - but does it breach the natural justice principle – s/he who hears must decide?

It is improper for:
• Anyone who missed part of the hearing to help to decide
• Anyone associated with a tribunal to pressure the panel

Exceptions and limits:

• If a member of a panel cannot complete the hearing, the other members may decide
• Parties may agree to have a new member read transcripts/agreed statements of the evidence to
complete the hearing

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 INSTITUTIONAL BIAS
3. Intra‐Agency Consultation – “he who hears must decide”

• Trilogy of cases set out the principles: Consolidated Bathurst, Tremblay, Ellis Don where the
SCC says consultation is good:
• Large, busy tribunal; consistency is important; privative clause prevents courts from dealing with
inconsistencies; tripartite structure of board implies exchanges of views
But:
• Must be initiated by the adjudicators themselves, voluntary
• Must be limited to questions of policy and law
• Evidence cannot be re‐assessed – facts taken as found and if new issues/facts introduced must notify
parties and permit them to comment
• Even on questions of law and policy, the decision‐makers must be free to take whatever decision
they deemed right in their conscience – no pressure

INSTITUTIONAL BIAS
3. Intra‐Agency Consultation – “s/he who hears must decide”

Consolidated Bathurst
• Board member could request full board meeting where contemplating a change in policy
• Had to present draft reasons
• No compulsion (no minutes, not mandatory, no vote)
• Dissent did not believe there was a real distinction between policy and fact

“Full board meetings are a practical means of calling upon the

accumulated experience of board members when making an important
policy decision and obviate the possibility of different panels inadvertently
deciding similar issues in a different way. The rules of natural justice
should reconcile the characteristics and exigencies of decision making by
specialized tribunals with the procedural rights of the parties.”

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 INSTITUTIONAL BIAS

3. Intra‐Agency Consultation – “s/he who hears must decide”

Tremblay
• “Consensus table” process for social benefits decisions
• Flawed because creates systemic pressure:
• Effectively compulsory when counsel suggests it
• President may initiate
• A vote is taken, attendance and minutes kept
• President could resolve disagreement even though he did not hear the case
• In this case reasonable apprehension of bias because he had expressed an opinion from the
outset

INSTITUTIONAL BIAS
3. Intra‐Agency Consultation – “s/he who hears must decide”

Impacts on deliberative secrecy:

Ellis Don
• Draft decision revealed a change in a factual finding – an attempt to examine panel members
was dismissed
• Deliberative secrecy important to protect value of consultative process, independence
• Without evidence that facts were discussed, must presume they were not
• Dissent: the change is enough evidence of the improper discussions

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 INSTITUTIONAL BIAS
3. Intra‐Agency Consultation - Involvement of Agency Counsel

General Rule: Policy and adjudicative areas of a tribunal should operate separately.

• At an administrative tribunal hearing, agency counsel may have a number of roles:

• Advise on procedure
• Advise on admissibility of documents
• Advise on policy considerations

Concern: overzealous agency counsel who attempt to run the hearing in place of the
panel. Final decision maker must run hearing, not the lawyer (who may or may not have
heard all the evidence).

Agency Counsel's Role in the Preparation of Reasons: Counsel cannot retire with the
tribunal to deliberate. Tribunal can seek help of agency counsel to draft reasons, but not
parties' counsel. As tribunals are generally not comprised of lawyers, courts should be
prepared to overlook "possible ambiguities" if basic gist of reasons are clear.

INSTITUTIONAL BIAS
3. Intra‐Agency Consultation - Involvement of Agency Counsel

• Not appropriate for lawyers to have overlapping functions (investigation, referral, prosecution,
assistance to decision‐maker)
• Counsel’s advice to the agency is subject to solicitor‐client privilege when given outside hearing
context
• If advice given during course of a hearing, parties must be aware and have opportunity to
respond
• Counsel must not appear to be in fact running the hearing
• Decisions must be made by decision‐maker
• Counsel must not be seen to be taking sides
• Counsel cannot provide advice during deliberation phase, but can assist in preparation of
reasons

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 INSTITUTIONAL BIAS
3. Intra‐Agency Consultation – Involvement of Agency Counsel:

Khan - Assistance Drafting Reasons

• College of Physicians Discipline Committee
• Decision‐maker must retain complete control over the result
• There should be no compulsion to have lawyer involved
• Role of counsel was not to provide legal advice or participate in deliberations, but to assist in the expression of the reasons
• No evidence that new facts, arguments or legal issues were being considered
• Important that this was review/revision of a draft, not an independent piece of work

Krever (FCA) - Drafting Reasons

• No reason for concern about counsel writing inquiry report, as long as it is reviewed and the Commission adopts it as his own
• Not a decision
• Must be realistic

Bovbel - Review of Reasons

• Review of all immigration decisions by legal department
• Benefits: a lay tribunal applying complex area of law; not about facts but about ensuring consistent application of law to facts
• Allowed to look at facts only to the extent that decision’s review reveals an inconsistency
• No evidence that counsel is not free to decide or that review process has led to abuse

INSTITUTIONAL BIAS
4. Consistent Decisions and Guidelines

• Guidelines Govern internal ops of tribunal. Attempts to apply tribunal's collective wisdom in interpreting statute or
answering policy questions. Balances the need for individual hearing versus consistency.
• Should be subject to public consultation process before guidelines are implemented
(Immigration and Refugee Board News Release) . Guidelines receive legitimacy
where there is transparency.
• Should be published and made available to parties before hearing
• Rules govern external interactions b/t tribunal and other parties. No longer possible for modern administrative state to
function w/o delegating some rulemaking authority to tribunals.
• Note that common law has been unsuccessful at applying PF concepts to rulemaking - therefore public consultation
becomes substitute for judicial review.
• Tribunals can have implied statutory authority to draft non-binding rules (Ainsley)

Limits on use of non-statutory instruments:

• Non-statutory instrument has no effect in face of contradictory statute or reg
• Non-stat cannot pre-empt exercise of regulator’s discretion.
• Non-stat cannot impose mandatory requirements enforceable by sanction – e.g. de facto laws disguised as
guidelines.

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 INSTITUTIONAL BIAS
4. Consistent Decisions and Guidelines

Thamotheram
• IRB guidelines regarding “reverse questioning”
• Guidelines do not fetter discretion when there is an option not to follow them
• Requirement to explain deviation is not coercive but rather merely assists with coherence
• Monitoring of adherence to guidelines is permissible where not mandatory or not frequent or consistent
• In this case, was not coercive and no evidence of sanction being threatened

Cdn Telephone Employees

• General “directives” by human rights Commission in relation to pay equity were authorized by statute to have force
of law
• This does not compromise independence since a Tribunal is bound to follow the law
• Earlier decisions had found that mandatory guidelines violated independence where they were not statutorily
permitted

INSTITUTIONAL BIAS
5. Multiple and Overlapping Functions: of counsel, of decision-maker

• Overlapping functions contribute to institutional bias when those who recommend, investigate
or prosecute proceedings against a person also decide whether to take away the person’s rights, privileges, or
benefits

• A clear separation of roles avoids the appearance of bias

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 INSTITUTIONAL BIAS
5. Multiple and Overlapping Functions

Quebec Regie
• A lawyer could be involved in all stages, including referral, prosecution, and preparation of reasons
• The same director could both decide that a hearing was to be held and then hear the case
• No apparent safeguards

Sam Levy
• Superintendent of bankruptcy had statutory authority to both investigate and adjudicate
• Solved by delegating adjudicative functions

Izdiak
• Minister makes decision to refer extradition to a judge and also decides whether to hand person over
• This is okay because of “buffer” in independent determination by judge, with procedural fairness
• Handing over is really a political issue

LACK OF INDEPENDENCE
Institutional independence is related to the concept of bias, but is
more about the systemic structure of a board or tribunal as opposed to
individual decision making.
Start by looking at judicial independence
• 3 objective structural conditions

1. security of tenure
2. financial security
3. administrative (or institutional) control

• Reassure the public that the possibility of interference in judicial decision making by the executive and
legislative branches of government has been reduced, if not eliminated.

• Judges also have adjudicative independence - the ability of a decision-maker to decide, free of
inappropriate interference by other decision-makers. Such inappropriate interference may include, for example, pressure to
decide a certain way or substitution of another’s decision for one’s own

• Help boost public confidence

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 LACK OF INDEPENDENCE
The test for adequate tribunal independence:
• Valente v. The Queen was the first Supreme Court case in Canada to suggest the idea that the
guarantees for judicial independence could also be applied to a variety of tribunals
• The test for adequate tribunal independence is whether a reasonable, well-informed person having
thought the matter through would conclude that an administrative decision-maker is sufficiently free of factors that could
interfere with his or her ability to make impartial judgments.
• The standard for tribunal independence is not as strict as it is for judicial independence. Administrative
tribunals do not have to meet the same degree of independence as the courts do.
• The methodological approach taken by the courts when the independence of an administrative tribunal
is challenged consists of applying the guarantees of tribunal independence in a flexible way to account for the functions
performed by the tribunal under scrutiny.
• Court set out three criteria security of tenure, financial security and administrative control) to guarantee
independence BUT noted they were not fixed or exhaustive and may evolve over time

LACK OF INDEPENDENCE

This method was stated concisely in Canadian Pacific Ltd. v.

Matsqui Indian Band by Lamer C.J.:.
• [W]hile administrative tribunals are subject to the Valente principles, the test for institutional
independence must be applied in light of the functions being performed by the particular tribunal at issue.

• The requisite level of institutional independence (i.e., security of tenure, financial security and
administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of
independence such as oaths of office.

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 LACK OF INDEPENDENCE
– SECURITY OF TENURE

Ocean Port Hotel – SCC Decision

• The B.C. Liquor Appeal Board was a liquor-licensing body that could impose sanctions and remove
licences upon finding that a licensee had contravened the province’s Liquor Control and Licensing Act.43
• The Royal Canadian Mounted Police (RCMP) had reported that Ocean Port Hotel was responsible for
five incidents that violated the Act, the regulations enacted under the statute, and the terms of its liquor licence.
• The Liquor Control and Licensing Branch, a regulatory branch established under the Act, consequently
imposed a two-day suspension on Ocean Port’s liquor licence.
• The Liquor Appeal Board held a hearing de novo and confirmed the suspension, finding that the
evidence supported four of the five alleged infractions.
• On appeal to the B.C. Court of Appeal, Ocean Port argued that the Liquor Appeal Board lacked
sufficient independence to render a fair hearing. It submitted that the Board’s decision was therefore invalid. The hotel
took issue with the terms of appointment of the members of the Liquor Appeal Board. The Act indicated that the chair and
the members of the Board were to serve “at the pleasure of the Lieutenant Governor in Council.”

LACK OF INDEPENDENCE
– SECURITY OF TENURE

Ocean Port Hotel – SCC Decision

• Attempted to lay to rest the controversial issue of whether “at pleasure” appointments provide a
satisfactory degree of independence for decision-makers sitting on tribunals that impose penalties.
• This was the Supreme Court’s first opportunity to address the crucial issue of “at pleasure”
appointments which were clearly not as secure as fixed- term appointments
• Provides reasons why administrative tribunals should not need the same degree of independence as
courts and clearly indicated that there is no freestanding constitutional guarantee of independence for administrative
tribunals.
• This is because administrative tribunals form part of the executive branch of government. The Court
held that because constitutional guarantees of independence serve primarily to protect the judiciary from interference by
the executive, they cannot work to protect tribunals from the branch of government of which they are a part.
• At the same time, Supreme Court and other Canadian jurisprudence has shown a willingness to
expand the notion of “court” to allow litigants before some lesser judicial entities the benefits of constitutional guarantees
of independence.

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 LACK OF INDEPENDENCE
– SECURITY OF TENURE
In Keen v. Canada, Canada’s Nuclear Safety Commission President Linda Keen was
removed from her job over a decision to keep a nuclear power plant closed for its
failure to meet safety standards.
• Ms. Keen applied to the Federal Court for judicial review. At issue was whether she received adequate procedural
fairness in the manner of her dismissal.
• The Court held that the circumstances of her termination were sufficient to satisfy the requirements of fairness for
an “at pleasure” appointment (which is how her appointment as president was characterized). The governor in council’s dismissal was
therefore upheld.

How to resolve Ocean Port Hotel and Keen?

• Ocean Port Hotel affirmed that a variety of tribunal appointments can satisfy the requirement of security of tenure
so long as there are no constitutional standards at play and the terms of the appointment derive from constitutionally valid legislation.
• Keen shows that, as a practical reality, governments still can, and do, interfere with administrative decision
making because of improper understandings about tribunal accountability
• The Federal Court was faithful to the Supreme Court’s guidance in Dunsmuir, which provided that a lower
level of procedural fairness is required on termination of an “at pleasure” appointee – court in Dunsmuir stated - with respect to
“at pleasure” appointments, procedural fairness is needed “to ensure that public power is not exercised capriciously.

LACK OF INDEPENDENCE
– SECURITY OF TENURE

Bell Telephone Employees

• Challenge to Chair’s power to extend appointments expiring during course of hearing
• Did not offend independence because decision made by Chair, not Minister
• Did not offend impartiality because no reason to believe members would feel pressure to adopt view of
Chair

Sethi
• Pending legislation would require all immigration board members to be reappointed
• Reasonable person would not think that government would be pleased by a decision not in accord with the
merits
• Do not want to create a chilling effect on government’s
• ability to change its institutional arrangement

Matsqui Indian Band

• No set terms or requirements for termination of appointment

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 LACK OF INDEPENDENCE
– SECURITY OF TENURE

R. v. Lippe
• Part time members of municipal board could practice law at the same time. Likelihood of
conflict too remote to raise concern for bias on an institutional level

Alex Couture
• Part time appointment would be problematic if other activities of member likely to put them in
conflict
• In this case, very unlikely
• Also, there are safeguards regarding bias in statute
 Oath of office
 Limit on number of re‐appointments
 Specific prohibition of financial interests
 Notes that institutional bias is different from independence

LACK OF INDEPENDENCE
– FINANCIAL SECURITY
Idea is to ensure compensation decisions are not arbitrary or otherwise
susceptible to influence decision‐making and that there is no need to
supplement income

• Judges have a fixed salary and the decision is made by remuneration commission – a legal process for
determination of salary, with no room for arbitrary changes by government
• In general, a Tribunal must have fixed salary and decisions should be relatively arms’ length from
government

Bell Telephone Employees

• Human Rights Tribunal remuneration was set by the Human Rights Commission, a party that
appeared before it – not acceptable - ultimately changed

Matsqui Indian Band

• No guarantee of any salary at all – theoretically could decide not to pay if do not like decision

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 LACK OF INDEPENDENCE
– ADMINISTRATIVE CONTROL

Administrative control concerns the manner in which

the affairs of the court are administered

• Avoid government control in, for example, allocation of resources or assignment

of cases

• Judges have a third party negotiates allocation of funds from Government and cases
are assigned by Chief Justice

• Tribunals generally have control over cases, but resource issues are closer to
government

LACK OF INDEPENDENCE
– ADMINISTRATIVE CONTROL
Québec Inc. v. Quebec (Régie des permis d’alcool)

• In Régie, it was held that the directors of Quebec’s liquor licensing board possessed
sufficient security of tenure despite the fact that their terms of office were limited. The Supreme Court of
Canada held that the requirements of tribunal independence do not necessitate that administrative actors,
like judges, hold office for life.

• The respondent in Régie also challenged the board’s administrative control. It argued
that there were so many points of contact between the liquor board and the minister responsible for the
board’s enabling legislation that the board’s institutional independence was threatened. Court held -
administrative control was also sufficient – it was not unusual for a minister to have many points of
contact with a tribunal under its responsibility. Court noted - no evidence had been provided to show that
the minister could affect the decision-making process

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 LACK OF INDEPENDENCE
– ADMINISTRATIVE CONTROL
Alex Couture – Competition Tribunal
• Limited – term appointment satisfactory where can be removed only for cause
• No specific statutory procedural protections for dismissal but they would be required by common law and
by application of Judges’ Act which applies to federal appointees too
• Lower court concerned because Governor in Council sets rate and privy council received performance
appraisal
• Appeal court satisfied that policy creates enough distance (advisory group for salary, privy council received for
“human resources” purposes only)
Katz
• Lawyers appointed to stock exchange disciplinary committee – they had no terms, no guarantee of pay
• SCC distinguished self‐regulatory function from adjudicative function in Matsqui, and focused on how
tribunal actually functioned in practice
• No evidence of arbitrary removal ‐‐ people sit until they resign
• No evidence of payment issues, no evidence of interference by executive – chairs selected by a
manager, on rotation – Informed person would not be concerned about independence

OTHER ISSUES - DISCRETION

• Issues related to the exercise of discretion has both procedural and substantive elements

Discretion:
• Power to choose a course of action from options available under the law
1. Discretion must be exercised within “four corners” of the statute – consistent with purpose of
statute
2. Officials must consider only relevant factors
3. Similar cases should be treated in a similar way
4. Discretion must be exercised in good faith

Fettering Discretion: refusing to consider an option available under

law or to consider any relevant factor when making a decision

Ruling out options that the DM is required to consider

250

Emond Montgomery Publications

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 251

RAISING AN ALLEGATION OF BIAS

• Allegations should be raised as early as possible
• The best way to raise the issue will depend on the circumstances of each case
• The court will consider a party to have waived the right to argue an allegation of
bias if they do not raise it during the hearing
• The right is NOT waived if a party raises an allegation but the member
continues to hear the case

Emond Montgomery Publications

252

TRIBUNAL RESPONSE TO AN
ALLEGATION OF BIAS
If an adjudicator is concerned there may be an
appearance of bias, he or she may:

 Ask the tribunal chair to assign a different adjudicator

 Informally disclose the facts to the parties and volunteer to stand aside
 Decide that it is in the public’s interest to continue to hear the case, if he or she
believes that there is no actual bias or reasonable apprehension of bias (i.e./ hearing has started
and there would be substantial cost or delay to step down)

Emond Montgomery Publications

126
 253

TRIBUNAL RESPONSE TO AN
ALLEGATION OF BIAS
Interesting Dilemma

• If an adjudicator is giving reasons of why s/he feels there is no bias – this is

giving evidence
• Adjudicator not generally permitted to be a witness in the matter in which they
preside – could the parties then cross examine the adjudicator on their evidence?

Emond Montgomery Publications

STANDARD OF REVIEW –
PROCEDURAL FAIRNESS
• The requirements of the duty of fairness are independent of the merits of the substantive matter
in issue and that breach of the duty voids a decision.
• The Supreme Court of Canada expressed the point categorically in Cardinal: [T]he denial of a right to
a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing
would likely have resulted in a different decision.
• The right to a fair hearing = an independent, unqualified right which finds its essential
justification in the sense of procedural justice which any person affected by an administrative decision is entitled to
have.
• Standard of review = CORRECTNESS.

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 STANDARD OF REVIEW –
PROCEDURAL FAIRNESS
• In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board (1994), the SCC
endorsed the view –
“[a] distinction might perhaps be made according to the nature
of the decision.
In the case of a tribunal which must decide according to law, it
may be justifiable to disregard a breach of natural justice where
the demerits of the claim are such that it would in any case be
hopeless.”
• Court refused to quash a decision in the face of a breach of procedural fairness in Mobil Oil, but
did so on the basis that it would be “impractical” and “nonsensical” to do so, because, as a result of a cross-appeal,
the tribunal would have no alternative but to reject the application in question.
• The Court described these circumstances as “exceptional,” and reiterated that it “would not wish to
apply it [the exception] broadly.”

STANDARD OF REVIEW –
PROCEDURAL FAIRNESS
• Cardinal - remains good law and the Mobil Oil exception should be rare.
• Judicial review is concerned with deciding what the duty of fairness requires in the circumstances of a particular
decision
• Need to distinguish judicial review on substantive grounds. No similar approach is taken with regard to the duty
of fairness.
• Historically, compliance with the duty of fairness has been regarded as a jurisdictional question and, as such, a
question that must be answered correctly. If it is not, then jurisdiction will be lost, the relevant decision will be quashed, and the decision-
maker will be required to make a fresh decision in accordance with the correct procedure.
Although a successful application for judicial review on fairness grounds will
result in an order quashing a decision and requiring it to be made anew,
nothing necessarily prevents the decision-maker from reaching the same
substantive decision.
However in Baker - a new hearing = outcome.
• Mavis Baker was subsequently granted the humanitarian and compassionate exception she sought and was
allowed to stay in Canada.
• Whether or not a different result obtains on a rehearing, the consequences of a breach of the duty of fairness
may be significant.

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 THE DUTY OF FAIRNESS:
SUMMARY CHECKLIST

STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

Are there any limitations on the application of the duty of fairness
– when is a duty of fairness NOT owed

STEP 2 – DETERMINE THE CONTENT OF THE DUTY OF

FAIRNESS –
What elements of fairness are required in the particular case?

STEP 3 – WHAT IS THE REMEDY FOR A

PROCEDURAL BREACH?

SUBSTANTIVE REVIEW: OVERVIEW

• Introduction
• Deference and the standard of review
• History
• Privative clauses
• CUPE
• Post CUPE
• Beyond privative clauses to expertise
• Reasonableness simpliciter
• Pragmatic and functional approach: Pushpanathan

• Modern Admin Law: Dunsmuir

• Selecting between correctness and reasonableness
• Standard of review analysis/pragmatic and functional approach
1. the presence or absence of a privative clause
2. the purpose of the tribunal as determined by interpretation of enabling legislation
3. the nature of the question at issue (fact, law, mixed fact and law), and
4. the expertise of the tribunal.
• A summary of the standard of review analysis

• Post Dunsmuir – the current approach

• Applying the Standard to the Decision
• Remedies (JR & Private)
• Overlap with procedural fairness
• The Federal Courts

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 SUBSTANTIVE REVIEW
INTRODUCTION

• Judges who hear appeals from decisions made by other judges about the interpretation or
application of a statutory provision have a straightforward task: to determine whether the lower court arrived at the
“right” answer.

• If the appellate judges determine that the answer is “wrong,” they will replace it with the “correct”
answer (assuming that there is always a single, correct answer, which consists of the one given by a majority of
appeal judges)

• The main exception arises where an appellate court is called on to review findings of fact. The
court may hesitate to intervene because they lack the trial judge’s advantage of first-hand exposure to the evidence,
especially viva voce testimony, and because revisiting factual determinations is a poor allocation of scarce judicial
resources.

SUBSTANTIVE REVIEW
INTRODUCTION

• Judicial review of ADM action/decision elicits a different set of questions that do not generally arise in
ordinary appellate jurisprudence:

• Is there always only a single correct answer?

• Who is better situated to determine the answer, the first-level, specialist decision-maker or the
generalist reviewing judge?

• What criteria can assist in assessing relative expertise?

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 SUBSTANTIVE REVIEW
DEFERENCE AND THE STANDARD OF REVIEW

• The short answer to these questions is that a court called on to review (the interpretation or
application of a statutory provision by an ADM) will usually determine that the decision made by the agency, board,
or tribunal assigned primary responsibility under the statute merits deference.
• In Baker, the Supreme Court of Canada endorsed the following articulation of deference as
respect:
“Deference as respect requires not submission but a
respectful attention to the reasons offered or which could
be offered in support of a decision.”
• Deference is then quantified through the standard of review applied by the court to the
challenged decision.
• The standard of review will dictate the amount of deference (respect) that the court should
give to the administrative decision maker.

SUBSTANTIVE REVIEW
DEFERENCE AND THE STANDARD OF REVIEW
• The question of which standard of review to apply is often framed in terms of how much “deference” or
“respect” the reviewing court should show to the tribunal.

• If the court decides to be deferential to the tribunal’s decision:

-it applies the reasonableness standard.

• If the court decides it will NOT show any deference at all: -it applies the correctness standard.
-less deference means stricter review of the administrative action/decision

HIGH DEFERENCE / RESPECT

• REASONABELENSS
LOW DEFERENCE / LOW RESPECT
• CORRECTNESS

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 SUBSTANTIVE REVIEW
THE HISTORY
• In the 20th century, ideological conflict between the expanding administrative state and the courts led
governments in the Anglo-American legal world to withdraw certain tasks from courts and allocate them to newly created,
specialized agencies.
• Frustrated with judicial hostility toward their objectives, the government not only established a parallel
administrative regime through specialized agencies, boards and decision makers, but also enacted statutory provisions,
known as privative or preclusive clauses, that purported to oust entirely judicial review of the legality of administrative
action.
• Ordinarily, judicial review is available for breaches of procedural fairness, errors of law, abuse of
discretion, or factual findings made in the absence of evidence.
• So-called privative clauses were originally intended to prevent courts from interfering with substantive
outcomes of administrative action through the doctrines of error of law or absence of evidence for findings of fact.
• A primary, but not exclusive, motive behind privative clauses was to direct the judiciary to respect the
relative expertise of the administrative or regulatory body.
• Other reasons for privative clauses included the promotion of prompt and final resolution of disputes or
the rationing of scarce judicial resources.

SUBSTANTIVE REVIEW
THE HISTORY – PRIVATIVE CLAUSES

• Privative clauses vary in wording, but usually include a grant of exclusive jurisdiction over the
subject matter, a declaration of finality with respect to the outcome, and a prohibition on any court proceedings to
set the outcome aside.
• For example:
• From the Saskatchewan Workers’ Compensation Act, 1979:
The board shall have exclusive jurisdiction to examine, hear and
determine all matters and questions arising under this Act
and any other matter in respect of which a power,
authority or discretion is conferred upon the board … .
The decision and finding of the board under this Act upon
all questions of fact and law are final and conclusive and no
proceedings by or before the board shall be restrained by
injunction, prohibition or other proceeding or removable by
certiorari or otherwise in any court.

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 SUBSTANTIVE REVIEW
THE HISTORY – PRIVATIVE CLAUSES

• The privative clause poses a problems for the traditional conception of the rule of law.
• On the one hand, a legislative grant of authority is always circumscribed by the terms of the
statute. The common law presumes that citizens retain access to the ordinary courts in order to ensure that
creatures of statute do not exceed or abuse the power granted to them. Making government actors accountable to
the ordinary (and independent) courts is essential to the rule of law.
• The Supreme Court of Canada has even elevated judicial review to a constitutionally protected
principle under s. 96 of the Constitution Act, 1867.
• On the other hand, the doctrine of parliamentary supremacy dictates that the legislator enacts the
law, and the court must interpret and apply the law in accordance with the legislator’s intent.
• A privative clause pits the second principle against the first by stating rather clearly and
unambiguously that the legislator intends to oust the courts from supervising the actions of the administrative
decision-maker.

SUBSTANTIVE REVIEW
THE HISTORY – PRIVATIVE CLAUSES
• Typically, the issues in judicial review may be the interpretation of a statutory provision, inferences from
evidence whose relevance to the outcome depends on a particular statutory construction, or the exercise of discretion.
• Judges faced with a privative clause assigned themselves the task of determining whether the issue fell
“within jurisdiction” and, therefore, within the ambit of the privative clause or was a “jurisdictional question” that determined
the outer boundary of the decision-maker’s authority.
• If it was determined to be a “jurisdictional question”, a court was entitled to review the decision.
• At this juncture, and before the emergence of a variable standard of review, correctness was the implicit
and exclusive standard of review.
• Rather like the early approach to natural justice, review in the face of a privative clause was an all-or-
nothing affair.
• Either the issue was a jurisdictional question, and the courts treated it as they would an issue on
appeal, or it was virtually inoculated from judicial oversight.
• The effectiveness of privative clauses in deterring judicial intervention depended on the ease
and frequency with which courts could designate an issue as determinative of jurisdiction, therefore warranting
strict judicial scrutiny.

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 SUBSTANTIVE REVIEW
THE HISTORY – PRELIMINARY OR COLLATERAL QUESTION” / “ASKING
THE WRONG QUESTION”

• Two techniques deployed by the courts (where the legislature had deliberately and explicitly
excluded them) were
• the “preliminary or collateral question” doctrine, and
• the “asking the wrong question” doctrines
• Bell v. Ontario (Human Rights Commission) [1971] S.C.R. 756 and Metropolitan Life Insurance
Company v. International Union of Operating Engineers, Local 796 [1970] S.C.R. 425]
• If the Courts were inclined to disagree with a decision, they could transform almost any issue into a
preliminary or collateral question, or depict the tribunal as asking the wrong question, in order to impugn a decision
as the product of a flawed chain of reasoning.
• The doctrines have largely been discarded, but the language of jurisdiction lives on. Familiarity
remains important because:
1. the sources of judicial anxiety about jurisdiction, rooted in the rule of law, remain salient.
2. The traces of the “preliminary or collateral question” and “asking the wrong question”
doctrines are not gone.

SUBSTANTIVE REVIEW
THE HISTORY – PRELIMINARY OR COLLATERAL QUESTION” / “ASKING
THE WRONG QUESTION”

• For example:
• the assertion that a statutory provision is properly understood according to the
principles of another area of law survives in the characterization of a legal question as one of
“central importance to the legal system as a whole.” [Toronto (City) v. C.U.P.E., Local 79]
• A reasoning process that inquires into the effect of a given interpretation on
advancing the broader objectives of the statute may still be rejected as a flawed and self-
aggrandizing attempt to expand the jurisdiction of the decision-maker [Barrie Public Utilities v.
Canadian Cable Television Association, 2003 SCC 28, [2003]

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 SUBSTANTIVE REVIEW
THE HISTORY - C.U.P.E. V. N.B. LIQUOR CORPORATION (1979)
• CUPE is a judgment that shifted the legal landscape of the standard of review onto new terrain (
Nicholson did same to ‘procedure’ and Baker to ‘discretion’)
• A public sector union, Canadian Union of Public Employees (CUPE), went on strike. Under the
terms of the New Brunswick Public Service Labour Relations Act, striking employees were prohibited from picketing and
employers were prohibited from using replacement workers.
• The representative union, the Canadian Union of Public Employees, complained to the Board that
the employer was replacing striking employees with management personnel, contrary to the statute.
• But other parts of the Statute excluded management from the definition of employee.
• The Public Service Staff Relations Board of New Brunswick (a labour relations tribunal) had to
interpret a poorly worded provision in its enabling statute concerning the meaning of the word “employee.”
• The Board examined the enabling statute, provided an interpretation of the ambiguous provision,
and ordered the employer not to use management to replace striking workers.
• The Board’s decisions were protected by a privative clause.

SUBSTANTIVE REVIEW:
THE HISTORY - C.U.P.E. V. N.B. LIQUOR CORPORATION
• On review, the Supreme Court held that deference was owed to the Tribunal based on its expertise, the privative
clause, and the reasonableness of its determination.
• The SCC also stated that in cases of statutory ambiguity, and where there are multiple interpretations that are
reasonable, a reviewing court should defer to the interpretation of the expert tribunal.
• CUPE reconfigured the analysis of when, why, and how the doctrine of jurisdictional error ought to be deployed.
Most important, it conveyed a spirit of curial deference, a recognition that administrative decision-makers are not merely
“inferior tribunals,” but specialized bodies that possess a legislative mandate to apply their expertise and experience to
matters that they may be better suited to address than an “ordinary court.”
• CUPE transformed the conceptual basis of substantive review through a reformulation of the institutional
relationship between courts and the administrative state and by advocating judicial retreat from the interventionism of the past.
• This change of heart regarding the appropriate role of judicial review eventually transcended the confines of
privative clauses to encompass substantive judicial review in general, including the exercise of discretion.
• CUPE continues to be hailed by most commentators as a progressive and forward-looking judgment.

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 SUBSTANTIVE REVIEW
THE HISTORY – POST CUPE - JURISDICTION
• In the aftermath of CUPE, many provincial superior courts embraced the message of curial deference,
although the Supreme Court of Canada itself displayed more diffidence.
• In particular, the majority of the Supreme Court seemed to disregard Dickson J.’s caution against
labelling issues as jurisdictional in order to subject them to the more stringent correctness review. For Example:
• In L’Acadie (Syndicat des employés de production du québec et de l’acadie v. Canada (Canadian
human rights commission), [1989] 2 S.C.R. 879), decided a few years after CUPE, a unanimous Supreme Court of
Canada resiled from the idea that jurisdiction ought to be determined at the outset and ruled that a jurisdictional question
attracting a correctness standard could arise anytime and could apply not only to interpretation, but also to findings of fact,
applications of law to facts, or in the fashioning of a remedy.

• Elsewhere in the jurisprudence, when addressing the capacity of tribunals to entertain Charter
challenges to their constitutive statute, the Supreme Court described tribunal “jurisdiction over the whole of the matter” as
jurisdiction over parties, subject matter, and remedy. Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2
S.C.R. 5 at para. 12.

SUBSTANTIVE REVIEW:
THE HISTORY – POST CUPE - JURISDICTION
In Bibeault (1988), the Supreme Court of Canada demonstrated the gap between following the spirit
of CUPE and abiding by its letter.
• The issue in the case was contentious in Quebec’s labour law. A specially convened full panel of the Quebec Labour Court upheld a
labour commissioner’s order. (By a 7:4 majority).
• The Supremes disagreed with the order and attempted to elaborate on the test for determining what constitutes a jurisdictional
question (subject to correctness) and which questions are within a tribunal’s jurisdiction (subject to patent unreasonableness – a lesser standard).
• Bibeault proposed a pragmatic and functional analysis for distinguishing between jurisdictional and non-jurisdiction-conferring
provisions:
• The central question is not whether a question is preliminary or collateral, but “did the legislator intend the question to be within the
jurisdiction conferred on the tribunal?”
• Responding to this question involves an examination not only of “the wording of the enactment conferring jurisdiction on the
administrative tribunal, but the purpose of the statute creating the tribunal, the reasons for its existence, the area of expertise of its members and the
nature of the problem before the tribunal.”
• By framing the question in terms of legislative intent, Beetz J. retains a formal commitment to parliamentary supremacy and a
rejection of a contextual statutory interpretation. He also invokes the expertise of the tribunal as a relevant factor in the analysis (CUPE’s plea for judicial
humility).
• Nevertheless, in his application of the criteria, Beetz J. quickly concludes that the issue before the Court was indeed a jurisdictional
question. Although the judgment by Beetz J. certainly cites CUPE, the word “deference” appears nowhere in the judgment.

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 SUBSTANTIVE REVIEW
THE HISTORY – POST CUPE - NATIONAL CORN GROWERS ASSN.
• The contrasting approaches to the intensity of judicial scrutiny of agency decisions and the concept of deference
inform the substance of the differing opinions written by Gonthier and Wilson JJ. in National Corn Growers Assn. v. Canada (Import
Tribunal) [1990] 2 S.C.R. 1324.
• In this case, the Canadian Import Tribunal conducted an inquiry into the importation of corn grain from the
United States into Canada, an inquiry authorized under s. 42 of the Special Import Measures Act, and determined that continued
importation of grain had already caused, or in the future would likely cause, injury to Canadian producers of corn grain.
• This decision reaffirmed the deputy minister’s prior preliminary conclusions that material injury existed and, thus,
provided support for his decision to impose a provisional duty on American corn in order to protect Canadian corn growers.
• The Federal Court Act, however, allowed for judicial review if a board, commission, or tribunal had, among
other grounds, “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without
regard for the material before it.”
• Because the Tribunal’s decision was based on a factual finding of harm informed by its expertise, and because the
Act also contained a privative clause (s. 76(1)) stating that “every order or finding of the Tribunal is final and conclusive,” this meant that the
decision would be assessed on the (now obsolete) standard of patent unreasonableness so that courts could best respect legislative intent.
• Review turned on whether or not it was patently unreasonable for the tribunal to refer to the General
Agreement on Tariffs and Trade (GATT) in interpreting the SIMA, whether the tribunal’s interpretation of s. 42 in its constitutive
legislation was unreasonable, and whether the tribunal reached its decision without any cogent evidence to support its determination of
material injury.

SUBSTANTIVE REVIEW
THE HISTORY – POST CUPE - NATIONAL CORN GROWERS ASSN.

• In a concurring judgment, Wilson J. evoked the CUPE case to caution the majority (and other like-minded
judges) about the effects of engaging in a probing examination of a decision. Wilson J. believed that such a detailed examination
sanctioned judicial intervention rather than the restraint represented by CUPE (where the Supreme Court held that deference was owed
to the Tribunal based on its expertise, the privative clause, and the reasonableness of its determination)
• The majority decision written by Gonthier J. also concluded that the tribunal was not unreasonable with respect
to any of these three matters. To reach this result, Gonthier J. delved deeply into both how the tribunal came to the decision as well as
the decision’s merits. He stated:
“With respect, I do not understand how a conclusion can be reached as
to the reasonableness of a tribunal’s interpretation of its enabling statute
without considering the reasoning underlying it, and I would be surprised
if that were the effect of this Court’s decision in C.U.P.E.”
• National Corn Growers illustrates how different theoretical models of adjudication can help explain how judges
understand their institutional role as well as how these models shed light on the underlying rationale behind the judicial choice of the
standard of review.
• Gonthier’s judgment underscored the active role of the courts in interpreting the law and in demanding public and
principled justifications from the tribunal.

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 SUBSTANTIVE REVIEW
THE HISTORY – POST CUPE - ROYAL OAK

• Fed up with the active role of the courts, legislators switched tactics and decided instead to direct the courts on the
legislature’s intended standard of review by explicitly stating in the statute what standard to apply to an ADM.
• A central common-law precept of statutory construction is that interpretation by the courts should express the will of
the legislator. In theory, then, a legislator could revise and refine a privative clause in order to better effectuate the ouster of the courts.
• However, a few years after CUPE, the Supreme Court of Canada obviated the possibility of completely insulating
provincial administrative bodies from judicial review.
• In Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, the Supreme Court of Canada
was confronted with a privative clause in s. 22 of the federal Canada Labour Code that purported to thwart judicial review
“on any ground … including the ground that the … decision … is beyond the
jurisdiction of the Board to make … or that, in the course of any proceeding,
the Board for any reason exceeded or lost its jurisdiction.”
• The Court did not pause to contemplate the legislator’s intention in granting a tribunal exclusive jurisdiction to
determine its own jurisdiction before proceeding to subject the decision to review, albeit on the more deferential standard of patent
unreasonableness.

SUBSTANTIVE REVIEW
THE HISTORY – POST CUPE - PASIENCHYK

• In Pasienchyk v. Saskatchewan (Workers’ Compensation Board),

[1997] 2 S.C.R. 890, L’Heureux-Dubé J. stated:
“[s]ince, as a matter of constitutional law, a legislature may not,
however clearly it expresses itself, protect an administrative body
from review on matters of jurisdiction, it also cannot be left to
decide freely which matters are jurisdictional and which come
within the Board’s exclusive jurisdiction.”
• In terms of the tension between fidelity to parliamentary intent and the common-law presumption of
access to the ordinary courts, the Supreme Court’s expansive interpretation of s. 96 of the Constitution Act, 1867
ensures that the common-law presumption trumps the former [Crevier]

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 SUBSTANTIVE REVIEW
BEYOND PRIVATIVE CLAUSES TO EXPERTISE AND DEFERENCE

• Eventually, the court embraced CUPE and moved beyond privative clauses and its focus on jurisdiction
to expertise and deference.

• “should the court defer?” became a question asked not only where statutes contain privative clauses,
but also where statutes contain:
• finality clauses (states that the decision of the agency is final and binding on the parties, but
the clause says nothing about judicial review)
• leave intact the option of judicial review
• or even provide a full appeal to the courts on questions of law and fact.

SUBSTANTIVE REVIEW
BEYOND PRIVATIVE CLAUSES TO EXPERTISE AND DEFERENCE

• Pezim v. British Columbia (Superintendent of Brokers) [1994] 2 S.C.R. 557 is noteworthy because the
issue concerned a question of law (whether newly acquired information about asset value constituted a “material
change” requiring disclosure) and the enabling statute provided for a right of appeal.
• Iacobucci J.’s judgment offers a time-lapse photograph of the rapid shift in the jurisprudence from
the language of “jurisdiction” and “privative clause” to “expertise” and “deference.”
• At the outset of his review of principles of judicial review, the decision hews closely to Bibeault’s
approach but later on states:
“even where there is no privative clause and where there is a statutory
right of appeal, the concept of the specialization of duties requires that
deference be shown to decisions of specialized tribunals on matters
which fall squarely within the tribunal’s expertise.”
• The presence of a privative clause was apparently not so crucial after all, and the fundamentally
important “jurisdictional question” was supplanted by “expertise” as the key determinant of standard of review. [also in
United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316].

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 SUBSTANTIVE REVIEW
AN INTERMEDIATE STANDARD OF REVIEW: REASONABLENESS SIMPLICITER

• Although in Pezim, the Court concluded that the interpretation of the statutory provision warranted curial deference,
it failed to describe the applicable standard of review as patently unreasonable. Instead, Iacobucci J. simply adverted to the need for
considerable deference.
• Three years later, in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748],
Iacobucci J. made explicit what he had only hinted at in Pezim—namely, an intermediate standard of review between patent
unreasonableness and correctness. He labelled the standard “reasonableness simpliciter” and declared it (retrospectively) as the
standard of review applied in Pezim.
HIGH-------------------- DEFERENCE --------------------LOW
PATENT UNREASONABLENESS  REASONABLENESS SIMPLICITER  CORRECTNESS

• To understand how the perceived need for a “middle ground” emerged, one should return to Pezim’s shift in
emphasis from privative clauses to relative expertise.
• A focus on the presence or absence of a privative clause (and the attendant jurisdictional – non-jurisdictional
question) aligns with two standards of review embodying the presence or absence of deference.
• Shifting to an emphasis on relative expertise does not map easily onto the 2 standards, which may help to
explain why the Court insert reasonableness simpliciter into the spectrum.

SUBSTANTIVE REVIEW
AN INTERMEDIATE STANDARD OF REVIEW: REASONABLENESS SIMPLICITER

• Southam concerned a finding by the Competition Tribunal that Southam’s acquisition of various newspapers within a given advertising
market substantially lessened competition. By way of remedy, the tribunal gave Southam the option of divesting itself of one of two community papers.
• The statute provided for an appeal directly to the Federal Court of Appeal. Two aspects of the tribunal’s decision were the subject of appeal
to the Supreme Court: the dimensions of the relevant market within which to assess impact on competition and the remedy of divestment.
• After reviewing various factors pertinent to the standard of review, Iacobucci J. concluded that some factors pointed toward deference and
some away from it so the proper standard of review was found to fall somewhere between the ends of the spectrum.
• deference: the fact that the dispute is over a question of mixed law and fact; the fact that the purpose of the Competition Act is broadly
economic, and so is better served by the exercise of economic judgment; and the fact that the application of principles of competition law falls squarely within the area
of the Tribunal’s expertise.
• a more exacting form of review: the existence of an unfettered statutory right of appeal from decisions of the Tribunal and the
presence of judges on the Tribunal.
• Because the expertise of the Tribunal, which is the most important consideration, suggests deference, Iacobucci J. concluded that a more
deferential than exacting standard was warranted.
• The middle ground is, of course, reasonableness simpliciter: “an unreasonable decision is one that, in the main, is not supported by any
reasons that can stand up to a somewhat probing examination.”
HIGH-------------------- DEFERENCE --------------------LOW

PATENT UNREASONABLENESS  REASONABLENESS SIMPLICITER  CORRECTNESS

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 SUBSTANTIVE REVIEW
A PRAGMATIC AND FUNCTIONAL APPROACH - PUSHPANATHAN
• The insertion of an intermediate standard of review did little to promote predictability or determinacy in this area of
administrative law.
• Shortly after Southam, the Supreme Court of Canada took the opportunity to consolidate and summarize the factors to be
taken into account in determining the appropriate standard of review in Pushpanathan v. Canada (Minister of Citizenship and Immigration)
• This case concerned the interpretation of a provision in the Immigration Act (incorporating article 1F(c) of the UN
Convention Relating to the Status of Refugees) that excludes from refugee status those persons “guilty of acts contrary to the purposes and
principles of the United Nations.”
• Pushpanathan had made a refugee claim in Canada. Before his claim was heard, he was convicted in Canada of the
offence of conspiracy to traffic in a narcotic.
• He was subsequently excluded from refugee protection under article 1F(c) on the basis of his conviction.
• The issue in the case concerned whether “acts contrary to the purposes and principles of the United Nations” included
a criminal conviction for drug trafficking in the country of asylum.

• A distinctive feature of the Immigration Act (also in Baker) was the mechanism for review.
• The statute contained no privative clause or right of appeal.
• Instead, judicial review could only commence with leave of a judge of the Federal Court, and no reasons were
required where leave was denied.
• If leave was granted and the case heard, the losing party could only appeal to the Federal Court of Appeal if the trial
judge certified “a serious question of general importance.”

SUBSTANTIVE REVIEW
A PRAGMATIC AND FUNCTIONAL APPROACH: PUSHPANATHAN
• Writing for the Court, Bastarache J. reformulated Bibeault’s pragmatic and functional question into:
“Did the legislator intend this question to attract judicial deference?”
• He organized the factors relevant to discerning this legislative intent into four categories:
(1) privative clause,
(2) expertise,
(3) purpose of the act as a whole and of the provision in particular, and
(4) nature of the problem (question of law, fact, or mixed law and fact).
• Jurisprudence after Pushpanathan routinely relied on these four categories. Yet it remains unclear whether, where, and to what extent these
factors exert influence after Dunsmuir. Therefore, acquaintance with the elements of the pragmatic and functional analysis remains important.
• Although the Pushpanathan Court identifies four separate factors, arguably there are only two ingredients in the deference calculus:
1. the legislator’s direct or indirect pronouncement about judicial supervision (privative clause, finality clause, common-law judicial review,
statutory judicial review, appeal) and

2. the reviewing court’s assessment of the agency’s relative expertise (the inquiry into statutory purpose and nature of the problem
seem to address specific indicia of expertise). In Pushpanathan itself, the Court admits that “purpose and expertise often overlap,” and that the basis for greater
scrutiny of general questions of law than questions of fact relates to the relative expertise of courts versus agencies.

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 SUBSTANTIVE REVIEW
A PRAGMATIC AND FUNCTIONAL APPROACH- BAKER

• A year after Pushpanathan, Baker expanded the reach of the standard of review inquiry to
encompass judicial review of
1. discretion
2. questions of fact
3. mixed fact and law
4. Law

• L’HeureuxDubé J. for the majority wrote:

“The pragmatic and functional approach can take into account the fact
that the more discretion that is left to a decision-maker, the more
reluctant courts should be to interfere with the manner in which decision-
makers have made choices among various options. However, though
discretionary decisions will generally be given considerable respect, that
discretion must be exercised in accordance with the boundaries imposed
in the statute, the principles of the rule of law, the principles of
administrative law, the fundamental values of Canadian society, and the
principles of the Charter.”

SUBSTANTIVE REVIEW
THE MODERN APPROACH: DUNSMUIR
• After Southam ushered in the intermediate standard of review—reasonableness simpliciter—commentators,
practitioners, and even some lower court judges complained about the unpredictability, and sheer confusion generated by three
standards of review.
• The balancing test for determining which of three standards of review should apply often produced indicators
pointing toward and away from deference, thereby failing to provide predictable or reliable guidance to lawyers and litigants.
• In his concurring judgment in Toronto (City) v. C.U.P.E., Local 79,110 LeBel J. canvassed the widespread
discontent with the direction of Supreme Court jurisprudence and declared that patent unreasonableness and reasonableness were not
clearly distinguishable.
• He also provided a thorough and thoughtful analysis of the sordid history of the rise and application of three
standards and issued a plea for the abandonment of three standards in favour of a return to “a two standard system of review,
correctness and a revised unified standard of reasonableness.”

• Five years later, in the transformative case Dunsmuir v. New Brunswick (2008), the Supreme Court reduced the
standards of review from three to two: correctness and reasonableness (with reasonableness subsuming the most deferential
standard of patent unreasonableness)
• The Court’s goal in Dunsmuir was to provide greater guidance for reviewing courts, counsel, litigants, and decision-
makers by striving to introduce clarity, fairness, consistency, and simplicity into administrative law.

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 SUBSTANTIVE REVIEW
THE MODERN APPROACH: DUNSMUIR
• Dunsmuir requires a reviewing court, as a default starting position, to assume a deferential stance vis-
à-vis administrative decision making—the default standard of review should thus be “reasonableness” as opposed to
“correctness.”
• Dunsmuir arose out of New Brunswick, involved employment, and featured confounding statutory text.
• Dunsmuir was dismissed from his civil service position in the Department of Justice. He received
severance, but insisted that he was also owed a duty of fairness prior to termination. He grieved unsuccessfully, then
appealed to an adjudicator (the procedural fairness aspects of the case were covered previously).
• The adjudicator appointed to address Dunsmuir’s grievance interpreted the relevant statutory
provisions in a manner that allowed him to consider the reasons for discharge, even though the employer did not assert
that Dunsmuir was dismissed for cause.
• The question of law was whether the adjudicator was entitled to inquire into whether the employer
actually dismissed Dunsmuir for cause and, by extension, whether just cause existed.
• The adjudicator determined that the statute authorized him to inquire into the reasons for
discharge as part of the grievance arbitration, but then went on to find that the dismissal was, on the facts, not for cause.

SUBSTANTIVE REVIEW
THE MODERN APPROACH: DUNSMUIR
• One issue before the Supreme Court was the appropriate standard of review for the question of law concerning the
adjudicator’s authority to inquire into the reasons for dismissal.
• The Dunsmuir majority acknowledged that its pragmatic and functional approach had attracted criticism for its “theoretical
and practical difficulties” and that it had “proven difficult to implement.”
• Despite the deficiencies of past jurisprudence, the Court did not resile from its post CUPE endorsement of deference as a
principle of substantive judicial review.
• En route to introducing the new standard-of-review analysis, the majority rehearsed the rationale for deference: Deference
in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of
decision makers.
• A policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation
of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and
nuances of the legislative regime.”

• For the Court, the problem lay not in the concept of deference or its virtues, but in the challenge of putting it into operation.
After surveying the evolution of judicial review over the past 50 years, the majority offered the following diagnosis:
• The Court has moved from a highly formalistic, artificial “jurisdiction” test that could easily be manipulated, to a highly
contextual “functional” test that provides great flexibility but little real on-the-ground guidance, and offers too many standards of review. What is needed is
a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise.
• A simpler test is needed.

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 SUBSTANTIVE REVIEW
THE MODERN APPROACH: DUNSMUIR

• The SCC walked the legal test back from 3 to 2 standards of review— correctness and reasonableness,
and proposed the following:
1. a different methodology for choosing between correctness and reasonableness.
• default is deference (reasonableness) unless exceptions warrant correctness
• past cases have already decided the standard of review to be applied to this type of
administrative decision.

2. a rebranded pragmatic and functional test as the standard-of-review analysis (as synopsized in
Pushpanathan and applied thereafter) laying out four factors to be evaluated and weighed:
1. the presence or absence of a privative clause
2. the purpose of the tribunal as determined by interpretation of enabling legislation
3. the nature of the question at issue (fact, law, mixed fact and law), and
4. the expertise of the tribunal.

SUBSTANTIVE REVIEW
DUNMUIR: SELECTING BETWEEN CORRECTNESS & REASONABLENESS.

• The pattern of subsequent jurisprudence suggests that the new standard of review
methodology is no longer a balancing test, but appears to more closely resemble a defeasible
rule:

the default position is deference

unless one of the exceptions apply

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 SUBSTANTIVE REVIEW
DUNMUIR: SELECTING BETWEEN CORRECTNESS AND REASONABLENESS.

• The Court casts the net of deference widely over a range of issues:
• Where the question is one of fact, discretion or policy, deference will usually apply automatically.
• same standard must apply to the review of questions where the legal and factual issues are
intertwined with and cannot be readily separated.
• The Court ought to defer to the interpretation of a “discrete and special administrative regime in
which the decision maker has special expertise.”
• the Court anticipates that “[d]eference will usually result where a tribunal is interpreting its own
statute or statutes closely connected to its function, with which it will have particular familiarity.”
• Deference will even be warranted “where an administrative tribunal has developed particular
expertise in the application of a general common law or civil law rule in relation to a specific statutory context.”
• privative clause are acknowledged as “a statutory direction from Parliament or a legislature
indicating the need for deference.”

 Checklist

SUBSTANTIVE REVIEW
DUNMUIR: SELECTING BETWEEN CORRECTNESS AND REASONABLENESS.

• In Dunsmuir and subsequent cases, reasonableness appears as the presumptive standard in

administrative law when:
(1) a specialized or expert tribunal;
(2) interpreting its enabling or home statute;
(3) on a question of fact or mixed fact and law;
(4) or exercising broad statutory discretion;
(5) correctly applies all legal principles or tests;
(6) to construct an interpretation of its statutory powers that falls within range of possible
acceptable interpretations;
(7) resulting in a decision that demonstrates justification, transparency, and intelligibility;
(8) and produces a reasonable outcome that is defensible in respect of the facts and law.

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 SUBSTANTIVE REVIEW
DUNMUIR: SELECTING BETWEEN CORRECTNESS AND REASONABLENESS.

• If the default position is deference, what type of exceptions will presume a court to
adopt the standard of Correctness:
• where the question of law is “a question of central importance to the legal system as a
whole and outside the adjudicator’s specialized area of expertise”,
• in constitutional questions,
• in “true” questions of jurisdiction: “where the tribunal must explicitly determine whether
its statutory grant of power gives it the authority to decide a particular matter” and
• questions regarding the jurisdictional lines between two or more competing
specialized tribunals.

 Checklist

SUBSTANTIVE REVIEW
DUNMUIR: SELECTING BETWEEN CORRECTNESS AND REASONABLENESS.

• While Dunsmuir engaged a question of law, it was not one of central importance to the legal
system, and so the court applied the standard of reasonableness.
• Beyond these guidelines, the Supreme Court tries to aid courts from spending so much
jurisprudential energy on fixing the standard of review instead of applying it to the facts
• It counsels a reviewing court to
first see if any past cases have already decided the
standard of review to be applied to this type of
administrative decision.

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 SUBSTANTIVE REVIEW:
A SUMMARY OF THE STANDARD OF REVIEW ANALYSIS

Reasonableness Correctness
Question of fact Constitutional questions (including those related to
division of powers)
Questions of mixed fact and law Issues of general law that fall outside the ADM’s area
of expertise (including “a question of central
importance to the legal system as a whole and
outside the adjudicator’s specialized area of expertise
Exercise of discretion Questions directly related to the ADM’s jurisdiction
and scope of his/her power or authority (including
“true” questions of jurisdiction: “where the tribunal
must explicitly determine whether its statutory grant
of power gives it the authority to decide a particular
matter”)
Policy questions Questions regarding the jurisdictional lines between
two or more competing specialized tribunals.
ADM interpreting its own enabling statute as it Absence of a privative clause
relates to its function (including costs)
Issues of general law where the ADM has
developed a particular expertise
Existence of a privative clause
A statutory right to appeal (Southam) A statutory right to appeal ( Khosa)

SUBSTANTIVE REVIEW
DUNSMUIR: THE STANDARD OF REVIEW ANALYSIS- THE 4 FACTORS

• If the case at bar does not fit into one of these precedential categories, only then does the
reviewing court move to a more in-depth analysis:
the standard of review analysis(previously called “the
pragmatic and functional analysis”).
• In the standard of review analysis, the reviewing court weighs four non-exhaustive factors:
1. the presence or absence of a privative clause
2. the purpose of the tribunal as determined by
interpretation of enabling legislation
3. the nature of the question at issue (fact, law, mixed fact and law), and
4. the expertise of the tribunal.
 Checklist
• the standard of review analysis is contextual and does not necessarily involve all of the listed
factors Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009]

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 SUBSTANTIVE REVIEW:
1. THE PRESENCE OF ABSENCE OF A PRIVATIVE CLAUSE

• A privative clause is a provision in the statute that attempts to limit or exclude judicial review by
saying that the tribunal’s decision is final and not open to review by the courts. Also known as a preclusive clause.
• The court’s historical treatment of such clauses is a twisted one:
• beginning with an approach that readily allowed courts to ignore such express clauses (by arguing
that the error made by the board or tribunal went to the very jurisdiction it had to make the decision, and thus a decision
that must be reviewable by the court)
• to a time where the existence of a privative or preclusive clause meant that a standard of
patent unreasonableness must automatically apply.

• The modern approach is to treat the existence of a privative or preclusive clause as strongly
determinative but not definitive in pointing toward a standard of reasonableness (now the most deferential
standard possible).

SUBSTANTIVE REVIEW:
1. THE PRESENCE OF ABSENCE OF A PRIVATIVE CLAUSE
• The language used in a privative clause varies and consequently so does its effect and the
interpretation given to it by the court.
• Courts will generally distinguish between: full”/strong privative clause and weak privative clause

1. Full or strong privative clause

• Suggests that a high level of deference is warranted. A particularly strong example of a privative clause might
be: “The Board shall exercise exclusive jurisdiction to determine the extent of its jurisdiction under this Act or the regulations, to
determine a fact or question of law necessary to establish its jurisdiction, and to determine whether or in what manner it shall
exercise its jurisdiction.”
• For Example: Labour Relations Act, 1995, SO. 1995, c.1 Sched. A, s.116 (pp.
699):
No decision, order direction, declaration or ruling of the Board shall be
questioned or reviewed in any court, and no order shall be made or
process entered, or proceeding taken in any court, whether by way of
injunction, declaratory judgment, certiorari, mandamus, prohibition, quo
warranto, or otherwise, to question, review or prohibit or restrain the
Board or any of its proceedings

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 SUBSTANTIVE REVIEW:
1. THE PRESENCE OF ABSENCE OF A PRIVATIVE CLAUSE

2. A statute may also contain a weak privative clause

• sometimes referred to as a finality clause
• Usually a weak privative clauses will state that the decision of the decision-maker is “final and conclusive”or that
the decision-maker has “sole or exclusive jurisdiction in certain matter” without necessarily precluding a judicial review.
• For Example: Workers Compensation Act, 1979, SS 1979, c. W-17.1s. 22(2) (p. 699)
The decision and finding of the board under this Act upon all questions of
fact and law are final and conclusive.

• In Dunsmuir the SCC held that the existence of a privative clause gives rise to a strong indication of review on
a reasonableness standard.
• However, the court also stated that the presence of a privative clause is not determinative and cannot oust
the jurisdiction of the court to review the actions and decisions of administrative bodies because neither Parliament nor any
legislature can completely remove the courts’constitutionally protected power to review the actions and decisions of
administrative bodies.

SUBSTANTIVE REVIEW:
1. THE PRESENCE OF ABSENCE OF A PRIVATIVE CLAUSE
• In Canada (Citizenship and Immigration) v. Khosa, Rothstein J. mounts a position against detaching deference from
privative clauses and defends the primacy of legislative intent and the singularity of the privative clause by emphasizing the significance of its
absence.
• Khosa concerned a discretionary decision by the Immigration Appeal Division of the Immigration and Refugee Board
not to stay the deportation order of a non-citizen convicted of dangerous driving causing death.
• The grounds for judicial review were enumerated in s. 18.1(4) of the Federal Courts Act.
• The statute was silent about the applicable standard of review, except to state that erroneous findings of fact
warranted relief if made “in a perverse or capricious manner or without regard for the material before it.”
• The majority in Khosa determined that deference was warranted in the case at bar and the appropriate standard of
review is reasonableness, but not before reviving the Pushpanathan factors and offering the following gloss on the standard-of-review analysis:
• “A privative clause is an important indicator of legislative intent. While privative clauses deter judicial
intervention, a statutory right of appeal may be at ease with it, depending on its terms.”
• Although Rothstein J. agreed with the majority that the appropriate standard of review was reasonableness, he insisted that
the basis for deference lay exclusively in the language of the statutory provision dealing with errors of fact, not in any broader deferential stance
derived from the common law.
• According to Rothstein J., “where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and
unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court
to apply a correctness standard as it does in the regular appellate context.”

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 SUBSTANTIVE REVIEW:
1. THE PRESENCE OF ABSENCE OF A PRIVATIVE CLAUSE

What about a statute that has a right of appeal?

• Rather than clarify the weight that a privative clause exerts in favour of deference, Khosa adds
uncertainty about the weight that a statutory appeal exerts against it.
• The general rule, prior to Dunsmuir, was that the existence of a right of appeal is indicative that a
tribunal’s decision was NOT meant to be final and that a high level of deference is NOT warranted.
• However, this rule was modified in Southam where the SCC introduced the deferential standard of
reasonableness in the face of a statutory right of appeal.
• Dunsmuir does not specifically deal with how a right of appeal is to be considered in the standard of
review analysis.
• However, Dunsmuir suggests that decisions of a tribunal on the interpretation of its own statute or
closely related statutes are “usually” entitled to deference and that questions of law (NOT a question of central
importance to the legal system and NOT outside the decision-makers expertise) “may” be compatible with a standard of
reasonableness.

SUBSTANTIVE REVIEW
2. THE PURPOSE OF THE TRIBUNAL AS DETERMINED BY INTERPRETATION OF ENABLING LEGISLATION
• The reason for examining statutory purpose is to ensure the courts avoid legal interpretations that
contradict or frustrate that purpose.
• Where the statute can be described as “polycentric” i.e. engaging a balancing of multiple interests,
constituencies, factors, and contains a significant policy element, more judicial restraint is
warranted. (Bell Canada v. Bell Aliant Regional Communications, 2009 SCC).
• The Bell Canada case is an example where the court showed deference to a discretionary /policy based
decision of the CRTC
• Section 7, Telecommunications Act, SC 1993 c. 38: It is hereby declared that telecommunications
performs and essential role in the maintenance of Canada’s identity and sovereignty and that
the Canadian telecommunications policy has as its objectives

(a) to facilitate the orderly development throughout Canada of a telecommunications system

that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and
its regions;
(b) to render reliable and affordable telecommunications services of high quality accessible
to Canadians in both urban and rural areas in all regions of Canada;
(c) to enhance the efficiency and competitiveness, at the national and international level
of Canadian telecommunications

• Including purpose as a factor to consider may be another way of saying the courts should respect the
choices of the legislatures and the delegated public powers.
• BUT … statutory purpose is just one factor to look at in the entire context of the
standard of review analysis – if the ADM has gone astray of the very purpose of
the statute then the courts may be more justified in stepping in and showing
less deference

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 SUBSTANTIVE REVIEW
3. THE NATURE OF THE QUESTION AT ISSUE

• This factor requires the court to review the nature of the particular issues raised in judicial review
• Prior to Dunsmuir, the most important factor in the standard of review analysis was expertise.
After Dunsmuir, the focus shifted to the nature of the question.
SCC stated that determination of the nature of the question may
create a strong presumption in favour of deference such that it may
be unnecessary to examine other factors

• The courts have distinguished the decisions of administrative tribunals into various categories:
• Question of fact;
• Question of mixed fact and law;
• Question of law (a subcategory of which is jurisdictional errors);
• Discretionary decisions; and
• Policy decisions

• According to Dunsmuir, where the question is one that involves question of fact, discretion or policy,
deference will usually apply automatically

SUBSTANTIVE REVIEW
3. THE NATURE OF THE QUESTION AT ISSUE – QUESTION OF FACT

Questions of fact:
• A standard of deference will also apply to questions of fact.
• Questions of fact are about what events took place between the parties.
• The reasons for deference:
• The primary decision-maker has first hand access to the information on which the factual
assessment was made and also to the regulatory context in which the decision was made
• The primary decision-maker is better positioned to evaluate and weigh the evidence in
relationship to the factual issues in dispute, particularly where the evidence flows from viva voce evidence.

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 SUBSTANTIVE REVIEW
3. THE NATURE OF THE QUESTION AT ISSUE – QUESTION OF LAW

Question of law:
• Questions of law are about what is the correct legal test.
• The application of an incorrect legal standard, a failure to consider a required element of a legal test, or
an error in principle is an error in law . Housen v. Nikolaisen, [2002] 2 S.C.R. 235
• Where an error with respect to a finding can be attributed to the application of an incorrect standard, the
characterization of the standard, a failure to consider a required element of a legal test, or similar error in principle, such
an error can be characterized as an error of law
• The SCC held that a question of jurisdiction (and error) is intended in the narrow sense of whether or
not the tribunal had authority to make the inquiry [United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City)
[2004] 1 SCR 485]
• True jurisdictional errors will always be reviewed on correctness standard but will likely only occur in
exceptional cases. [Public Services Alliance of Canada v. Canadian Federal Pilots Association 2009 FCA 223]

SUBSTANTIVE REVIEW
3. THE NATURE OF THE QUESTION AT ISSUE – QUESTION OF LAW

Question of mixed fact and law:

• A standard of deference will also apply with respect to questions where the legal and factual
issues are “intertwined.”
• Questions of mixed fact and law are questions about whether the facts satisfy the legal tests. See
Canada (Director of Investigation and Research, Competition Act) v. Southam
• Matters of mixed fact and law lie along a spectrum; where the legal principle is not readily
extricable, then the matter is one of mixed law and fact: Housen v. Nikolaisen
• If fact-finding is integral to the ultimate determination of the question, the question is an issue of
mixed fact and law: Ferreira v. Esteireiro, 2013 ONSC 4620

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 SUBSTANTIVE REVIEW:
3. THE NATURE OF THE QUESTION AT ISSUE –DISCRETIONARY QUESTIONS

Discretionary questions:

• Dunsmuir states that discretionary decisions are to be afforded deference.

• Discretionary decisions are to be determined by examining the relevant statute and seeing how the statute
frames the decision-maker’s authority.
• Usually, a Statute tends to be framed in broad and general terms so that it affords decision-
makers‘choices from a broad range of options.
• Various terms may point towards discretionary decision
• use of phrases such as “in the public interest’,‘in the circumstances’ or ‘in the opinion’ indicates
that the legislature intended the decision-maker to use his or her judgment.

• Discretionary decisions like all other administrative decisions must be made within the bounds
conferred by statute, but will attract considerable deference

SUBSTANTIVE REVIEW:
3. THE NATURE OF THE QUESTION AT ISSUE – POLICY DECISIONS

Policy decisions:

• Similar to discretionary decisions, policy decisions also leave decision-makers with a range of
administrative responses.
• Polycentric issues require a decision-maker to consider numerous interest simultaneously and
balance the benefits and costs to many different parties [Bell Canada v. Bell Aliant Regional Communications at p.
739]

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 SUBSTANTIVE REVIEW:
4. THE EXPERTISE OF THE TRIBUNAL

Pre Dunsmuir
• Expertise was treated as the single most important fact in the standard of review analysis.

Post Dunsmuir
• Now it is simply one of the four factors to be considered
• Expertise refers to both questions of law and fact and also refers to the expertise of the tribunal
relative to the court

SUBSTANTIVE REVIEW:
4. THE EXPERTISE OF THE TRIBUNAL
How should the court assess expertise?
• The court must consider the nature of the tribunal’s expertise and assess its own expertise
relative to the tribunal and also identify the specific issue before the tribunal relative to this expertise
• The general aims and purpose of the statute can also provide an indication of expertise (e.g. If a
tribunal has to deal with highly scientific or technical matters such as the securities commission, international trade
tribunals and telecommunication bodies)
• Tribunals can also acquire expertise through “field sensitivity” that a decision maker acquires from
years of experience in its area of specialization
• The court might also assess the statutory criteria for the appointment:
• what are the qualifications that are required of members?
• are members required to have economic, financial or technical expertise?
• length of their term?

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR – THE CURRENT APPROACH
What is the post Dunsmuir approach – the current approach to substantive review?
• Consider how Dunsmuir has been interpreted by other courts and in other cases. No, it hasn’t been construed perfectly
consistently and there are elements of post-Dunsmuir cases (like Khosa) that seem to go back to a “pragmatic and functional” test. But consider
also the recent cases and what they seem to suggest about Dunsmuir’s meaning.
• The recent cases of Smith, Nor-Man, Newfoundland Nurses and McLean interpreting Dunsmuir propose a pretty simple
standard of review test:
• Look at the use of “default” assumptions about the standard of review driven by the nature of the question before the court.
• Note the secondary role of the “pragmatic and functional” test variables.
• Therefore, in modern admin law, it would be incorrect to rely strictly on these variables and pay no heed first to the “defaults”.

• Also, Also pay attention to a new wrinkle introduced by the SCC in Doré, which deals with the Charter.
• Doré looks at what standard of review is applied to an exercise of discretion by an administrative decision maker who is
considering a Charter right in making their discretionary decision. Short answer: “reasonableness”.
• Once you have determined the appropriate standard of review (correctness or unreasonableness), you may also be
required to apply that standard to a substantive ruling or decision.
• For this, you should be familiar with the standards and tests that the SCC has identified for conducting this exercise and be
able to deploy them appropriately.

SUBSTANTIVE REVIEW:
POST DUNMUIR – EXCEPTIONS TO DEFERENCE
• Recall from Dunsmuir that deference and reasonableness is the default BUT there are exceptions to deference that
lead to correctness:
• where the question of law is “a question of central importance to the legal system as a whole and outside the
adjudicator’s specialized area of expertise”
• in constitutional questions
• In questions of jurisdiction
-in “true” questions of jurisdiction: “where the tribunal must explicitly determine whether
its statutory grant of power gives it the authority to decide a particular matter” and
-questions regarding the jurisdictional lines between two or more competing specialized
tribunals.

• Questions of jurisdiction and constitutionality might be understood as illustrations of matters that lie outside the
expertise of administrative decision-makers.
• Questions of “central importance to the legal system as a whole” are assigned to correctness review only if they are
also “outside the specialized area of expertise of the administrative decision maker.”
• Issues concerning the jurisdictional boundaries between different administrative tribunals seem more ambiguously
tied to expertise, but also link back to the allocation of questions of true jurisdiction to the correctness standard.
• The Dunsmuir majority was concerned about precedent: “Because of their impact on the administration of justice as
a whole, such questions require uniform and consistent answers.”

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 SUBSTANTIVE REVIEW:
POST DUNSMUIR – INTERPRETING JURISDICTION
• Thus far, the post-Dunsmuir Supreme Court seems committed to exercising restraint in labelling an issue as jurisdictional and thereby
subject to the stricter standard of correctness. For example:
• The adjudicator had jurisdiction over the parties (the employer and employee) and over the subject matter (discharge, suspension, or
other financial penalty), and that sufficed.

• In Smith v. Alliance Pipeline, the Court swiftly disposed of an argument that the definition of “costs” under an expropriation statute is
jurisdictional. Arbitration committees “doubtless have the authority to make the inquiry whether ‘costs’ under s. 99(1) refer solely to costs incurred in the proceedings
before them, a determination that plainly falls within their statutory grant of power.”
• The post-Dunsmuir Court has been so alert not to brand something as jurisdictional that the question before the courts is no longer “is this
thing a jurisdictional question?,” but “is there such thing as a jurisdictional question?”
• Because the Supreme Court already cast the cloak of constitutional protection over judicial review (thereby foreclosing any literal application
of a privative clause), and Dunsmuir identified other criteria for applying the correctness standard, extinguishing the category of jurisdictional question jeopardizes
neither the resilience of judicial review nor correctness scrutiny.
• In a technical sense, the majority leaves the issue unresolved, concluding instead that jurisdictional questions are exceptional and none have
come before it since Dunsmuir.
• It remains unclear whether the jurisdictional question will die a peaceful death or simply lay dormant until the Supreme Court decides to
resurrect it. Perhaps it is no coincidence that the vocabulary of jurisdiction feels most natural when invoked in respect of entities that also happen to be geographically
bounded, such as municipalities, provinces, and states.
• This makes all the more notable the 2012 judgment in Catalyst Paper Corp. v. North Cowichan (District), which concerned a municipal tax
bylaw. The Supreme Court resolutely avoided the term “jurisdiction,” or vires, and consistently spoke of deference and reasonableness.

SUBSTANTIVE REVIEW:
POST DUSNMUIR – INTERPRETING A QUESTION OF GENERAL IMPORTANCE
• In Celgene Corp. v. Canada (Attorney General) and again in Smith v. Alliance Pipeline, the majority affirmed that interpretation of the home statute “will
usually attract a reasonableness standard of review.”
• One expects that most administrative decisions will satisfy this criterion most of the time, thereby assuring an expansive scope for the default
position of deference.
• In Smith, the majority went on to state that the nature of the task (discretionary award of costs), and the intertwining of fact and law,
supported its conclusion that reasonableness is the operative standard and no countervailing correctness factors were present.
• In Mowat (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, the SCC carefully
steered a path enabling it to arrive at a reasonableness standard with respect to costs without disavowing the pre-Dunsmuir jurisprudence that subjected human rights
tribunals to correctness review.
• Mowat concerned the interpretation of s. 53(2)(c) of the Canadian Human Rights Act., a provision that authorizes a human rights
tribunal to order the offending party to “compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim
as a result of the discriminatory practice.”
• The question was whether “any expenses” included the complainant’s legal fees.

• If one relied on past jurisprudence about human rights tribunals’ expertise, one would be incline toward the standard of correctness. If one
focused more narrowly on the power of the tribunal to award costs, one might even characterize the issue as “jurisdictional” and thus subject to correctness.
• Yet, Dunsmuir’s recognition of the expertise of decision-makers in interpreting and applying their home statute pulls in the direction of
reasonableness.
• The Supreme Court acknowledges the dilemma, and resolved it by casting the issue of costs as neither jurisdictional nor a question of
central importance to the legal system and outside the tribunal’s expertise.
• In the end, the Supreme Court in Mowat decided that the Human Rights Tribunal’s inclusion of legal costs as “expenses” was unreasonable.

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR – PROPORTIONALITY (CONTEXT) & REASONABLENESS

• The Catalyst Paper reminds us of the tensions between

• the commitment to deference in a post Dunsmuir era, and
• judicial commitment to supervise admin decisions and uphold the rule of law

• Catalyst Paper involved a challenge to a municipal bylaw that imposed markedly higher property tax rates on
industry compared with residents.

• Catalyst Paper Corp. argued that the considerations informing the difference in rates were not limited to
objective criteria (such as consumption of municipal services), and that the bylaw was therefore unreasonable.
• A reasonableness standard was applied. McLachlin C.J. looked primarily to prior case law in which the
scope and limits of municipal bylaw-making powers had been elucidated. This was supplemented by more direct attention to the
statutory sources of the municipality’s powers.

SUBSTANTIVE REVIEW:
POST DUSNMUIR – PROPORTIONALITY (CONTEXT) & REASONABLENESS

Catalyst Paper may be regarded as both a step back and a step forward
for reasonableness analysis:
• It may be argued that reliance on case law along with independent analysis of the governing statute amounts
to an overly judge-centric approach to reasonableness, reflecting an inadequate commitment to deference.
• However, the cases drawn on in Catalyst Paper reinforce the point that municipal politicians enjoy significant
discretion when it comes to bylaw making: a discretion legitimately informed by “an array of social, economic, political and other
non-legal considerations.”
• The outcome of the case confirms the breadth of that discretion, in that the Court rejects the claim that the
municipality exceeded its authority.
• On the side of the step forward - Catalyst Paper may be said to bring together a commitment to identifying
contextual factors supportive of deference.
• This may be viewed as incorporating proportionality analysis into reasonableness review – elaborated later in
Dore.
• The possibility of salvaging deference while remaining alert to the limits of substantive legality (through
examining the case law and statute – a contextual analysis) is suggested in another recent judgment, Nor-Man.

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR – PROPORTIONALITY (CONTEXT) & REASONABLENESS
• Nor-Man Regional Helath Authority Inc. v. Manitoba Association of Health Care Professionals, 2011
SCC 59 involved a labour arbitrator’s “creative” application of the equitable doctrine of estoppel at the remedial stage of a
grievance.
• Again, the court prefaces its application of the reasonableness standard with a contextual analysis of
the ambit of the arbitrator’s discretionary powers.
• Its canvassing of the factors relevant to this determination is specifically attentive to the
accumulated expertise of “arbitrators and academics” regarding the legal principles and processes appropriate to the
resolution of labour relations disputes.
• The factors identified include “the objectives and purposes of [the applicable labour relations
statute], the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of [the]
grievance.”
• The question is whether the respect accorded in Nor-Man to context-saturated perspectives (specifically
to tribunal perspectives) on the values and the processes properly informing delegated decision making (that is, the
factors of mandatory relevance to these decisions) may be extended to other administrative settings.
• If so, what responsibility—and moreover, what resources—do tribunals have to amass and effectively
communicate those perspectives?

SUBSTANTIVE REVIEW:
POST DUSNMUIR – THE CHARTER - PROPORTIONALITY & REASONABLENESS

What about ADM action/decision in which the Charter is engaged?

• In the post Dunsmuir era we see context-sensitivity in the application of the reasonableness standard in Charter
related decision making.
• In Doré., the court discussed balancing Charter values against other legal values in the review of discretion.
• In her judgment, Abella J. indicated that the nature of the decision and importance of the affected interest inform
the expectations of reasonableness (here, proportionality).
• Dore deals with a decision of the Disciplinary Council of the Barreau to reprimand a lawyer for statements he made
in a letter to a judge.
• On applying the standard the Court determined that the decision was not proportionate in its weighing of the Charter-
protected value of freedom of expression against the competing statutory value of professional civility.
• On the way to this determination, Abella J. considered the part of the lawyer’s Code of Ethics that the council applied (“[t]he
conduct of an advocate must bear the stamp of objectivity, moderation and dignity”), along with the public values advanced by that rule, as elaborated in
academic and judicial commentary.
• On the other side, the Court briefly took note of the fact that the Charter-protected interest in freedom of expression is
engaged by the decision, while additionally citing sources of legal commentary concerning the public interest in ensuring that lawyers participate in critical
discourse about the workings of justice system.

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR – PROPORTIONALITY & REASONABLENESS - CHARTER

• The implication of Doré is that these competing considerations should be reflected in the Decision.
• Abella J. stated:
“Disciplinary bodies must therefore demonstrate that they have
given due regard to the importance of the expressive rights at issue,
both in light of an individual lawyer’s right to expression and the
public’s interest in open discussion.”
• Following this brief rehearsal of the council’s reasoning, the Court concluded that the decision to issue a
reprimand satisfied the criterion of proportionality and, thus, the standard of reasonableness.
• In general terms, the way that the reasonableness standard is applied in Doré brings together two
important trends in reasonableness review:
1. The courts will “stay close to the reasons” of administrative decision-makers and first make efforts to ascertain the
“perspective,” or range of acceptable options, within which the decision is expected to stay; and

2. the courts may not revisit the weight accorded to competing factors (in particular, legal values) on review—although so
far, this is restricted to adjudicative discretion implicating Charter values.

SUBSTANTIVE REVIEW:
POST DUSNMUIR – PROPORTIONALITY & REASONABLENESS

• At times, the subject matter of the decision may be used as an entry point to the Charter. Does that change
the standard of review analysis?
• Most recently, the SCC considered this issue in Divito v. Canada (Minister of Public Safety and Emergency
Preparedness), 2013
• Divito, a Canadian citizen, was extradited to the United States, where he pleaded guilty to serious drug offences
and was sentenced to seven and a half years in prison. A few months later, he applied to the Canadian government to let him serve his
American sentence in Canada under the International Transfer of Offenders Act (ITOA).
• Under s. 8 of the ITOA, the consent of both the foreign state and the Canadian government are required before
an offender can be returned to Canada.
• Divito’s request was approved by the United States, but was refused by the Canadian Minister of Public Safety
and Emergency Preparedness.
• The lower court (fed court) upheld the decision refusing Divito’s transfer to Canada which was affirmed by the
Federal Court of Appeal.
• Divito appealed to the SCC only on the issue of the constitutionality of the provisions of the ITOA, not the
reasonableness of the Minister’s decision.
• This refusal, Divito argued, was a violation of his right as a Canadian citizen to enter Canada. Divito claimed that
once a foreign jurisdiction consented to a transfer, he had an absolute right as a citizen to enter Canada.

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POST DUSNMUIR – PROPORTIONALITY & REASONABLENESS
• Appeal dismissed for the following reasons:
• Independent of the ITOA, there is no right to serve a foreign prison sentence in Canada. Although the ITOA contemplated a
mechanism by which a citizen could return to Canada in the limited context of continuing incarceration for the purpose of serving their foreign sentence, s.
6(1) of the Charter did not confer a right on Canadian citizens to serve their foreign sentences in Canada.
• This possibility did not thereby create a constitutionally protected right to leave a foreign prison and enter Canada whenever a
foreign jurisdiction consented to the transfer.
• Divito’s argument that the Minister had to consent to the transfer of a Canadian citizen once a foreign state provided its
consent called into constitutional question not the impugned provisions, but the way the discretion is exercised.
• This called for scrutiny of the reasonableness of the exercise of discretion, an issue Divito did not appeal to the Court.

• Section 1 is the appropriate forum for the balancing of competing socio-political objectives. While it is true that
international legal principles and Canada’s treaty obligations do not create an independent right to prisoner transfers, Justice Abella
admits that these are minimal standards above which Canada can choose to protect its citizens.
• Once the American authorities consented to Mr. Divito’s request, the only thing standing between him and returning
to Canada was the discretion of the Minister.
• It is hard to see how this is not a restriction of his rights, albeit a justifiable one.
• The court did not agree that the minster’s refusal was an entry point to the Charter. Rather, the court recognized that
we already have a well-tested doctrinal arena in which competing policy objectives can be reconciled.

SUBSTANTIVE REVIEW
OVERLAP WITH THE CHARTER – EVALUATING DECISIONS UNDER S. 1

• The relationship between administrative law and the Charter is sometimes uncertain, but important
because cases involving judicial review of ADM action that may affect Charter rights are common.
• There are significant areas of overlap—notably s. 7 of the Charter and the requirements of
procedural fairness
• The courts approach has been less than constant, in particular with respect to whether, when,
and how to evaluate administrative decisions under s. 1 of the Charter - the Oakes test - whether or not a law
justifiably infringes a right or freedom.
• The recent Doré v. Barreau du Québec decision from the Supreme Court changed the
methodological approach used to review discretionary decisions involving Charter interests and values.
• Doré overturned the majority approach previously endorsed in Multani v. Commission scolaire
Marguerite-Bourgeoys, [2006] by confirming that the orthodox approach used to review whether or not a law
justifiably infringes a right or freedom—the Oakes test— should not replace administrative law review for
discretionary decisions.

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 SUBSTANTIVE REVIEW
OVERLAP WITH THE CHARTER – EVALUATING DECISIONS UNDER S. 1

In Doré v. Barreau du Québec, the SCC stated that

the standard of review will be
• reasonableness with “proportionality” serving as the central criterion of
reasonableness.
• Deference will be shown and reasonableness will be recognized when the ADM
1. has asked itself how the particular Charter value will best be protected while recognizing statutory
objectives, and then
2. has properly balanced the severity of the interference in light of these statutory objectives.

• The primary way to show that proportionality analysis has been properly
undertaken is through the provision of adequate reasons.

SUBSTANTIVE REVIEW
OVERLAP WITH THE CHARTER – EVALUATING DECISIONS UNDER S. 1

• As with many Supreme Court decisions in administrative law attempting to

address difficult problems, the Doré decision still leaves much unresolved.
• To what extent does this new approach allow judicial reconsideration and re-weighing of
values as part of the “reasonableness” review?
• To what extent will the change in the onus of the burden of proof have an impact on how well
administrative law serves to uphold Charter values?
• with the reasonableness test in administrative law the burden lies with those seeking to
challenge the decision
• in Charter reviews under s. 1 it lies with those seeking to defend the impugned law or
decision

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 SUBSTANTIVE REVIEW
OVERLAP WITH THE CHARTER –GRANTING S. 24 REMEDIES
• Another significant development in the relationship between the Charter and administrative bodies
is the judicial finding that
administrative tribunal may have the jurisdiction to consider
Charter challenges to its enabling legislation and to award Charter
remedies under s. 24(1).
• This determination represents a major shift in the earlier approach, which allocated the power to
determine questions of law to courts, while leaving administrative bodies the power to interpret and apply their
enabling legislation.
• Remedies under Section 24(1) provide that anyone whose Charter rights have been infringed may
apply to a “court of competent jurisdiction” to obtain a remedy that is appropriate and just in the circumstances.”
• These changes are grounded in concerns for access to justice and recognition of the competence
and capacity of such tribunals as legal bodies to interpret legislation.

SUBSTANTIVE REVIEW
OVERLAP WITH THE CHARTER –GRANTING S. 24 REMEDIES
• In Conway, Abella J., writing for the Court, built on the rationale in Martin to develop a “new approach”
for determining when a board or tribunal can grant a specific remedy under s. 24(1) and relaxes the prior test for
determining whether a board or tribunal has jurisdiction to grant the relevant remedy.
• The first stage of the analysis, she said, is to determine whether the board is a “court of competent
jurisdiction” within the meaning of s. 24(1). “Does this particular tribunal have the jurisdiction to grant Charter remedies generally?”
• If the board is found to be a court of competent jurisdiction, then the inquiry moves to whether the board has
jurisdiction to grant the remedy sought.
• In Conway, She then had to determine whether the remedy of an absolute discharge was available to
Conway in light of the board’s mandate and function.
• Abella J. held that the board had jurisdiction to grant Charter remedies generally, but not the remedy of an
absolute discharge which lay beyond the board’s statutory authority.
• the Court denied Conway’s application for s. 24(1) remedies.
• Also, recall the discussion in Vancouver (City) v. Ward where the SCC granted monetary damages for
Charter breaches under s. 24(1)

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 SUBSTANTIVE REVIEW:
OVERLAP WITH THE CHARTER –
AUTHORITY TO QUESTION UNCONSTITUTIONAL ENABLING PROVISIONS
• The ability of administrative agencies to question unconstitutional enabling provisions not only provides an
economical and efficient resolution of a rights dispute (avoiding the need to go to court), but also conforms to the “institutional
dialogue” and “deference as respect” models.
• This perspective emerged clearly in the dissent written by McLachlin J. (as she then was) and L’Heureux-
Dubé J. in the case Cooper v. Canada (Human Rights Commission).
• This case concerned the fundamental question of whether or not human rights tribunals have the
authority to determine the constitutionality of provisions in their enabling statutes.
• The court wrote a resounding affirmation:
“The Charter is not some holy grail which only judicial initiates of the
superior courts may touch. The Charter belongs to the people. All law and
law-makers that touch the people must conform to it. Tribunals and
commissions charged with deciding legal issues are no exception. Many
more citizens have their rights determined by these tribunals than by the
courts. If the Charter is to be meaningful to ordinary people, then it must
find its expression in the decisions of these tribunals.”

SUBSTANTIVE REVIEW:
POST DUSNMUIR – CLARIFYING DEFERENCE

• Ever since the SCC, in Dunsmuir, developed a “more coherent and workable” framework fro judicial review of
admin decisions, lower courts have had difficulty applying the SCC’s standard of review analysis.
• Misapplication generally involves a lower court undertaking a correctness review where a reasonableness
standard is required.
• To remedy this, the SCC released a series of decisions clarifying the deference to be afforded to ADMs.
• In its most recent decision, Mclean v British Columbia (Securities Commission) 2013, the SCC clarified the
presumption of deference given to tribunals when they are interpreting their home or a closely related statute.
• But in Agraira v Canada (Public Safety and Emergency Preparedness), also a 2013 decision, the SCC
created some confusion.
• Lets examine both decisions.

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR – THE REASONABLENESS STANDARD AND DEFERNCE
• Agraira v Canada (Public Safety and Emergency Preparedness), a 2013 decision by the SCC created some
confusion.
• The SCC had to determine whether the Minister of Public Safety and Emergency Preparedness (Minister)’s decision
to deny ministerial relief to an alleged terrorist should be remitted to the admin body.
• In trying to make sense of the Minister’s decision, Justice LeBel did not explain his own rationale and made the
current state of the law of judicial review ambiguous.
• Agraira, a citizen of Libya, had been residing in Canada continuously since 1997, despite having been found to
be inadmissible on security grounds in 2002. The finding of inadmissibility was based on his membership in the Libyan National
Salvation Front (LNSF), which was a terrorist organization according to Citizenship and Immigration Canada (CIC).
• In 2002, Agraira applied for ministerial relief from the determination of inadmissibility, but his application was
denied. The Minister concluded that it was not in the national interest to admit individuals who have had sustained contact with known
terrorist and/or terrorist-connected organizations.
• The Federal Court of Appeal concluded that the Minister’s decision was reasonable.
• Agraira contended that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the
IRPA by equating it with national security and public safety. He added that the Minister’s decision failed to meet his legitimate
expectations that certain procedures would be followed and certain factors would be taken into account.

SUBSTANTIVE REVIEW:
POST DUSNMUIR – THE REASONABLENESS STANDARD AND DEFERNCE
• SCC dismissed Agraira Reasonableness:
• Since a decision by the Minister under s. 34(2) was discretionary, the deferential standard of reasonableness applied.
• Also, because the decision involved the interpretation of the term “national interest” in s. 34(2), it could be said that it
involved a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity”.
This also confirmed that reasonableness was the applicable standard.

Decision was reasonable:

• The court found that the Minister’s reasons were justifiable, transparent and intelligible. Although brief, they made clear
the process he had followed in ruling on Agraira’s application. He reviewed and considered all the material and evidence before him.
• Furthermore, the Minister’s decision fell within a range of possible acceptable outcomes which were defensible in light
of the facts and the law.

Procedural fairness:
• The Court also addressed the role of the legitimate expectations doctrine in the context of the duty of procedural
fairness.
• LeBel J. held that because the Minister followed a comprehensive procedural process set out in publicly available
guidelines for dealing with the appellant's application, the appellant's legitimate expectations and right to procedural fairness were fulfilled, even
though the guidelines were not published by the Minister's own department.

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR – MCLEAN – CLARIFYING DEFERENCE

Mclean v British Columbia

• McLean entered into a settlement agreement with the Ontario Securities Commission (“OSC”) in September, 2008. The
agreement related to misconduct that occurred during her time as a director of a mining corporation.
• In January 2010, McLean received notice from the BC Securities Commission that it would be seeking an order pursuant to
s.161(6)(d) of the Securities Act (BC), which empowers the Commission to bring proceedings in the public interest against individuals who have
agreed with another jurisdiction’s securities regulator, by way of a settlement agreement, to be subject to regulatory action.
• The proceedings under s.161 are subject to a six-year limitation period “after the date of the events that give rise to the
proceedings”. Upon receiving notice from the Commission, McLean argued that this limitation period had expired, as it had been almost nine
years since the last event connected to the settlement agreement.
• Without giving reasons, the Commission issued an order against McLean and by implication, held that the event that gave
rise to the proceeding had been the OSC agreement itself.
• The Court of Appeal concluded that the interpretation of a limitation period provision in a statute by an administrative
tribunal engaged the standard of correctness. Applying that standard, it nonetheless found in favour of the Commission.
• McLean appealed.

SUBSTANTIVE REVIEW:
POST DUSNMUIR – MCLEAN – CLARIFYING DEFERENCE
• SCC’s Decision in Mclean:
• The SCC reversed the decision, holding that the appropriate standard of review was reasonableness, not correctness.
• However, the court was unable to conclude that the Commission’s interpretation was rendered unreasonable in light of the
purpose of limitation periods.
• Expanding on Alberta Teachers, the SCC held that when interpreting a home statute, the tribunal “holds the
interpretive upper hand”.
• Attaching this principle to the facts of the Mclean, the Court found that limitation periods as a conceptual matter are of
central importance to the legal system but that the specific limitation period that applied to s.161 of the Securities Act was not.
• This was due to the finding that the Commission was in a better position to interpret the term “the events” in the
limitation clause within the context of the Act.
• The Commission’s interpretation struck a reasonable balance between facilitation of interprovincial cooperation and the
underlying purposes of limitation periods.

• Despite the SCC’s criticism of the use of the general question of law exception by lower courts, McLean offers little concrete
guidance for future applications of judicial review.
• For example, the Court states that the correctness standard is reserved to “safeguard a basic consistency in the
fundamental legal order”.
• Yet, prior to McLean, one could plausibly argue that various tribunals and commissions interpreting the same statutory
language in different ways would qualify as a “basic [in]consistency”.
• It seems likely that misapplication by lower courts will continue.

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 SUBSTANTIVE REVIEW:
POST DUSNMUIR –CLARIFYING DEFERENCE & EXCEPTIONS
• In Dunsmuir, the SCC held that “deference will usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, with which it has particular familiarity”.
• The Court clarified this position in Alberta Teachers (2011) by stating the interpretation of home and closely connected
statutes “should be presumed to be a question of statutory interpretation subject to deference on judicial review”
• While this presumption is subject to a few exceptions (including questions of jurisdiction and general questions of law of
central importance of the legal system) McLean holds that these exceptions are exceedingly rare.
• Post-Dunsmuir, it has become fashionable for counsel to argue that the question before an administrative decision maker
falls into one of the few recognized exceptional categories.
• One wave of cases focuses on whether the question raised a “true” question of vires or jurisdiction; see Alberta
Teachers… In that case, the Court expressed serious reservations about whether such questions can be distinguished as a separate category of
questions of law, but ultimately left the door open to the possibility.
• A second wave – the one which the appellant now rides – focuses on “general questions of law that are both of central
importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC; see also Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care
Professionals, 2011 SCC [and] Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. 2013
• In each of these cases, this Court unanimously found that the question presented did not fall into this exceptional
category.

SUBSTANTIVE REVIEW:
POST DUNSMUIR - PATENT UNREASONABLENESS
• Sometime after Southam and before Dunsmuir, a few legislators switched tactics and decided instead to direct the courts on the
legislature’s intended standard of review.
• They did this by explicitly stating in the enabling statute whether a reviewing court should apply
• correctness
• unreasonableness simpliciter, or
• patent unreasonableness

HIGH-------------------- DEFERENCE --------------------LOW

PATENT UNREASONABLENESS  REASONABLENESS SIMPLICITER  CORRECTNESS

• patently unreasonable or the patent unreasonableness test was a standard of review used by a court when performing
Judicial review of administrative decisions.
• It was the highest of three standards of review: correctness, unreasonableness, and patent unreasonableness.
• Although the term "patent unreasonableness" lacked a precise definition in the common law, it was somewhere above
unreasonableness, and consequently it was relatively difficult to show that a decision is patently unreasonable.
• A simple example of a patently unreasonable decision may be one that does not accord at all with the facts or law before
it, or one that completely misstates a legal test.
• Practically, it meant that a decision had to be so egregious that it was patently unreasonable.

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 SUBSTANTIVE REVIEW:
POST DUNSMUIR - PATENT UNREASONABLENESS
• This standard of patent unreasonableness was found to be dissatisfactory as it allowed certain
decisions which were unreasonable but not patently unreasonable to be upheld, giving rise to situations where
certain people were told to accept an irrational decision of an administrative body.
• And then Dunsmuir came along, and out went patent unreasonableness.

HIGH-------DUNSMUIR DEFERENCE--------LOW
REASONABLENESS CORRECTNESS
• In Dunsmuir, the Supreme Court abolished the patent unreasonableness standard in favour of
retaining the two standards of correctness and reasonableness.
• This does not necessarily mean that cases decided on the "patently unreasonable" standard
cease to be of any use.
• Rather, in practice they are often referred to as examples falling below the threshold of
"reasonableness", and remain helpful in that regard.

SUBSTANTIVE REVIEW:
POST DUNSMUIR - PATENT UNREASONABLENESS

Lets look at some examples of enabling statutes and the standard:

• The B.C. Administrative Tribunals Act (ATA) itemizes grounds of judicial review applicable to the
tribunals subject to the ATA and matches each ground with a standard of review.
• In the case of judicial review of discretion, the ATA also lists factors relevant to determining
whether discretion was exercised in a patently unreasonable way.

• In Ontario, the Human Rights Code contains a privative clause stipulating that
“a decision of the [Human Rights] Tribunal is final and not subject
to appeal and shall not be altered or set aside in an application for
judicial review or in any other proceeding unless the decision is
patently unreasonable.”

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POST DUNSMUIR - PATENT UNREASONABLENESS

• In Khosa, the SCC acknowledges that "a legislature has the power to specify a standard of review … if
it manifests a clear intention to do so.“
• The SCC further notes that most jurisdictions in Canada enacted legislation like the Federal
Courts Act that identify grounds for review but not the standard of review. Thus, for judicial reviews commenced
under such legislation, it follows that the two-standard Dunsmuir approach applies.
• But Khosa also acknowledges the predicament for parties dealing with statutes that incorporate
the now obsolete common-law standard of “patent unreasonableness.”
• Yet even where the intention appears clear — such as in the B.C. ATA, which specifies the
standard of patent unreasonableness, the SCC suggests that Dunsmuir ought to guide a reviewing court’s decision.
(Khosa, at paras 19 and 50.)

SUBSTANTIVE REVIEW:
POST DUNSMUIR - PATENT UNREASONABLENESS

• In Khosa, for example, considering the B.C. ATA, the SCC states:
"Despite Dunsmuir, ‘patent unreasonableness’ will live on in British
Columbia, but the content of the expression, and the precise
degree of deference it commands in the diverse circumstances of
a large provincial administration, will necessarily continue to be
calibrated according to general principles of administrative law."
(Khosa, at para. 19, emphasis added.)
• The SCC further states that even where there is a clear intention to specify a standard of review,
where the legislative language permits, the courts:
(a) will not interpret grounds of review as standards of review,
(b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in
a particular situation, and
(c) will presume the existence of a discretion to grant or withhold relief based on the
Dunsmuir teaching of restraint in judicial intervention in administrative matters…" (Khosa, at para. 51, emphasis
added.)

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POST DUNSMUIR - PATENT UNREASONABLENESS

• It is difficult to decipher the meaning that is to be given to the two Khosa passages just cited.
• The SCC’s statement that the standard of patent unreasonableness "lives on" seems inconsistent
with its statement that the "precise degree of deference … will be calibrated in accordance with general principles of
administrative law."
• These statements appear to re-import varying degrees of reasonableness — the very thing Dunsmuir
abolished.
• Regardless of this potential uncertainty for those few provincial statutes that expressly reference
the "patent unreasonable" standard, the decision in Khosa is significant to the wide range of decisions reviewed
under the Federal Courts Act.
• Moreover, the decision in Khosa is a clear endorsement in favour of granting greater deference to
administrative decision-makers.

SUBSTANTIVE REVIEW:
POST DUNSMUIR - PATENT UNREASONABLENESS
How have courts interpreted statutory standards of “patent unreasonableness” post- Dunsmuir?
• Post Dunsmuir, the highest level of deference available under general principles of administrative law is reasonableness.
• Therefore, according the highest degree of deference to the tribunal’s determination of liability and remedy post-Dunsmuir means respecting
those “questions within the specialized expertise of the Tribunal” unless “they are not rationally supported—in other words, they are unreasonable.”
• Lets look first at British Columbia (Workers Compensation Board) v. Figliola
• Similar to provincial human rights statutes in Alberta and Ontario, B.C.’s Human Rights Code grants the B.C. Human Rights Tribunal
the power to dismiss complaints that have “been appropriately dealt with in another proceeding” (section 27(1)(f)).
• In Figliola, the complainants all suffered from chronic pain. B.C.’s Workers’ Compensation Board granted them a fixed compensation
award pursuant to the Board’s Chronic Pain Policy. The complainants appealed the decision, arguing that fixed compensation awards under the Policy were
discriminatory pursuant to B.C.’s Human Rights Code. The Review Officer found that he had the jurisdiction to apply the Code, and found that the Policy was not
discriminatory.
• The complainants could have judicially reviewed the Review Officer’s decision. Instead, they applied to the B.C. Human Rights
Tribunal for an order that the Chronic Pain Policy breached the Human Rights Code.
• The Workers’ Compensation Board moved for an order dismissing the complainants’ applications as having been appropriately dealt with. The
Tribunal dismissed the Board’s application.
• On judicial review, the Tribunal’s decision was set aside. The Court of Appeal restored the Tribunal’s decision.
• The Supreme Court of Canada (SCC) (per Justices McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein
and Cromwell), unanimously found that the HRT’s decision to assert its jurisdiction over the complaint was patently unreasonable because it was based on matters
outside the scope of its mandate.
• Thus, the decision was set aside and the complaints dismissed.

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POST DUNSMUIR - PATENT UNREASONABLENESS
How have courts interpreted statutory standards of “patent unreasonableness”
post-Dunsmuir?
• In Figliola, the SCC considered whether the B.C. Human Rights Tribunal exercised its discretion in a patently
unreasonable fashion when it decided to adjudicate a Human Rights Code complaint that had already been rejected by a review officer of the
B.C. Workers’ Compensation Board.
• In deciding whether a complaint has been “appropriately dealt with”, the Supreme Court directed the Tribunal to consider
the following legal test:
• Whether there was concurrent jurisdiction to decide the issues,
• Whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal,
and
• Whether there was an opportunity for the complainants to know the case to be met and have the chance to meet it,
regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.
• Tribunals are entitled to assume that, subject to appeal or judicial review, their decision is final and will be treated as such
by other administrative bodies.
• In this case, the Supreme Court found that the complainants were trying to “forum shop” or “relitigate” in a different forum
“in search of a more favourable result.”
• The Tribunal was complicit in this collateral appeal by failing to dismiss the complaints and its decision was patently
unreasonable.
• Note that the SCC was split five to four on the issue of what was the proper legal test to be used to determine
whether the complaint had been appropriately dealt with.

SUBSTANTIVE REVIEW:
POST DUNSMUIR - PATENT UNREASONABLENESS
How have courts interpreted statutory standards of “patent unreasonableness”
post-Dunsmuir?
Shaw v. Phipps 2012 ONCA 155
• involved a police constable, Michael Shaw, who stopped a black letter carrier in an affluent Toronto neighbourhood.
• Shaw was patrolling the area due to reports of break and enters in the neighbourhood by white and eastern European
males.
• The officer testified he saw an individual engaged in unusual activity at the end of the block. Importantly, Shaw testified he
couldn’t discern the gender or skin colour of the individual when he first noted the unusual activity.
• Shaw, being familiar with the area, knew its regular mail carrier and saw the individual knock on a door and speak with the person
who answered without delivering any mail.
• He also observed the individual going to homes without cars in the driveway. Shaw became suspicious. Shaw then
approached the individual and asked to see his identification.
• Despite corroborating evidence from an assistant officer who testified about Shaw’s suspicions arising before he knew the
skin colour of the individual, the Ontario Human Rights Tribunal rejected his explanation and concluded he had engaged in discriminatory
conduct by stopping the carrier.
• Appeals by the officer to the Ontario Divisional Court and the Ontario Court of Appeal were unsuccessful
• Lets look at how the court dealt with the standard of review.

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How have courts interpreted statutory standards of

“patent unreasonableness” post- Dunsmuir?
• In Shaw v. Phipps, the Ontario Divisional Court held that “patently unreasonable” in the Ontario
Human Rights Code should be interpreted against the legislative intent at the time of enactment.
• According to the Divisional Court in Phipps, the legislated patent unreasonableness standard amounts to a signal
from the Legislature that the Human Rights Tribunal is to be afforded the highest degree of deference available in administrative law.
• In 2006, that standard was patent unreasonableness.
• This does not mean, however, that a decision of the Tribunal will be upheld if it is irrational, but not “clearly irrational,”
as the Supreme Court has concluded that the distinction between reasonableness and patent unreasonableness, as applied by judges, is
illusory.
• Moreover, it is well established that “it would be inconsistent with the rule of law to uphold an irrational decision just
because the irrationality of the decision was not clear enough.”
• In Phipps, the Divisional court explained: “In other words, decisions of the Tribunal on liability and on remedy must be
respected unless they are not rationally supported
– in other words, they are unreasonable.”
• The Ontario Court of Appeal upheld the Divisional Court’s decision.

SEGMENTATION OF THE STANDARD OF REVIEW

• Where a judicial review application raises several discrete issues, reviewing courts have
sometimes calibrated the standard of review separately for each issue.
• The Court may, in some cases, disaggregate one aspect of the overall decision and subject that
discrete question to a separate standard of review than that applied to the rest of the decision as a whole
• Segmentation arises whenever one link in a decision chain attracts a different standard of review
than other links in the chain.
• Usually (but not always) involves a question of law.
• Dunsmuir offers relief from the complexity of this process by expanding the range of decisional
steps to which deference will presumptively apply, but… the problem remains where one or more elements of the
decision attracts a standard of review of correctness.

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 SEGMENTATION OF THE STANDARD OF REVIEW
• Consider Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3.
• The s. 7 constitutional issue was whether the minister could exercise his or her discretion to deport a
non-citizen to a country where that person faced a substantial risk of torture.
• A provision of the Immigration Act (now IRPA) grants the minister discretion to deport a non-citizen
who is deemed to be a threat to national security.
• A deportation decision in this context consisted of various subquestions: 1. What is the meaning of
national security? 2. Is the non-citizen a threat to national security? 3. What does torture mean? 4. Does the non-citizen face a
substantial risk of torture? 5. Does deportation of a non-citizen to torture violate s. 7 of the Charter?
• The Court does not articulate a standard of review for questions 1 and 3, but emphasizes that
questions 2 and 4 attract deference, while question 5 is explicitly subject to correctness.
• It confirms that segmentation of the standard is available.

SUBSTANTIVE REVIEW
OVERLAP WITH PROCEDURAL FAIRNESS
• Judicial review of substantive error can and does occasionally overlap with that other main branch of administrative law, judicial review of
procedural fairness.
• Recall that one element of procedural fairness is the duty to give reasons. But a failure to give reasons, or a failure to give reasons that
sufficiently explain the decision, can also lead to a finding of unreasonableness.
• In Del Vecchio v. Canada, the minister’s decision appeared arbitrary to the Court (and to Mr. Del Vecchio) because the minister had failed to
explain why Mr. Del Vecchio was being treated differently than his accomplices.
• The minister had provided some reasons, meaning that procedural fairness was met, but those reasons were inadequate, meaning that
the decision was unreasonable.
• Had the minister paid better attention to procedural fairness—the duty to give reasons—his decision may not have appeared arbitrary
and may, in fact, have been reasonable.

• In Dunsmuir, the majority says nothing about the standard of review for questions of procedural fairness, but Binnie J. plugs that hole by
confirming that a standard of correctness will continue to apply: “On such matters … , the courts have the final say.
• The need for such procedural safeguards is obvious. Nobody should have his or her rights, interests or privileges adversely dealt with by an
unjust process.”
• Another way of stating this principle is to deny that standard of review is apposite to questions of procedural fairness (errors of
discretion/fettering of discretion – a wrong choice/outcome overlap in substantive review issues).
• The only metric is whether the proceedings were conducted fairly. Gismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419
(QL) (Ont. Div. Ct.).
• For your exam, you do not do a standard of review analysis for procedural entitlements – you apply the rules discussed previously when
challenging a decision based on procedural defects.

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 SUBSTANTIVE REVIEW:
APPLYING THE STANDARD TO THE DECISION

• You’re challenging an ADM’s decision

• There is no reason to deny you challenge
• The standard has been determined by the court

• What’s next?

SUBSTANTIVE REVIEW
APPLYING THE STANDARD TO THE DECISION

• Having determined the standard of review—the level of intensity with which the court will review a
decision (correctness or reasonableness)— the court then applies it to the decision in question (a decision taken by a
minister, a municipality, a board, or a tribunal).

• Even if a court has determined that the standard of review must be one that is unforgiving and shows
no deference (correctness), in reviewing the decision it may nonetheless determine that the standard has been met.
• In other words, the decision reached by the board or tribunal is the same as that which would
have been reached by the court and thus will not be overturned.

• Similarly, if the standard of review is forgiving and deferential

(reasonableness), then it does not necessarily mean the decision will
stand.
• it may be that the court finds that no reasonable decision-maker could have reached that
conclusion because the conclusion did not fall within a range of reasonable alternative decisions.

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 SUBSTANTIVE REVIEW
APPLYING THE STANDARD TO THE DECISION

For example:
• In the case of Del Vecchio v. Canada, the Federal Court found with respect to decisions on
prisoner transfers from the United States to Canada that the minister of public safety had a high degree of discretion
and was owed deference—the court should apply a standard of reasonableness to test the minister’s decision.

• However, the minister’s decision was outside the range of reasonable alternatives because of
arbitrarily refusing to allow Mr. Del Vecchio to transfer into a Canadian prison while letting Mr. Del Vecchio’s criminal
accomplices transfer.

• The minister’s decision was thus unreasonable, and the court set aside the minister’s original
order and ordered him to make a new, reasonable decision.

SUBSTANTIVE REVIEW
APPLYING THE STANDARD TO THE REASONS

• The court also looks at the REASONS for the decision

• As the Supreme Court remarked in Lake v. Canada (Minister of Justice): “The purpose of providing
reasons is twofold:
1. to allow the individual to understand why the decision was made (communicate that the decision-
maker has genuinely heard and considered the evidence and arguments presented); and
2. to allow the reviewing court to assess the validity of the decision.”

• Therefore, the duty to give reasons can be a component of procedural fairness (Baker) and an
issue of substance.
• It is clear that the absence of reasons may constitute a breach of procedural fairness and, if so, will
be remedied by the imposition of the duty to give reasons as a common-law requirement - procedural fairness.

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 SUBSTANTIVE REVIEW
APPLYING THE STANDARD TO THE DECISION & REASONS
So…how do you measure the substantive reasonableness of a
decision and its reasons?
2 step inquiry:
(1) Reasons
• do they justify the decision by using transparency, intelligibility, and justifiability of the process of
reasoning/decision making
• that all audiences—counsel, affected persons and especially the losing party, reviewing courts, other
agencies, and the general public—can understand, and
(2) Outcome
• do they illustrate that the the outcome is also reasonable when, as is often the case in administrative
decision making, more than one reasonable result is possible.
• This means that reasons support the principle of deference because the reviewing court ought to
defer to the decision-maker who provides legally valid reasons that support a reasonable outcome even if the court disagrees
with the outcome.

SUBSTANTIVE REVIEW
APPLYING THE STANDARD TO THE DECISION
But how should a court treat inadequate or unreasonable reasons?
• Canadian case law, for some time, remained uncertain whether inadequate reasons were a procedural deficiency to be
reviewed on the fairness standard or part of substantive review and reviewed on a reasonableness standard.
• However, Dunsmuir proposed that reasons and deference possess a strong interrelationship and that Judicial deference to
a decision is appropriate where the decision demonstrates justification, transparency, and intelligibility within the decision-making
process, and where the outcome falls within a range of possible, acceptable outcomes defensible with respect to the facts and law.
• In assessing the justification, transparency, and intelligibility of the reasoning process, there is obvious potential for overlap
between assessing the formal adequacy of reasons as a matter of procedural fairness and evaluating the substantive content of reasons as a
matter of merits review.
• Framing the ground-of-reasons review in terms of procedure rather than substance potentially invites a greater degree of judicial
intervention via the correctness standard.
• The more a court demands of reasons in order to satisfy the procedural duty of fairness, the greater the potential for
expansive and intrusive judicial review.
• The Supreme Court of Canada abruptly terminated the debate between the form of reasons and the content of reasons in
Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)
• Abella J., writing for the Court, stated: “I do not see Dunsmuir as standing for the proposition that the ‘adequacy’ of
reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses— one for the
reasons and a separate one for the result.”

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 SUBSTANTIVE REVIEW:
APPLYING THE STANDARD TO THE DECISION

What do inadequate reasons look like and where found imperfect, what would
judicial deference look like?
• Important lower-court judgments that have fleshed out the analytic framework for determining adequate reasons
include: Justice Evans’s dissent in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56; Vancouver International
Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158]; Clifford v. Ontario Municipal Employees Retirement System, 2009
ONCA 670; and Spinks v. Alberta (Law Enforcement Review Board), 2011 ABCA 162.
• The test is functional and purposeful. The reasons must address the substance of the live issues, key arguments,
contradictory evidence, and non- obvious inferences. Bare or opaque conclusions with no supporting information or not supported by
principles will be found unsatisfactory. Inconsistencies and irrelevant considerations, or when relevant considerations or obvious topics
are omitted, will be considered serious flaws.
• The decision-maker cannot write minimal reasons that effectively provide immunization from review and
accountability.
• And, finally, the decision-maker cannot exhibit an attitude of “Trust us, we got it right.” Vancouver International
Airport Authority (VIAA)
• In the absence of reasons that are adequate to allow an evaluation on a substantive basis, the court can refer the
case back to the decision maker for explanation (McDonald v. Mineral Springs Hotel (2008) ABCA)

SUBSTANTIVE REVIEW:
APPLYING THE STANDARD TO THE DECISION- REASONS

• Practically, the reasons themselves contain the evidence of the reasonableness (or correctness, as the case may
be) of those exercises of statutory authority
• because they disclose the findings of fact, interpretations of law, applications of law to fact, and exercises of discretion
that are the substance of the decision.
• A ‘reasonable’ decision would consider appropriate factors and weigh these factor based on the decision maker’s
assessment of the evidence before it.
• For example:
• In Smith v. Alliance Pipeline ltd., (2011), the Supremes looked at the standard of review and then assessed the
decision by applying the 2 step inquiry.
• Smith was an expropriation issue decided by an arbitration panel under the National Energy Board Act. The
board awarded substantial indemnity costs to an individual whose land has been expropriated (there was a court proceeding at the same
time).
• Fish J. held that the standard of review of an admin decision on costs is reasonableness because awarding
costs is usually within the enabling statute, fact sensitive and discretionary (the decision maker is interpreting its “home statute”).
• The decision itself was also found to have been reasonable and was given broad and liberal interpretation.
• The court found that awarding costs was within the remedial purposes of the Act

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 CHALLENGING A DECISION
WHAT REMEDIES ARE AVAILABLE?
Presuming you passed the threshold for judicial review – what remedies are
available to a party challenging an administrative action/decision?

Remedies on Statutory Appeal

• As per the scope of the appeal - dictated by the enabling statute

Remedies on Judicial review

• Prerogative Writs
• Statutory Reform

Private Law Remedies

• The special tort of misfeasance in (or abuse of) public office
• Private law Overlap with Judicial review
• Money/damages
• Monetary damages for Charter breaches

 Checklist

CHALLENGING A DECISION
REMEDIES ON STATUTORY APPEAL

• Courts have no inherent appellate jurisdiction over administrative tribunals.

• A right to appeal must be provided for in a tribunal’s enabling statute.
• Usually, a tribunal’s enabling statute will also set out the court to which tribunal orders may be
appealed.
• See previous discussion of statutory appeals.

• If a statute does not so provide, a dissatisfied party will have to access the courts by way of
judicial review.

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW

The remedies available on judicial review have their roots in the ancient
prerogative writs.

• Certiorari (to quash or set aside a decision),

• Prohibition (to order a tribunal not to proceed),
• Mandamus (to order the performance of a public duty),
• Declaration
• Habeas corpus (to order the release of the unlawfully imprisoned) and Quo warranto
(“by what warrant?” or “by what authority?”)

CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW
• Over time, each of the prerogative writs above came to be characterized by technical complexity and arcane rules.
Potentially meritorious applications were dismissed because the applicant had petitioned for the wrong writ, or because his or her claim
was barred by some technical limitation.
• For example, although court decisions later re-expanded the writ’s scope, a number of cases in Canada in the 1960s and
1970s held that certiorari and prohibition were only available to address “judicial” or “quasi-judicial” final decisions that affected the rights of citizens.
• In many provinces they were modified by statute to redress problems arising from the writs’ extreme technicality and
unjustified narrowness.
• However, it is still necessary to understand the ancient writs to understand the scope and range of remedies
available through judicial review. For example, neither the old writs nor the reform statutes, which are based on the old writs,
permit a court on judicial review to substitute its views on the substance of a matter for the tribunal’s views.
• A party contemplating judicial review should also be aware that, unlike an appeal, an application for judicial
review usually does not automatically stay the enforcement of the underlying tribunal order (although the tribunal or the court or
both may have the power to stay the tribunal’s order on application).
• The legislative decision to make stays automatic for many appeals but not for judicial review applications is
consistent with the “last resort” nature of judicial review.
• Because judicial review remains a fundamentally discretionary power, the bases on which courts have refused to
grant a remedy are also important (was already discussed)

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW
Certiorari (to quash or set aside a decision):
• Certiorari is the most commonly used prerogative remedy, both historically and today.
• Certiorari (“cause to be certified”) is a special proceeding by which a superior court requires some
inferior tribunal, board, or judicial officer to provide it with the record of its proceedings for review for excess of
jurisdiction.
• It was the established method by which the Court of King’s Bench in England, from earliest times,
checked the jurisdiction of inferior courts and maintained the supremacy of the royal courts.
• A successful certiorari application results in the “quashing” (effectively, the invalidating) of a
tribunal’s order or decision.
• It is an ex post facto remedy.
• Note, however, that generally the court cannot substitute its decision for the decision of a tribunal
that the court finds had erred, because the court has not been granted the statutory decision-making authority and
does not have the expertise that the tribunal has.

CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW

Prohibition (to order a tribunal not to proceed):

• The related writ of prohibition is another special proceeding, issued by an appellate court to
prevent a lower court from exceeding its jurisdiction, or to prevent a non-judicial officer or entity from exercising a
power.
• Prohibition is a kind of common-law injunction to prevent an unlawful assumption of jurisdiction.
• Unlike certiorari, which provides relief after a decision is made, prohibition is used to obtain relief
pre-emptively.
• Prohibition stops the proceedings of any tribunal, board, or person exercising judicial functions in
a manner or by means not within its jurisdiction or discretion.

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW
Mandamus (to order the performance of a public duty):
• Mandamus (literally, “we command”) is a writ issued by a superior court to compel a lower court or a
government agency to perform a duty it is mandated to perform.
• In practice, it is often combined with an application for certiorari. Certiorari would be used to quash a
decision—for example, for a lack of procedural fairness—while mandamus would be used to force the tribunal to
reconsider the matter in a procedurally fair manner.
• A variation on mandamus gives the court the ability to send a matter back to a tribunal for
reconsideration with directions. Superior courts have the inherent power to order reconsideration with directions, and
several provincial statutes and rules of court, as well as the Federal Courts Act, also grant this power.
• If the court issues directions, it must clearly state what the original panel is to do or what it must
refrain from doing. These directions may only protect against unfair procedures or excess of power and cannot tell the
tribunal how it must decide.
• The general rule is that mandamus cannot be sought to compel the exercise of discretion in a
particular way, although exercises of discretion must always conform to the Charter.

CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW
Declaration:
• A declaration is a judgment of a court that determines and states the legal position of the parties, or the law that
applies to them.
• There are two kinds of declarations:
• the public law variety, - used to declare some government action ultra vires, and
• the private law variety - used to clarify the law or declare a party’s rights under statute.
• The public law variety is the main concern of administrative law.
• Declarations are not enforceable, and they cannot require anyone to take or refrain from taking any action.
• Historically, this made declarations useful in actions against the Crown itself because the traditional common-law
position was that relief in the nature of mandamus was not available against the Crown. These prohibitions on remedies against the
Crown itself were substantially, though not completely, relaxed over the course of the 20th century.
• The non-coercive nature of the remedy has not often proven to be a problem, because court declarations against
government bodies in particular tend to be respected.
• Where a declaration does not produce a government response, as happened in the Khadr case, the declaration
may look like a distinctly second-rate remedy relative to mandamus.

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW
Declaration and the Khadr case:
• In 2008 the Supreme Court of Canada determined that Omar Khadr had been deprived of his s. 7
Charter rights by Canadian officials operating at the Guantanamo Bay detention facility, who shared transcripts of their
interviews of Mr. Khadr with U.S. authorities.
• The Court ordered that the Canadian authorities produce those transcripts to Mr. Khadr, which they did,
but the prime minister refused requests to seek his repatriation from the United States to Canada.
• In its 2010 decision, the Supreme Court of Canada held that, notwithstanding the violation of Mr.
Khadr’s s. 7 Charter rights, it would not order the Canadian government to request his repatriation.
• In light of the Crown prerogative over foreign affairs, the Court concluded that the appropriate remedy
was a declaration that Canada had infringed Mr. Khadr’s s. 7 rights, leaving it to the government to decide how best to
respond. The government did not seek Mr. Khadr’s repatriation.
• At least where the Crown prerogative over foreign affairs is concerned, an aggrieved party may find
himself or herself having a right without a remedy—or, more accurately, having a right for which a meaningful remedy
exists only in the political, and not the legal, arena.

CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW

Habeas corpus (to order the release of the unlawfully imprisoned):

• Less common these days are the writs of habeas corpus and quo warranto.
• Habeas corpus (literally, “produce the body”) is a writ employed to bring a person before a court, most
frequently to ensure that the person’s imprisonment or detention is not illegal.
• Like certiorari, habeas corpus continues to live an active life in the United States, where it is the
primary mechanism for challenging state death penalty sentences in federal court.
• In Canada, habeas corpus applications are rare. Most are brought by prisoners detained in correctional
institutions and by police, immigration, child welfare, and mental health detainees.
• Quo warranto (“by what warrant?” or “by what authority?”) is a writ used to inquire into what authority
existed to justify acts by or powers claimed by a public office. It is rarely used today, and some provinces have abolished it
by statute.
• Quo warranto is still used in Quebec and New Brunswick to challenge the authority of municipal
councillors on the basis of a prohibited conflict of interest.

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW – STATUTORY REFORM
Statutory Reform:
• As the case law became more arcane and the practical injustices more obvious, policy reasons for maintaining the
distinction between the various writs eroded. The result, in many provinces and at the Federal Court was statutory reform.
• Some provinces enacted statutes governing judicial review or statutory/civil procedure, while others used their rules
of court to enact changes (Only Yukon Territory seems to have left the common law untouched).
• The details vary from one statutory scheme to another, but key statutes that may apply are:
• the Federal Courts Act,
• the Ontario and B.C. Judicial Review Procedure Acts (JRPAs),
• the Ontario Statutory Powers Procedure Act,
• the B.C. Administrative Tribunals Act,
• the P.E.I. Judicial Review Act,
• Quebec’s Code of Civil Procedure, and
• the rules of court in other provinces and territories.
• These important statutes have sought to clarify procedure surrounding judicial review. Some have also sought to
change the substantive shape of judicial review itself.
• Therefore, parties considering challenging a tribunal order must be aware of the relevant statutes’ provisions, in
addition to the provisions of the tribunal’s own enabling statutes.

CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW – STATUTORY REFORM

Statutory reforms commonly provide for the following:

1. Simplified application procedures

2. Simplified remedies
3. Greater clarity as to who may be parties to a hearing
4. A right of appeal
5. Judicial review mechanisms to challenge interlocutory orders and to
resolve interim issues

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW – STATUTORY REFORM

1. Simplified application procedures

• A statute may state that applications for orders “in the nature of” mandamus, prohibition, or
certiorari shall be deemed to be brought by way of an originating notice or petition.
• The new judicial review application combines, and in the process supersedes, the old writs of
certiorari, prohibition, mandamus, public law declaration, and injunction. (Some statutes include quo warranto and habeas
corpus within the ambit of the statute; some abolish quo warranto; some provinces have a dedicated Habeas Corpus Act.)
• It is sufficient for a party to set out the grounds on which relief is sought and the nature of the relief
sought, without having to specify under which particular writ he or she might have proceeded at common law.

CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW – STATUTORY REFORM
2. Simplified remedies
• including, for example, the power to set aside a decision or direct the tribunal to reconsider its decision,
with or without directions.
• Some statutes also expressly give courts the authority to ignore technical irregularities or defects in
form if the court finds no substantial wrong or miscarriage of justice has occurred.

3. Greater clarity as to who may be parties to a hearing

• for example, decision-makers whose exercise of statutory authority is being questioned.
• Generally, judicial review statutes also provide that notice must be given to the attorney general, who is
entitled as of right to be heard on the application.

4. A right of appeal
• Judicial review applications are generally made to provincial superior courts, and the statutes provide
for a subsequent right of appeal to the provincial Court of Appeal.

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 CHALLENGING A DECISION
REMEDIES ON JUDICIAL REVIEW – STATUTORY REFORM

5. Judicial review mechanisms to challenge interlocutory orders and to resolve interim issues
• At common law, certiorari was only available with respect to “decisions”— that is, final orders.
• However, the B.C. and Ontario Judicial Review Procedure Acts use the words “exercise of
statutory power,” rather than the word “decision,” thereby expanding the range of judicial review to include any
exercise of statutory power.
• Other statutes permit a tribunal itself to refer a “stated case” to the courts for determination of a
question of law, after which the case can go back to the original tribunal for determination of the ultimate issues.
• For example, B.C. tribunals that do not have jurisdiction over constitutional questions under the
Administrative Tribunals Act can issue a stay and refer a constitutional question to a court of competent jurisdiction.
Enabling statutes must authorize stated cases.

CHALLENGING A DECISION
PRIVATE LAW REMEDIES
• Private law remedies available to parties, as against administrative agencies, are outside the
scope of administrative action and judicial review.
• At the same time, increasingly frequent attempts to obtain private law remedies from public bodies
have put pressure on judicial review doctrine.
• In some circumstances, unhappy parties would likely prefer monetary relief to any remedy they could
receive under judicial review.
• The key issue is that neither the old prerogative writs, nor the new statutory remedy of
judicial review, allow a party to obtain monetary relief through judicial review.
• The Crown and its servants can be liable to private parties for monetary relief, although some
statutes limit individual administrative tribunal members’ liability.
• To seek monetary relief, an aggrieved party must initiate a separate civil action for
restitution or damages alongside, or in lieu of, a judicial review application.

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 CHALLENGING A DECISION
PRIVATE LAW REMEDIES

• Although certain government action enjoys immunity from lawsuits depending on

justifiable public policy, government agencies can be sued, for example:
• for breach of contract,
• for the tort of negligence, or
• the special tort of misfeasance in (or abuse of) public office.

• The fact that many parties do want money damages as a remedy is putting considerable
momentum behind the development of the law in this area.

CHALLENGING A DECISION
PRIVATE LAW REMEDIES

Lets focus on the following:

• The special tort of misfeasance in (or abuse of) public office

• Tort overlap with judicial review
• Money/damages
• Monetary damages for Charter breaches

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 CHALLENGING A DECISION
PRIVATE LAW REMEDIES

The special tort of misfeasance in (or abuse of) public office

• To succeed in an action for tort of misfeasance in public office, the plaintiff must establish, in
addition to the basic elements of negligence,
(1) deliberate and unlawful conduct by someone in public office, and
(2) the public officer’s subjective knowledge that the conduct was unlawful and likely to harm the
plaintiff.

• Because this tort alleges bad faith on the part of a public official, “clear proof commensurate with
the seriousness of the wrong” is required.
• The underlying purpose of the tort is to protect each citizen’s reasonable expectation that public
officials will not intentionally injure members of the public through deliberate and unlawful conduct in the exercise of
public functions.

CHALLENGING A DECISION
PRIVATE LAW REMEDIES

The special tort of misfeasance in (or abuse of) public office

• The leading case on the tort of misfeasance in public office, is Odhavji Estate v. Woodhouse,
2003 SCC 69.
• Odhavji involved an action for damages against police officers and the chief of the Metropolitan
Toronto Police by the estate of an individual shot by the police.
• The plaintiffs alleged that the police officers involved in the shooting did not promptly or fully
comply with their statutory duty to cooperate with an ensuing investigation, and that the chief of police did not
adequately compel them to cooperate.
• The case made its way to the Supreme Court of Canada on the defendant’s motion to dismiss the
plaintiff’s claim, where the Court determined that the plaintiff had made out a cause of action and that the matter
should be allowed to proceed.
• The Court held that there was such a thing as the tort of misfeasance in public office.

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 CHALLENGING A DECISION
PRIVATE LAW REMEDIES

The special tort of misfeasance in (or abuse of) public office

• Since Odhavji, only a few cases have succeeded on a claim of tort of misfeasance in
public office.
• In McMaster v. The Queen (2009), F.C. 937, F.C.J. No. 1071 (QL), a prisoner with large
feet requested new pair of properly fitting shoes when his old shoes became worn out.
• A long and apparently intentional delay followed in getting him new shoes and, while
waiting, he injured his knee exercising in his old shoes.
• Correctional Services of Canada and prison staff were found liable in tort for
misefeasance in public office, for unlawfully delaying Mr. McMaster’s new shoe request when they should
have known he was at risk of injury.

CHALLENGING A DECISION
PRIVATE LAW REMEDIES
Tort overlap with Judicial Review
• As the previous cases make clear, some torts overlap with a potential judicial review application while others do
not.
• Judicial review was not a possibility in Odhavji or McMaster, because no administrative decision was being
challenged in those cases. In other cases, a tribunal’s conduct may be precisely what is being challenged.
• The precise relationship and potential overlap between private rights of action and judicial review applications was
a cause for concern for a number of years.
• Until 2010, courts upheld the Grenier Priniciple, which stood for no collateral attack in other forums (like private
actions) until the JR is resolved [Canada v. Grenier, 2006 CA] .
• in 2010, in a case concerning private law claims for breach of contract, negligence, and unjust enrichment, the
Supreme Court of Canada made it clear that:
parties do not need to seek judicial review before they can bring a private
law action for damages, and the private law action does not violate the rule
against collateral attacks.(Canada (Attorney General) v. TeleZone Inc.,
2010 SCC 62)
• If a party has a fundamentally private law claim arising from an administrative decision, and primarily wants
monetary damages, that party may proceed by way of private action.

187
 CHALLENGING A DECISION
MONEY REMEDIES: CANADA (AG) V. TELEZONE INC

• In Telezone, the net of federal government liability was widened by providing litigants with a choice of
procedure to challenge the decision making of FBCT (federal board, commission or other tribunal).
• The implications of Telezone are that:
• A party can seek damages (money) suffered as a result of a decision or action by ADM
through JR or a civil action.
• A party no longer has to bring an application for JR or wait for JR to conclude in order to
pursue money damages
• BUT – the Court still has discretion to stay the claim if court decides the essential character of
action is JR and prime objective is not compensation for the effect of an unlawful action.
• As Binnie J. points out, though, “no amount of artful pleading in a damages case will succeed in
setting aside the order said to have harmed the claimant or enjoin its enforcement. … The claimant must … be
content to take its money (if successful) and walk away leaving the order standing.”

CHALLENGING A DECISION
MONETARY REMEDIES IN CHARTER BREACHES

• When the police – or any other government actor – breach any of the rights and freedoms
guaranteed by the Canadian Charter of Rights and Freedoms, S. 24(1) of the Charter empowers courts to order
any remedy that the court considers appropriate and just in the circumstances.
• Section 24(1) does not appear to limit the court’s choice of remedies. A court may
• dismiss the charge,
• stay the proceeding,
• quash a search warrant, or
• exclude evidence.

• But there has been little authority on monetary damages for Charter breaches.

188
 CHALLENGING A DECISION
MONETARY REMEDIES IN CHARTER BREACHES: VANCOUVER (CITY) V. WARD
• The SCC ruling in Vancouver (City) v. Ward 2010 SCC 27 is significant because it offers guidance on
when monetary damages should be awarded for Charter breaches and the amount that is appropriate.
• Alan Cameron Ward, a Vancouver lawyer, attended a ceremony in Vancouver where Prime
Minister Chrétien was present. The Vancouver Police Department, acting on information that someone intended to
throw a pie at the Prime Minister, mistakenly identified Mr. Ward as the would-be pie thrower and detained him.

• Mr. Ward loudly protested this detention and was arrested for breach of the peace. Once he
arrived at the police station, Mr. Ward was strip searched and then left in a small cell where he spent several hours.
In the meantime, Mr. Ward's car was impounded so that the police could later search it. The officers did not charge
Mr. Ward and he was released.

• Mr. Ward brought an action for breach of his Charter rights against the City and others for his
arrest, detention, strip search and car seizure.

• The trial judge assessed damages under section 24(1) at $100 for the car seizure and $5,000
for the strip search.

CHALLENGING A DECISION
MONETARY REMEDIES IN CHARTER BREACHES: VANCOUVER (CITY) V. WARD
• The Supreme Court found that damages can be an appropriate remedy under section 24(1).
Chief Justice McLachlin found that section 24(1) grants courts broad discretion to award damages, though this
discretion is limited by what is appropriate and just according to the facts and circumstances of a particular
case.
• On that basis, the Court allowed damages for the strip search, but not for the car
seizure.
• Ward represents an important step in the Supreme Court's jurisprudence on Charter
damages – constitutional damages.
• Though the quantum awarded to Mr. Ward may be nominal given the serious
infringement of his rights, the fact that he was awarded damages offers a new approach for Charter
claimants, especially those who are not challenging the validity of a statute or regulation, or seeking to
have evidence excluded in a criminal trial.
• As the first chapter in a new area of Charter law, the new Ward test for constitutional
damages reflects a reasoned balance between remedying Charter violations and public policy
considerations.

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 CHALLENGING A DECISION
USING THE FEDERAL COURTS
• Lets shift focus and concentrates on one particular venue of administrative law practice: the Federal
Courts of Canada.
• The Federal Courts of Canada are not the only superior courts in which administrative law issues
arise. The provincial superior courts and the Supreme Court of Canada are generalist courts and have jurisdiction to deal
with administrative law matters.
• The Federal Courts, however, are distinguished by two qualities.
1. they exercise a virtual monopoly on the administrative judicial review function in relation to the federal
executive.
2. because of the narrowness of their jurisdiction, that monopoly makes Federal Courts mostly
administrative law courts.
• Federal Court judges are, in other words, the closest things to administrative law specialists in the
Canadian judicial system.
• The Federal Court issues a vast number of administrative law cases every year and federal cases
have been the source of many important developments in the administrative law (particularly the case in the area of
common-law procedural fairness).
• For both these reasons, Federal Courts deserve special attention in a volume on administrative law.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - JURISDICTION
• The Federal Courts are “statutory courts”—that is, they are created by federal statute and have only the
jurisdiction conferred on them by that statute.
• Constitutionally, the authority to create the Federal Courts lies in Parliament by virtue of s. 101 of the
Constitution Act, 1867.
• In addition to authorizing a national supreme appeal court, that provision empowers Parliament to
“provide for the Constitution, Maintenance, and Organization … any additional Courts for the better Administration of the
Laws of Canada.”
• As s. 101 “statutory courts,” the Federal Courts differ from the provincial superior courts. Provincial courts—
also known as “s. 96” courts, in reference to s. 96 of the Constitution Act, 1867— are courts of inherent jurisdiction.
• “Jurisdiction” “is shorthand for the collection of attributes that enables a court or tribunal to issue an
enforceable order or judgment.”
• “Inherent,” in this context, means automatic or default jurisdiction.
• Parliament does have the power to give exclusive federal administrative judicial review jurisdiction to
the Federal Courts.
• However, in the Supreme Court’s words, the “ouster of jurisdiction from the provincial superior courts in
favour of vesting exclusive jurisdiction in a statutory court … requires clear and explicit statutory wording to this effect.”

190
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - STRUCTURE AND JURISDICTION
The Federal Court of Canada & the Federal Court of Appeal:
• The Federal Courts Act constitutes the Federal Courts. Specifically, it creates both a Federal Court of Canada (FCC), once
known as the Federal Court—Trial Division, and a Federal Court of Appeal (FCA).
• The FCC is principally a court of first instance—that is, it is the first court that hears a particular dispute. The FCA is an
appellate court, hearing appeals from the FCC and other federal judicial bodies, such as the Tax Court of Canada.
• In some areas of Federal Courts jurisdiction, this pattern of trial court and court of appeal operates much as it would in any
superior court.
• Thus, the FCC has concurrent jurisdiction with the provincial superior courts to hear civil claims brought against the federal
government. This means that plaintiffs may choose to bring their action before either the FCC or a s. 96 court.
• If they opt for the FCC as the court with original jurisdiction, any appeal from the trial of that action is to the FCA and, from
there, with leave, to the Supreme Court of Canada.
• In the administrative law area, it is not always the case that the FCC is inevitably the court of first instance. There are a
number of administrative tribunals enumerated in s. 28 of the Federal Courts Act for whom the FCA is the court of first instance on judicial review.
• These special tribunals include, among others, the Canadian International Trade Tribunal, the Public Service Labour Relations Board, the
Copyright Board, and the Competition Tribunal.
• Any applicant must be attentive to s. 28, or risk filing their application for judicial review in the wrong court. That said, the vast
majority of applications for judicial review are not against decisions by administrative bodies listed in s. 28.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - JURISDICTION
The Federal Court’s Exclusive Jurisdiction - s. 18 and s. 2:

Section 18 of the Federal Courts Act specifies that, subject to s. 28, the
FCC has “exclusive original jurisdiction”:
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo
warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief
contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain
relief against a federal board, commission or other tribunal.
• Section 18 is the source of the FCC’s vast role in Canadian administrative law. It gives the FCC
“exclusive” powers to issue classic administrative law remedies (and hear any application in relation to these) for
any “federal board, commission or other tribunal.”
• “Exclusive” means, in essence, a monopoly, subject to some considerations discussed in s. 2.

191
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - JURISDICTION
The Federal Court’s Exclusive Jurisdiction - s. 18 and s. 2:
• s. 2 of the Act defines “federal board, commission or other tribunal” expansively:
“board, commission or other tribunal” need only be a single “person.” So
long as that person is deploying powers conferred by a federal statute
or under the royal prerogative, administrative judicial review jurisdiction
lies with the FCC.
• S. 2 exceptions:
the Tax Court of Canada or any of its judges, any such body constituted
or established by or under a law of a province or any such person or
persons appointed under or in accordance with a law of a province or
under s. 96 of the Constitution Act, 1867.

• Because, as a practical matter, all the powers that matter in federal administrative action are conferred by
statute or under royal prerogative, the FCC has administrative judicial review authority over all federal administrative action.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - JURISDICTION
The Federal Court’s Exclusive Jurisdiction:
• The question has occasionally arisen as to how exclusive the FCC exclusive jurisdiction really is.
• As noted, s. 96 courts guard their jurisdictional prerogatives closely. It is clear that Parliament can assign federal
courts powers to conduct administrative judicial review authority. It is also clear that Parliament cannot assign federal courts exclusive
federal constitutional judicial review authority: as the Supreme Court noted recently,
Parliament “cannot operate to prevent provincial superior court scrutiny of
the constitutionality of the conduct of federal officials.” Canada (Attorney
General) v. McArthur, 2010 SCC 63
• At best, constitutional review jurisdiction is concurrent, shared by both provincial superior and federal courts.
• Accordingly, an attack on administrative action that is, in turn, grounded in an attack on an allegedly unconstitutional
statute can be brought in either s. 96 or federal courts.
• Further, the Federal Courts’ s.18 jurisdiction does not include issuance of the remedy of habeas corpus, except in
narrow circumstances. For this reason, the provincial superior courts retain habeas corpus jurisdiction in relation to federal administrative
action in circumstances where that remedy’s own requirements are met.

192
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW

• In addition to defining the Federal Courts’ jurisdiction, the Federal Courts Act creates a relatively
comprehensive guide to the manner of, and basis for, judicial review of federal administrative action.
• This includes special rules relating to:
• statutory appeals
• standing
• limitation periods
• grounds of review
• remedies
• Generally speaking, there is no requirement that leave be obtained before an applicant brings an
application for judicial review before the Federal Court, with the following exception:
• Under the Immigration and Refugee Protection Act, judicial review must be commenced via an application
for leave brought before the Federal Court.
• These may or may not be granted and constitute an extra hurdle for judicial review applications in the
immigration context.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Statutory Appeals:
• Applicants must exhaust all other remedies—such as statutory appeals— before applying for judicial
review. Failure to exhaust this administrative appeal option may be a basis for the denial of a remedy on judicial review, a
concept as true at the federal level as it is at the provincial [ Fast v. Canada (Minister of Citizenship and Immigration),
2001 FCA 368]
• In accordance with s. 18.5, where a statutory appeal from an administrative decision-maker lies in one
of the bodies listed in the section, there can be no judicial review of the same subject matter covered by that appeal.
• s. 18.5 is a rigid bar on judicial review. Where it applies, there is no further analysis required.
• As the Federal Court has noted, “Parliament’s clear intention ousts judicial review by the Federal Court
under s. 18.1 of the Federal Courts Act and this intention also removes the necessity for this Court to test whether the
prescribed review route provides for an adequate alternative remedy.”[Abbott Laboratories, Ltd. v. M.N.R., 2004 FC 140,
[2005] 1 F.C.R. D-40]
• This is a sensible and unsurprising limitation for those statutory appeals that go from an administrative
body to a court itself. It would make little sense, for example, for judicial review to be available before the Federal Court
when the same issue may be statutorily appealed to the FCA.

193
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Standing:
• The Federal Courts Act provides that “[a]n application for judicial review may be made by the
Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.”
• This provision provides standing as of right to the government of Canada and standing to persons
“directly affected” by federal, administrative decision making. For a person to be directly affected, “the decision at
issue must be one which directly affects the party’s rights, imposes legal obligations on it, or prejudicially affects it
directly.”
• There are, however, some decisions so general that it is difficult to envisage them being of
sufficient direct affect vis-à-vis any single person. If standing rules were not relaxed in these circumstances, they
would immunize the government from challenge.
• Accordingly, the Federal Courts do recognize “public-interest standing,” something that exists
where the three-part test established by the Supreme Court in Canadian Council of Churches v. Canada (Minister of
Employment and Immigration) is met ( discussed previously)

CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Standing:
• Of note, is Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney
General), which is a recent case involving a constitutional challenge, where the Supreme Court broaden its public
interest standing.
• In 2007, Ms. Kiselbach and SWUAV filed a constitutional challenge to prostitution laws on
the basis that the regulations made sex work dangerous.
• The federal government argued they didn’t have the right to pursue a case that challenged
prostitution law, as neither Ms. Kiselbach nor the group were at risk of being charged under the laws in question.
• the case made its way to the Supreme Court of Canada, which in September 2012 ruled that
Ms. Kiselbach – who now works with a violence prevention group – and SWUAV had public interest standing.

194
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW

Limitation Periods:
• The Federal Courts Act also establishes an unusually demanding limitation period on applications for
judicial review:
“An application for judicial review in respect of a decision or an order
of a federal board, commission or other tribunal shall be made within
30 days after the time the decision or order was first
communicated by the federal board, commission or other tribunal
to the office of the Deputy Attorney General of Canada or to the
party directly affected by it.”
• A judge may extend this time either before or after its expiry, but, to receive such an extension, the
applicant must
“show a continuing intention to pursue the application, that the
application has some merit, that no prejudice to the respondent arises
from the delay, and that a reasonable explanation for the delay
exists.”
• Note that even if a court accepts an extension on the statutory limitation period, it retains a discretion to
deny a remedy on the basis of unreasonable delay.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW

Limitation Periods:

• Also note that the limitation period applies only to circumstances where there has been an actual
administrative decision, as opposed to a challenge to a persisting situation.
• The limitations clock does not, for example, attach to a circumstance in which “an application for
judicial review is sought for an order in the nature of mandamus, prohibition or declaratory relief for redress against
a state of affairs that is by its very nature continuing and on-going and is alleged to be invalid or unlawful.” [Maple
Leaf Foods Inc. v. Consorzio Del Prosciutto Di Parma, 2009 FC 1035]

195
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Grounds of Review:
• Among the most difficult issues raised by the Federal Court’s administrative law role are the grounds of
review available to applicants challenging federal executive decisions.
• In s. 18.1(4), the Federal Courts Act specifies that “[t]he Federal Court may grant relief … if it is satisfied
that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by
law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Grounds of Review:
• Great care is required in reading this language. In the past, some courts have interpreted the grounds
of review listed in s. 18.1(4) as also prescribing the standard of review [Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100] although that reasoning has not survived the Supreme Court’s decision
of Canada (Citizenship and Immigration) v. Khosa.
• The exact matter before the Court was “the extent to which, if at all, the exercise by judges of statutory
powers of judicial review (such as those established by ss. 18 and 18.1 of the Federal Courts Act …) is governed by the common law
principles lately analysed in Dunsmuir.”
• A majority of the Court concluded that s. 18.1(4), although clearly prescribing grounds of review, was largely
silent on the standard of review to be applied.
• Accordingly, it was entirely proper for the Court to turn to the common law (as recently revised by Dunsmuir)
in determining what standard of review it would apply to the ground of review in question.
• Other than on the issue of procedural fairness, there is not much that is uniquely different between the
Courts’ application of the grounds of review and the Federal Court application.

196
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Remedies:
• As already noted, the Federal Court has exclusive, original jurisdiction under s. 18 “to issue an
injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against
any federal board, commission or other tribunal.”
• A more formal remedies section is found at s. 18.1: (3) On an application for judicial review, the Federal
Court may:
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to
do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance
with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board,
commission or other tribunal.
• In essence, this language simply encapsulates in textual form the meaning of the prerogative writs of
certiorari, mandamus, and prohibition and the ordinary remedies of declaration and injunction discussed previously.
• The Federal Courts are equipped with the same remedies as the provincial superior courts,
operating under an unmodified common -law administrative remedy regime.

CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
• like these common-law remedies, the Federal Courts’ power to award remedies is purely discretionary:
• s. 18.1(3) uses the word “may.”
• As a consequence, the Act “preserves the traditionally discretionary nature of judicial review.”
• In practice, the circumstances in which the Federal Courts will award relief are not greatly different from
those in which provincial superior courts will now act.
• For example:
• in deciding whether to “order a federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing,” the Federal Court has employed the common-law tests for the
writ of mandamus [Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, [2007] 2 F.C.R. D-2]
• in deciding whether to exercise its discretion to deny a remedy, the Federal Court has looked to
considerations similar to those contemplated by provincial superior courts, including “prematurity, mootness, waiver, impermissible
collateral attack, conduct, the existence of an alternate remedy, or on the basis of a broader assessment of the balance of convenience
between the parties.” [Mwesigwa v. Canada (Minister of Citizenship and Immigration), 2011 FC 1367]

197
 CHALLENGING A DECISION
USING THE FEDERAL COURTS - FEDERAL JUDICIAL REVIEW
Differences between the federal and provincial remedies systems:
1. Relief under s. 18.1(3) “while doubtless modelled on the forms of relief available under the prerogative orders and the
declaration and injunction, are not necessarily encrusted with the same technicalities that at one time hampered the development of the
common law remedies of judicial review.” [Sierra Club of Canada v. Canada (Minister of Finance), [1999] 2 F.C. 211 (T.D.)]
• This is particularly true in the area of standing and procedure where the Federal Court regime abolishes distinct rules of
procedure and standing for different common law remedies in favour of the system established in the Federal Courts Act.
• Under the Federal rules, one follows the same process regardless of the administrative law remedy one is seeking.
• That hasn’t always been the case at the provincial level, although modern provincial judicial review statutes echo the
Federal Courts Act in consolidating judicial review procedure into a single process, irrespective of the remedy sought.
2. There is a modest statutory embellishment on the common law remedies standard
found in s. 18.1: (5) If the sole ground for relief established on an application for judicial
review is a defect in form or a technical irregularity, the Federal Court may:
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or
order, to have effect from any time and on any terms that it considers appropriate.

CHALLENGING A DECISION
USING THE FEDERAL COURTS

• Consider the following admin issues in Federal Courts:

1. because the Federal Courts are statutory bodies, they are unusually attentive to a statutory basis for their
authority, the Federal Courts Act
2. that statutory basis simplifies matters to an important extent by prescribing in detail guidance on issues
such as standing, limitation periods, grounds of review, and remedies.
3. Exercise caution in relation to these statutory prescriptions.
• the Federal Courts Act’s limitation period is unusually brief, and inattentive applicants may quickly find their
applications dismissed as untimely.
• the statutory codification of grounds of review does not in any real way answer the question of standard of
review (pay close attention to Supreme Court jurisprudence on standard of review)
• Likewise, the codification of remedies in the statute is incomplete, in the sense that much of the common law
on remedies remains relevant, as do the discretionary bases for declining to issue a remedy.
• The Federal Courts Act is the place to start in understanding administrative judicial review at the federal
level.
• It is not, however, the final answer in any judicial review analysis.

198
Canadian Administrative Law
Checklist for Exam
 ADMIN LAW CHECKLIST

STEP 1 – DOES ADMIN LAW APPLY?

 Is it a public body making a decision?

 Is this a procedural issue or a substantive issue?

STEP 2 – IS THERE A RIGHT TO APPEAL/RECONSIDERATION/REVIEW?

 Check the enabling statute– tends to oust common law - does it refer to appeal,
reconsideration, and judicial review?

o Exhaust all internal review/appeal mechanisms BEFORE proceeding to JR

 Check General Procedural Codes if applicable (i.e. JRPA)

 If YES…is it through internal mechanisms (reconsideration/appeal within the

tribunal) or external mechanisms (an appeal to the courts)?

o What is the scope of the review (example: on a question of law only)?

o Any Preconditions (time limits, final decisions only)?

o Is it federal or provincial (Statute may spell out which court)?

o Is the standard of review spelled out in the Statute?

o What are the avaiable remedies?Are they limited? Can the reviewing
decision maker substitute their own decision?

STEP 3 – IF NO STATUTORY RIGHT TO APPEAL OR… IF RIGHT IS LIMITED - JR

 Courts have jurisdiction to review through JUDICIAL REVIEW (s.96 and Crevier) –
through an Application to Divisional Court.

 A party seeking to challenge ADM action/decision through JR should determine:

o Whether the decision maker (the tribunal) is a public body o Whether s/he
has standing to challenge the decision
o Which court s/he should apply to for judicial review
o Whether the application for JR is within the time limits
o Whether the party has exhausted all other adequate means of challenge
o Whether the remedies available address ‘success’

1
STEP 4 – REMEDIES – WHAT ARE YOU SEEKING?

 Substantive Defects: writs, declaration, private remedies (money/damages)

 Procedural Defects: quashing the decision, Charter remedies

Remember that the court may still deny remedies based on discretionary grounds

STEP 5 – DISCRETION TO DENY THE APPLICATION FOR JUDICIAL REVIEW

o Availability of alternative remedies o Prematurity

o Mootness
o Delay
o Misconduct of applicant
o Waiver
o Balance of convenience
o Standing – i.e. public interest

Are you challenging procedural or substantive defects?

PROCEDURAL ISSUES - THE DUTY OF FAIRNESS

PROCEDURAL STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

o The trigger/ threshold test – is a duty owed?

2
o When a duty of fairness is not owed…exceptions / limitations

1. The duty does not apply to investigations or advisory processes – It applies to

decisions

2. The duty does not apply to legislative decisions/functions

 Includes policy decisions
 Includes subordinate legislation
 Cabinet and ministerial decision may be exempt

… BUT need to balance this exception with the question of whether

individual’s rights, interests/ privileges are at stake?

3. The duty does not apply to public office holders employed under contracts

4. The duty may be suspended or abridged in the event of an emergency

5. Interest under section 7 of the Charter that is purely economic is not enough

PROCEDURAL STEP 2 - IF FAIRNESS IS OWED WHAT IS THE CONTENT OF THE

DUTY – WHAT DOES “FAIR” LOOK LIKE?

 To determine the content of procedural fairness look at the SOURCES OF

PROCEDURAL FAIRNESS

• The enabling statute

• Generally, If there is an enabling statute then that is where you go to determine

the content of the duty

o Check any regulations or rules made under that statute

o Statute can oust what the common law would provide – but statutory
language must be very clear in order to do so
o Even clear language could be set aside a provision in a statute if it violates a
Charter right

• A general procedural statute/ special provincial level statutes

o Ontario - Statutory Power Procedure Act (SPPA)

• Common law – if the statute is silent or vague

o Where the enabling statute is NOT a complete procedural code or it is silent, or

only provides for a minimal procedure or expressly denies certain procedural safeguards,
the duty to act fairly may be prescribed by the common law
3
 Applying Baker - the 5 contextual considerations under the common law

1. The nature of the decision being made and process followed in making it
2. The nature of the statutory scheme and the terms of the statute pursuant to
which the body operates
3. The importance of the decision to the individual or individuals affected
4. The legitimate expectations of the person challenging the decision
5. The choices of procedure made by the agency itself

• The Constitution, the Charter and the Canadian Bill of Rights

o Charter section 7: cases involving life, liberty and security of the person must
be made in accordance with principles of fundamental justice (Singh’s 3 questions).

o Bill of Rights: federal actions involving life, liberty, security and enjoyment of
property entitled to due process; determinations concerning rights and obligations must be
made in accordance with principles of fundamental justice

• Legitimate expectation

o Procedural fairness may be imposed where otherwise would not have been

SPECIFIC CONTENT ISSUES:

 THE RIGHT OT BE HEARD

• Notice: timing, sufficient content and form, manner of service)

• Evidence - Disclosure (before hearing): not absolute and subject to eexceptions
(privilege, medical, national security, informants, commercially sensitive information)
• Evidence – Admissibility: tribunals not bound by law of evidence (unless statute
says otherwise)
• Timeliness and Delay in proceedings
• Oral hearings: not necessarily required but ask what’s at stake? (Credibility)
• Right to counsel: not absolute – is it a right to state funded counsel or just to be
represented? (Seriousness, complexity, capacity of self rep)
• Right to be present
• Right to call and cross examine evidence
• The duty to give reasons: required where decision is significant or where statutory
right of appeal and “other circumstances” as per Baker (open ended)

4
 RIGHT TO AN UNBIASED DECISION MAKER

• Test: Reasonable Apprehension Test (Liberty)

• Individual

o Antagonism during the hearing

o Association between party and decision-maker
o Involvement of decision-maker in earlier stage of process
o Prejudgment by decision-maker
o Monetary/other personal interest

• Institutional (Lippe)

o Closeness between an agency/tribunal and government

o Sub-delegation
o Intra agency Consultation
o Consistent decisions and guidelines
o Multiple and overlapping functions: counsel, of decision-maker

• Lack of Independence (Valente, Matsqui)

o Security of tenure - basis for removal

o Financial security - process and fixed rate
o Administrative control - assignment of cases and resources

PROCEDURAL STEP 3 – IF THERE IS A PROCEDURAL BREACH – WHAT IS

THE REMEDY?

Procedural Breach = CORRECTNESS – no standard of review analysis

1. The remedy is to quash/void the original decision

• Based on Cardinal v. Kent: Right to a fair hearing is an “independent, unqualified

right” the breach of which always renders a decision invalid – regardless of result being
right

2. The remedy may be a Charter remedy (if available)

5
 SUBSTANTIVE – DECISION/REASONS & THE STANDARD OF REVIEW

SUBSTANTIVE STEP 1 – CATEGORIZE THE NATURE OF THE ISSUE

This question raises an error of ___________? (fact, law, jurisdiction, etc..)

SUBSTANTIVE STEP 2 - CASE LAW RE: STANDARD OF REVIEW

Determine whether existing case law applies to determine what standard has been
applied to that issue/question in the past

Categories that generally attract Categories that generally attract

reasonableness correctness

Questions of fact Constitutional questions, including those

related to the division of powers

Questions of mixed fact and law Issues of general law that fall outside the
administrative decision-maker’s area of
expertise

Exercise of discretion Questions directly related to the administrative

decision-maker’s jurisdiction and the scope of
his or her powers or authority

Policy questions

An administrative decision-maker interpreting its

own enabling statute as it relates to its function

Issues of general law where the decision maker

has developed a particular expertise

SUBSTANTIVE STEP 3 – IF NO CLEAR JURISPRUDENCE – STANDARD OF REVIEW

ANALYSIS

 REASONABLENESS or CORRECTNESS?

 “default is reasonableness”

o Use Dunsmuir and the standard of review analysis to determine applicable standard.

o Also, identify any relevant post Dunsmuir approaches like proportionality – note the
recent decisions.
6
 Consider the 4 contextual factors in the standard of review analysis

(1) Privative clause - Strong or weak? Existence of privative clause usually leads to
reasonableness standard. Statutory right of appeal can lead to correctness and
reasonableness
(2) Expertise – of the decision maker and the tribunal as a whole

(3) Purpose of the act as a whole and the provision in particular, and

(4) Nature of the problem: question of law, question of fact, question of mixed fact and
law, policy questions, discretionary questions
o May not need to go thru all 4 factors

SUBSTANTIVE STEP 4 - LOOK AT THE DECISION

 Is the decision reasonable or correct? Apply the 2 part test (reasons and outcome)

(1) Reasons

• Do they justify the decision by using transparency, intelligibility, and justifiability of

the process of reasoning/decision making
• that all audiences—counsel, affected persons and especially the losing party,
reviewing courts, other agencies, and the general public—can understand, and

(2) Outcome

• Do they illustrate that the outcome is also reasonable when, as is often the case in
administrative decision-making, more than one reasonable result is possible.

SUBSTANTIVE STEP 5 – REMEDIES

 Prerogative Writs
o Certiorari (to quash or set aside a decision) o Prohibition (to order a tribunal not to
proceed)
o Mandamus (to order the performance of a public duty)
o Declaration
o Habeas corpus and Quo warranto?

 Private Law Remedies

o Money/damages
o Monetary damages for Charter breaches
o The special tort of misfeasance in (or abuse of) public office
7
Canadian Administrative Law
Sample Scenarios
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

NCA PREP COURSE – ADMIN LAW

NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

STEP 1 - DOES ADMIN LAW

SCENARIO 1 APPLY? IS IT A PUBLIC
Mr. X and the Insurance Act BODY MAKING A
DECISION?
Excerpt from Insurance Act and the DRPC provided below.
STEP 2 - IS THERE A RIGHT
Mr. X (the applicant) filed an Application for accident benefits with TO
APPEAL/RECONSIDERATIO
FSCO, he attended a pre-hearing conference (a pre-hearing takes place
N/ REVIEW?
prior to the hearing to assist parties in preparing for the hearing –
arbitrators can make production type orders at this stage if there are STEP 3 - JR - IF NO
disputes). The insurance company (the respondent) made submissions that STATUTORY RIGHT TO
they heard Mr. X had been in several previous car accidents and had a APPEAL OR… IF RIGHT IS
LIMITED
long pre-existing medical history. They alleged that his injuries were all
pre-existing and not caused by the accident. For this reason the respondent STEP 4 - REMEDIES –
made a production request to obtain 10 years of medical records for Mr. WHAT ARE YOU
X. (the standard for this type of production is 1 year pre-accident unless SEEKING?
there is reason to order more). Mr. X objected that 10 years of records was STEP 5 - DISCRETION TO
excessive and a huge invasion of his privacy. At the pre-hearing, the DENY JR
arbitrator heard submissions from both parties and made a production
order. She ordered 2 years of pre-accident medical records. The
PROCEDURAL 1 -
respondent, very unhappy with this decision, left the pre-hearing
DETERMINE WHETHER
indicating that they would go no further in the process as they would be FAIRNESS IS REQUIRED
appealing this decision. Is this option open to the respondent?
PROCEDURAL 2 - IF
An arbitration hearing takes place and the parties make their final FAIRNESS IS OWED WHAT
submissions. The arbitrator reserves on the decision. Prior to the decision IS THE CONTENT OF THE
DUTY?
being issued by the arbitrator, Mr. X receives a new diagnosis from his
doctor that his condition has worsened and he may potentially never be PROCEDURAL 3 - IF
able to return to work again. What options, if any, are available to Mr. THERE IS A PROCEDURAL
X? BREACH – WHAT IS THE
Would his options be any different if a decision had already been REMEDY?
rendered?

SUBSTANTIVE 1 -
CATEGORIZE THE NATURE
OF THE ISSUE

SUBSTANTIVE 2 - CASE
LAW RE: STANDARD OF
REVIEW

SUBSTANTIVE 3 - IF NO
CLEAR JURISPRUDENCE -
STANDARD OF REVIEW
ANALYSIS
SUBSTANTIVE 4 - LOOK AT THE DECISION

SUBSTANTIVE 5 – REMEDIES [SEE CHECKLIST- p. 26]

 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

The decision comes out in favour of the applicant and he is awarded ongoing weekly benefits for income
replacement. The respondent disagrees with the decision on 2 points. First, they disagree that the arbitrator should
have relied on the evidence of the applicant’s wife as they did not find her credible. Second, they argue that the
arbitrator has misinterpreted the definition of “permanent” disability in the statute. It is now six weeks after
receiving the decision. They want the decision/order of the arbitrator stayed so they don’t have to start paying any
of the weekly benefits until the appeal is resolved. How would you advise the respondent of their options?

Excerpt from Insurance Act

Appeal against arbitration order

283. (1) A party to an arbitration under section 282 may appeal the order of the arbitrator to the Director on a question of
law. 1996, c. 21, s. 39 (1).

Notice of appeal
(2) A notice of appeal shall be in writing and shall be delivered to the Commission within thirty days after the date of the
arbitrator’s order and the appellant shall serve the notice on the respondent. R.S.O. 1990, c. I.8, s. 283 (2).

Extension of time for appeal

(3) The Director may extend the time for requesting an appeal, before or after the time for requesting the appeal has
expired, if the Director is satisfied that there are reasonable grounds for granting the extension, and the Director may give such
directions as he or she considers proper as a condition of granting the extension.

Nature of appeal
(4) The Director may determine the appeal on the record or in such other manner as the Director may decide, with or
without a hearing. 1996, c. 21, s. 39 (2).

Power of the Director

(5) The Director may confirm, vary or rescind the order appealed from or substitute his or her order for that of the
arbitrator. R.S.O. 1990, c. I.8, s. 283 (5); 1996, c. 21, s. 39 (3).

Order not stayed

(6) An appeal does not stay the order of the arbitrator unless the Director decides otherwise. R.S.O. 1990, c. I.8, s. 283 (6).

Medical reports, special awards, expenses

(7) Subsections 282 (10) to (11.2) apply with necessary modifications to appeals before the Director. R.S.O. 1990, c. I.8,
s. 283 (7); 1993, c. 10, s. 34; 1996, c. 21, s. 39 (4).

Interventions
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

(8) The Director may permit persons who are not parties to the appeal to make submissions on issues of law arising in an
appeal. R.S.O. 1990, c. I.8, s. 283 (8).
(9), (10) Repealed: 1996, c. 21, s. 39 (5).

Application for variation, Director’s or arbitrator’s order

284. (1) Either the insured person or the insurer may apply to the Director to vary or revoke an order made by the
Director or an arbitrator appointed by the Director. R.S.O. 1990, c. I.8, s. 284 (1); 1996, c. 21, s. 40 (1).

Idem
(2) If an application is made to vary or revoke an arbitrator’s order, the Director may decide the matter or he or she may
appoint the same arbitrator or some other arbitrator to determine it.

Powers on variation
(3) If the arbitrator or Director is satisfied that there has been a material change in the circumstances of the insured or that
evidence not available on the arbitration or appeal has become available or that there is an error in the order, the arbitrator or
Director may vary or revoke the order and may make a new order if he or she considers it advisable to do so.

Idem
(4) An order made, varied or revoked under subsection (3) may be prospective or retroactive. R.S.O. 1990, c. I.8, s. 284
(2-4).

Excerpt from Dispute Resolution Practice Code

REOPENING OF HEARING

43.1 The arbitrator may reopen a hearing at any time before he or she makes a final order
disposing of the arbitration.

43.2 Rules 37 to 42 apply to the reopening as modified by the arbitrator.

PART 4 - APPEAL OF ARBITRATION ORDER

50. APPEAL

50.1 A party to an arbitration may appeal an order of an arbitrator to the Director only on a question of law.

50.2 A party may not appeal a preliminary or interim order of an arbitrator until all of the issues in dispute in the
arbitration have been finally decided, unless the Director orders otherwise.

50.3 An appeal does not stop an arbitration order from taking effect, unless the Director orders otherwise.
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

51. STARTING AN APPEAL

51.1 To appeal an arbitration order, the appellant must:

(a) complete a Notice of Appeal in FORM I ;

(b) serve a copy of the Notice of Appeal on the respondent's lawyer or if the respondent was not represented by a lawyer
at the arbitration hearing, on the respondent;

(c) file the Notice of Appeal and a Statement of Service in FORM F; and

(d) pay the application filing fee set out in Section D of the Code.

51.2 An appeal may be rejected if:

(a) it is out of time;

(b) it does not raise a question of law;

(c) it is from a preliminary or interim order that does not finally decide the issues in dispute;

(d) the Notice of Appeal is incomplete or lacks sufficient details to allow the other party to respond; or

(e) the appellant does not pay the required application filing fee

51.3 If the Director determines that a Notice of Appeal is incomplete or is rejected under Rule 51.2, the Director will
notify the parties and their representatives of the rejection.

51.4 Upon receipt of a properly completed Notice of Appeal, Statement of Service and the application filing
fee, the Director will promptly acknowledge the appeal.

52. TIME FOR APPEAL

52.1 Subject to Rule 52.2, the appellant must file the Notice of Appeal within 30 days of the date of the arbitration
order.

52.2 The Director may extend the time for requesting an appeal on such terms as he or she considers appropriate, either
before or after the 30-day time limit, if he or she is satisfied there are reasonable grounds for granting the extension.

53. RESPONSE TO APPEAL

53.1 Within 20 days of receiving the Director's acknowledgment of the Notice of Appeal (see Rule
51.4), a respondent must:
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

(a) complete a Response to Appeal in FORM J;

(b) serve the Response on the appellant's representative or if not represented, on the appellant; and;

(c) file a copy of the Response and a Statement of Service in FORM F.

WRITTEN SUBMISSIONS

54.1 Unless the Director orders otherwise, the appellant must:

(a) serve and file written submissions within 30 days of the date on which the Response to Appeal was due; and

(b) file a Statement of Service in FORM F

54.2 If a transcript has been ordered, the time limit for the appellant's written submissions set out in Rule 54.1(a) is
extended to 30 days from the date on which the transcript is received.

See Rule 74 regarding transcripts.

54.3 Within 20 days of receiving the appellant's written submissions, the respondent must:

(a) serve on the appellant and any other parties any written submissions upon which the respondent intends to rely; and

(b) file the written submissions and a Statement of Service in FORM F.

54. APPEAL BY RESPONDENT ("CROSS-APPEAL")

55.1 If the respondent intends to appeal the arbitration order, a separate Notice of Appeal must be completed and the
time periods for appeal, as set out above, apply.

55. THE APPEAL PROCESS

56.1 The Director may appoint a person to conduct the appeal on his or her behalf and to exercise the powers and
perform the duties of the Director relating to the appeal.

56.2 An order made by a person appointed under Rule 56.1 is considered an order of the Director.

56.3 Unless the Director orders otherwise, an appeal will only include issues that were the subject of the arbitration
proceeding or dealt with in the arbitration order being appealed.

56.4 The appeal record includes the Notice of Appeal, the Response to Appeal, the written submissions of the parties,
and the record of the arbitration hearing, including all arbitration exhibits and, if it is filed, the transcript of the
arbitration hearing.
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

56.5 The Director may decide the appeal:

(a) on the record;

(b) by way of an oral hearing or an electronic hearing; or
(c) in any other manner that the Director considers appropriate.

56.6 If the Director decides to schedule an oral or electronic hearing, a Notice of Hearing will be delivered to the
parties and their representatives.

56. PRELIMINARY CONFERENCE

57.1 The Director may require the parties to participate in one or more preliminary conferences.

57.2 Rule 33 applies with necessary changes to a preliminary conference held under this Part.

57. NON-PARTICIPATION

58.1 The Director may proceed with an appeal even though a party fails to file any document required by these
Rules.

58.2 Where a Notice of Hearing has been delivered to a party, and the party does not attend, the Director may proceed
with the oral submissions or the hearing in the absence of the party, and the party is not entitled to any further notice in
the proceeding.

PART 5 – VARIATION OR REVOCATION OF AN ORDER

61. APPLICATION FOR VARIATION /REVOCATION

61.1 Either the insured person or the insurer may apply to the Director to vary or revoke an arbitration order
or an appeal order if:

(a) there has been a material change in the circumstances of the insured;

(b) evidence not available on the arbitration or appeal has become available; or

(c) there is an error in the order.

61.2 A party may not apply to vary or revoke a preliminary or interim order of an adjudicator until all of the issues
in dispute in the proceeding have been finally decided, unless the Director orders otherwise.

61.3 A party seeking to have an arbitration order or an appeal order varied or revoked must:
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

(a) complete an Application for Variation/Revocation in Form L;

(b) serve a copy of the Application on the respondent's lawyer or, if not represented by a lawyer, on the respondent;

(c) file the Application and a Statement of Service in FORM F; and

(d) pay the application filing fee set out in Section D of the Code.

61.4 The Application for Variation/Revocation may be rejected if:

(a) it is from a preliminary or interim order that does not finally decide the issues in dispute;

(b) it is incomplete or lacks sufficient details to allow the other party to respond;

(c) it is in respect of an order that has been appealed, and the appeal is pending; or

(d) the applicant does not pay the required application filing fee.

61.5 If the Director determines that the Application for Variation/Revocation is incomplete or is rejected under Rule
61.4, the Director will notify the parties and their representatives of the rejection.

61.6 The Director will promptly acknowledge the Application for Variation/Revocation upon receipt of a
properly completed Application, Statement of Service and the application filing fee.

62. Response to the application for variation/revocation

62.1 Within 20 days of receiving the Director's acknowledgment of the Application for Variation /Revocation
(see Rule 61.6), a respondent must:

(a) complete a Response to Application for Variation/Revocation in Form M;

(b) serve the Response on the applicant's representative or if not represented, on the applicant; and

(c) file a copy of the Response and a Statement of Service in Form F.

The variation/revocation process

63.1 The Director may:

(a) decide the Application for Variation/Revocation;

(b) delegate a person to decide the Application for Variation/Revocation on his or her behalf and to exercise the powers
and perform the duties of the Director in relation to the Application; or
 NCA PREP - SAMPLE SCENARIOS BOOKLET - 2014

(c) appoint the same adjudicator who made the original order or another adjudicator to decide the Application for
Variation/Revocation.

63.2 Rules 54, 57 and 58 apply to an Application for Variation/Revocation with necessary changes.
 NCA Prep - Sample Scenarios Booklet - 2014

SCENARIO 2
Ms. Y and the HRTO
Excerpt from Ontario Human Rights Code provided.

Ms. Y, a potential client just called you. Until recently she worked as a welder at Steel Max Steel. She said that
she was injured a while back and was no longer able to do parts of her job. Ms. Y recently received a decision
regarding a claim she made for WSIB benefits. Her claim was denied by the Board. She disagrees with the
WSIB decision but is no sure about her next steps. Ms. Y also filed an Application with the Human Rights
Tribunal of Ontario (HRTO) because she felt that the way she was treated by her employer in denying her claim
and not finding her modified duties was discriminatory. The HRTO told her she was out of time and according
to her would not accept her application. They also advised that her application was being dismissed because her
claim had been dealt with at WSIB.

Ms. Y mentioned that she is part of a female welders association and they wanted be added as a party to any appeal
as they felt that this will affect female welders’ rights across Ontario.

1. What information will you need to ask Ms. Y before you can advise her and agree to accept her case?

2. What are some of the potential legal issues that may arise in this case?

Excerpt from Ontario Human Rights Code

Application by person
34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may
apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series. 2006, c. 30, s. 5.

Late applications
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the
Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person
affected by the delay. 2006, c. 30, s. 5.
Dismissal in accordance with rules
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the
Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
2006, c. 30, s. 5.
 NCA Prep - Sample Scenarios Booklet - 2014

Reconsideration of Tribunal decision

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its
decision in accordance with the Tribunal rules. 2006, c. 30, s. 5.
Same
(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in
accordance with its rules. 2006, c. 30, s. 5.
Decisions final
45.8 Subject to section 45.7 of this Act, section 21.1 of the Statutory Powers Procedure Act and the
Tribunal rules, a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside
in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
2006, c. 30, s. 5; 2009, c. 33, Sched. 2, s. 35 (3).

Additional info:

Practice Direction on Reconsideration

The Human Rights Tribunal of Ontario (the HRTO) has developed the following approach to requests
for reconsideration. The procedure outlined below provides general information only. It is not a rule within
the meaning of the HRTO’s Rules of Procedure. The HRTO may vary the approach to reconsideration
where appropriate.

General

Decisions of the HRTO are final and are not subject to appeal. However, parties may request that the HRTO
reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a
decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there
are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public
interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of
its case.

In every case where a request is made to reconsider a decision, the HRTO must decide whether it is advisable
to do so in the circumstances. If the HRTO decides it is advisable to grant a request for reconsideration, it must
then decide whether the previous decision should be changed and, if so, how it should be changed.

The decision on whether to grant a request for reconsideration is made based on the criteria set out in the
Rules and on the facts of each request. Some examples of situations where the HRTO might decide that it is
advisable and appropriate to grant a request to have a matter reconsidered are:

• where it appears that the party seeking reconsideration was entitled to but, through no fault of its own, did
not receive notice of the original hearing;
• where it appears that there is new evidence that could potentially be determinative of the case and, for
reasons beyond the Party's control, the evidence was not obtainable at the time of the Hearing.
 NCA Prep - Sample Scenarios Booklet - 2014

• Some examples of situations where the HRTO might decide it is not advisable or it is inappropriate to
grant a request for reconsideration are:
• where a party disagrees with and wishes to challenge a finding of fact, including findings made about the
credibility of witnesses;

Additional Information re appealing a WSIB Claim:

There may be times when you or your employer do not agree with a decision made by the WSIB about your
claim. If you have questions about a decision, ask us; we are here to help.

If you still disagree with the decision, you have the right to appeal. The WSIB Appeals Branch will consider
and reach final resolutions to your objections. Detailed information about the appeals and dispute resolution
processes is outlined in the Appeals System Practice and Procedures document .

Time limits

There is a 30-day time limit on appealing a WSIB decision about a Return to Work or Work Reintegration
plan made on or after January 1, 1998.

There is a six-month time limit on appealing any other WSIB decision made on or after January 1, 1998.

When you receive your decision letter, the applicable time limits for appealing the decision will be outlined.

How to appeal

If the WSIB makes a decision that you do not agree with, the first step is to discuss the issue with person who
made the decision to try to resolve the situation.

If after speaking with your case manager, you still wish to proceed with an appeal, the WSIB requires a written
request before the time limit runs out.

The WSIB will acknowledge your appeal request and will contact you for further details. The next steps in the
appeal process will then depend on whether you wish to appeal immediately, or if you are protecting your right to
appeal at a later date.

After a successful appeals decision

The WSIB will outline, where possible, the benefits payable following a successful appeal. Our goal is to
carry out the decision quickly, and no later than 30 days after the date of the Appeals decision.

If further information is required, your case manager will advise you directly about what
additional information is required to implement the decision.
 NCA Prep - Sample Scenarios Booklet - 2014

SCENARIO 3
Sally

Statutory provisions of the Licensing of Liquor Act of Ontario provided

Sally is an avid fan of the Montreal Canadiens hockey team. Until recently, she owned a sports bar in Toronto called
the Hungry Habitant, which she ran successfully for 18 years. In June 2008, Sally’s liquor licence was suspended for
one year by the Minister of Public Health and Safety.
Sally was notified that a Ministry inspector, Theodore, had carried out an inspection and she was given a
summary of Theodore’s report, which stated:

“An inspection was made into the Hungry Habitant after numerous members of the public complained that
liquor was being served to minors and that drug trafficking was taking place on the premises. The inspector
found these complaints to be credible.”

Sally immediately emailed the Ministry and was advised that she could plead her case before the Alcohol and
Gaming Control Board which had the power to reimburse her for any lost business. She immediately sought a
review before the Board and a panel of three Board members was appointed. Two of the members had experience
in restaurants and the third was a lawyer named Jill who was called to the Bar in 2006 after completing her
articles at the Board, and who was appointed to the Board the day after Sally sought a review. The Board’s rules
of procedure gave it broad discretion to control its hearings and the method of testimony of witnesses.

The Board held a two-day hearing in October 2008. It heard testimony from Sally, Theodore, and the two
members of the public from whom written complaints were received by the Ministry. The panel withheld the
identity of these last two witnesses from Sally and from the public “to protect their personal safety and
privacy”. Both witnesses testified from behind a screen with their voices disguised electronically and Sally
was not allowed to cross-examine them. Before the hearing, Sally received a detailed summary of the
witnesses’ anticipated testimony and she was represented by counsel at the hearing.

During Sally’s cross-examination of Theodore it was revealed that in April 2008 the Ministry received a
complaint about Sally from Derek, the owner of a popular sports bar across the street from the Hungry Habitant.
Theodore testified that this complaint was not relied on by the Ministry and that Theodore did not consider it
credible in his inspection. Sally was not informed of the substance of Derek’s complaint.

In November 2008, the Board upheld the suspension Sally’s licence but limited it to a six-month period. The
Board gave lengthy reasons elaborating the statutory requirements for liquor licences, briefly summarizing the
evidence at the hearing, finding based on that evidence that Sally had served minors and that she had knowingly
sold alcohol which was unlawfully imported into Canada, finding insufficient evidence of drug trafficking at the
premises, and concluding that Sally had not carried on her business ‘with integrity’. Shortly after, Sally closed the
Hungry Habitant due to lost revenue arising from the loss of her liquor licence. Last week, Sally learned that Jill
is the vice president of fan club for the Toronto Maple Leafs hockey team and that Jill is also Derek’s former
sister-in-law (Jill and Derek’s brother were recently divorced).
 NCA Prep - Sample Scenarios Booklet - 2014

STATUTORY PROVISIONS

Licensing of Liquor Act of Ontario

s. 1
No person shall sell liquor except under the authority of a licence issued under this Act.

s. 2
The Minister of Public Health and Safety (the “Minister”) shall issue a licence to sell liquor to any person who applies unless,

(a) the person cannot reasonably be expected to be financially responsible in the carrying on of a relevant business;

(b) the conduct of the person affords reasonable grounds for the belief that he or she will not carry on business in
accordance with the law and with integrity and honesty; or

(c) the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in
which the business premises are located.

s. 3
The Minister may suspend a licence where reasonable grounds are found to exist that the person to whom it was issued has failed to
comply with one or more of the criteria for issuance of a licence as outlined in s. 2.
….

s. 10
A person whose licence is suspended by the Minister may apply to the Alcohol and Gaming Control Board (“the Board”) for a
review of the decision. Following a hearing, the Board may re-issue the licence or attach conditions to its suspension or vary such
conditions. This decision of the Board is final.

s. 11
All members of the Board shall be appointed by the Lieutenant Governor in Council on a part-time basis and shall be
removable at pleasure.

s. 12
The Lieutenant Governor in Council shall designate one of the members as chair of the Board. The chair of the Board may
direct that a hearing be held before a panel consisting of one or more members of the Board, as he or she may designate. At least
one member of the panel must have legal expertise or experience.

s. 13
The Board has jurisdiction to determine all questions of fact or law that arise in matters before it.

s. 14
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A party to a hearing before the Board may appeal from the Board’s decision to the Divisional Court on a question of law only.
....

s. 20
The Minister and the Board shall exercise their powers and duties in accordance with the principles of honesty and
integrity, and social responsibility.

What standard of review would apply to the substantive decision of the Board? Applying that standard of
review, would a court likely interfere with the Board’s decision? Discuss the reasons for your conclusions.

What possible breaches of procedural fairness could be argued by Sally? Which, if any, are likely to
succeed? Discuss the reasons for your conclusions.
 NCA Prep - Sample Scenarios Booklet - 2014

SCENARIO 4
Law Society

A Law Society is an association established by a statute of the Legislative Assembly of a province (the
Law Society Act). Law societies are not government agencies; rather, their membership consists of every
lawyer in the province. A Law Society’s board of directors consists of 40 lawyers (called “benchers”)
elected by the members from among their ranks, as well as four “lay benchers” appointed by the
provincial government. Elections are held every four years.
The statute gives the Law Society authority to regulate the legal profession in the province. The purpose
of the Law Society is to ensure that anyone who practises law in the province is knowledgeable and
competent, and to protect the public against incompetent and dishonest lawyers.
The Law Society administers a course that all law students must pass before they can practise law. If a
professor fails a student, the student has a right to appeal his or her mark to a committee of the Law
Society. If a law student passes the course, the Law Society issues a licence authorizing that person to
practise law.
The Law Society specifies standards of conduct that all lawyers must meet and practices that must be
followed in maintaining a law office, such as keeping certain books and records, particularly financial
records. It sets these standards through regulations under the Law Society Act and through binding rules
that it can make under that Act, as well as policies and guidelines that are not binding. The benchers make
these regulations, rules, policies, and guidelines.
Through its benchers, the Law Society also makes recommendations to the provincial government about
changes to the Law Society Act; new regulations that the government, rather than the benchers, may enact;
and other changes to practices and legislation that are favourable to its members—for example, increases in
the rate of payment for legal aid cases, and regulation of paralegals and others who are not lawyers but do
certain kinds of legal work.
The Law Society also provides continuing education programs that lawyers are encouraged to
attend.
All practising lawyers in a province are required to carry malpractice insurance provided by a corporation
established by the Law Society. The Law Society Act prohibits the practice of law without payment of the
insurance premiums.
The Law Society carries out random audits of law firms’ financial records to ensure that they are being
kept properly. It also carries out random reviews of lawyers’ files to ensure that lawyers are providing
satisfactory services to their clients.
In addition, the staff of the Law Society investigate complaints of malpractice brought by clients and by
other lawyers. If the staff find that there has been a breach of any regulation or rule of the Law Society Act
or that a lawyer has fallen below an appropriate
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standard of conduct, a hearing is conducted before a panel of benchers to determine whether the lawyer
should be disciplined.
Lawyers on the staff of the Law Society act as prosecutors, bringing forward the evidence collected by other
staff during the investigation. At the end of the hearing, the panel may find the lawyer guilty or not guilty of
professional misconduct. If the lawyer is found guilty, possible disciplinary measures include a reprimand,
mandatory re-education, a suspension of his or her licence to practise, or a permanent revocation of the
licence

Which of the functions described above are subject to the rules of procedural fairness, and which
are not? Explain.

Of the functions that are subject to the rules of procedural fairness, which ones are subject to the
more stringent requirements of natural justice? Explain.

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NCA SAMPLE 1
Martha Muffin

In 1995, Martha Muffin commenced work as a part-time employee with Scones and Cakes Ltd., a bakery
operating in Fredericton, New Brunswick, working three days a week. In 1998, the employer made her an
offer of full-time employment and she accepted. In March of 2006, because of a downturn in business, the
employer was forced to lay off 25% of its staff and Martha was one of those given a layoff notice.

The employment relationship between the employer and its full-time employees is regulated by a
collective agreement entered into under the provisions of the New Brunswick Labour Relations
Act (“the Act”). Under that collective agreement, it is provided:
136. In any lay off of employees, the employer will observe strictly the principle of seniority. That means
that any lay off will be on the basis that those hired most recently will go before those with longer service.

When she learns of her lay off, Martha is dismayed to also discover that Ralph Biscuit, who started work
with the employer in 1997, has not been laid off. When she makes inquiries of the personnel manager of the
employer, Martha is told that she has less seniority than Ralph because he started work initially as a full-
time employee and she only became a full-time employee in 1998. It was only at that point that she became
covered by the collective agreement, its terms explicitly excluding part-time employees.

Martha then took her case to her union representative and the representative filed a grievance on her behalf
arguing that the wording of clause 136 made it clear that, for the purposes of seniority, the date that mattered
was the date of initial hiring (whether as a part or full-time employee) and not the date on which the
employee became otherwise covered by the collective agreement. The employer rejected this grievance and
the Union took the matter to arbitration where it was equally unsuccessful. The arbitrator held that the term
“employees” in clause 136 meant “employees covered by the collective agreement” and that the principle of
seniority applied on the basis of the period during which the employee in question was covered by the
collective agreement i.e. had been a full-time employee.

The Act provides that every collective agreement shall make provision for “final and binding” arbitration
of workplace disputes, and clause 147 of the collective agreement provides that any award made by an
arbitrator on a grievance is “final and binding on the parties”. The arbitrator was appointed from a list of
arbitrators agreed to by the parties, a list that operated on a rotational basis.

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The Union then commenced an application for judicial review in the New Brunswick Court of Queen’s
Bench. It asserted that the arbitrator had interpreted the collective agreement incorrectly and that the Court
should quash the award. In response, the Union argued that the Court had no basis for intervening in the
arbitrator’s interpretation of the collective agreement, an interpretation that was final and binding.

Write the judgment of the Court dealing with the application for judicial review.

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NCA SAMPLE 2
Bidding under Fair Wages Policy

Acting under the Federal Public Works Act, the Governor in Council has promulgated a regulation
establishing a fair wages policy for employers who are successful in bids for Government of Canada work.
Under this regulation, it is provided that any employer who has twice violated the fair wages policy may be
disqualified from bidding for Government of Canada work for a period of two years.

The regulation creates a complaint mechanism whereby employees can lodge a complaint with the Director of
the Fair Wages Policy Office that the employer has not been paying a fair wage as provided for in the regulation.
The regulation goes on to instruct the Director to investigate any complaint and to report her or his findings to the
Minister of Public Works with any recommendation as to sanction. In turn, the Minister is authorized to issue a
disqualification notice in the case of a second violation of the Policy.

In March of 2006, the Director received two separate complaints of a violation of the Fair Wage Policy
against Magic Construction Ltd., which at that time was engaged in building two ice hockey arenas for the
Department of National Defence. On each of those projects, its employees were receiving the same wages.

The Director asked the company for its wages records for each of those projects and, on the basis of those
records, concluded that the company in each instance had been paying less than the wages required by the
fair wages policy. The Director then made a report to the Minister on each of the complaints, and
recommended that the Minister issue a disqualification order on the basis of two violations. The Director
sent a copy of this report to Magic Construction Ltd.

At this juncture, the President of Magic Construction Ltd. approaches the senior partner of the law firm at which
you are articling. She tells the senior partner that the company now realises that it had indeed been violating the
fair wages policy on each of its projects.
However, the Director had never given the company a chance to explain its actions and, more particularly,
had not alerted it to the fact that its ability to bid on government work was in jeopardy. The President went
on to assert that, if given the opportunity, she would have urged the Director that disqualification for two
separate violations was only triggered in the case of a further violation after a finding of an initial violation
and not in the case of contemporaneous violations resulting from the same company wages scale.

The President also learns that the spouse of one of the complaining employees is one of six staff persons
in the office of the Minister of Public Works.

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Following the consultation with the President of Magic Construction Ltd., the senior partner asks you
to provide him with a memorandum on whether there is any basis for judicial review at this stage on
the process.

Prepare that memorandum.

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NCA SAMPLES 3 & 4

Dentist

Under the Alberta Dentistry Act, the Society of Dentists regulates the conduct of the profession including
the discipline of its members. Complaints of professional misconduct are dealt with by the Dentists
Discipline Board, which is comprised of a Chair, and two other members, with provision also made for the
Board to be assisted by a lawyer at any hearing. Under the Act, the Chair and the members are required to
be dentists and are appointed by the Society’s Board of Directors. It is also provided that the Chair is
responsible for reviewing complaints and determining whether there is any basis for an investigation by
the Society’s investigative staff.

Following an investigation, the staff determine whether a hearing is justified and, if so, send it on to the
Society’s “prosecutor” for the formulation of charges and the setting up of a hearing. Under the procedural
rules authorized by the Act, there is no provision with respect to whether dentists are entitled to be
represented at any hearing. However, the rules provide the Discipline Board with a discretion in matters
not covered by the procedural rules “to proceed in a manner which ensures an efficient, fair hearing”.
Sanctions for professional misconduct range from reprimand, through suspension, to expulsion and there
is also provision for a fine of up to $250,000.

In January of 2006, the Chair of the Discipline Board sends a complaint of professional misconduct against
Gerald DeMuth to the Society’s investigators and, following an investigation, the matter is sent on to the
Society’s prosecutor to set up a hearing. At this point, as provided for in the Rules, the Board stages a
prehearing conference. At that conference, DeMuth is represented by Harvey Kyoto, a former dentist who
has, without protest from the Board, acted for a number of years as an advocate for dentists charged with
professional misconduct, including DeMuth himself on one prior occasion. At the prehearing conference,
however, the Chair tells DeMuth and Kyoto that henceforth it will allow only lawyers to act as counsel at
hearings. Kyoto protests loudly but to no avail. He also alerts the Board to the effect that, on behalf of
DeMuth, he wants to argue that the provisions of the Act that authorize the Chair to both direct an
investigation and preside at any subsequent hearing are contrary to sections 7 and 11(d) of the Canadian
Charter of Rights and Freedoms. The Chair, with the consent of the other two members of the Board, tells
Kyoto that neither he nor any lawyer appearing for DeMuth can make that argument as the Board does not
have jurisdiction to entertain Charter challenges.

At the conclusion of the prehearing conference, DeMuth and Kyoto approach the senior partner of the law
firm at which you are articling and seek his advice on whether they have any basis for challenging by
way of judicial review the Board’s refusal to allow Kyoto to represent DeMuth and its ruling that it
has no jurisdiction to entertain Charter challenges. Thereafter, the senior partner asks you to provide
him with a memorandum on those two issues. Prepare that memorandum.
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Once you have completed the memorandum called for in Question 3, the senior partner asks for a follow-
up memorandum on whether the Charter (and sections 7 and 11(d)) even apply to the proceedings
before the Board and, if the Charter and sections 7 and/or 11(d) are engaged, whether the provisions
of the Act with respect to the roles of the Chair constitute a violation. Provide that memorandum.

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EXTRA SAMPLE SCENARIOS

Janet
Janet is a sanitary engineer who has just been through a hearing of the Ontario Review Tribunal of Hasty
Decisions (ORTHD) regarding whether she should be fired from her City of Toronto job due to being
continually late.

You have represented her in the hearing. After the hearing you uncover a City memo which might impact
on the decision. You also believe that the adjudicator made a mistake in interpreting the enabling statute
and finally you believe that the adjudicator is going to probably rely completely on a previous decision of
the ORTHD.

When you receive the decision all your fears are realized: the memo you found could be helpful, the
adjudicator mistakenly interpreted the statute and the decision states that the adjudicator had to follow such
decision.

Advise your client of what three remedies can be used to fight the decision, on what grounds can
each remedy be used and what is one advantage or disadvantage of each remedy as it relates to the
fact situation.

Ministry of Consumer Relations

The Ministry of Consumer Relations, headed by the minister, is responsible for regulating used car
dealers. The registrar, an employee of the Ministry, has the right to recommend that a tribunal, the
Licence Appeal Board, revoke the business licences of dishonest car dealers.
A customer of Active Auto Sales, managed by Mr. James, complained to the Ministry that the company had
turned back the odometer on a vehicle that it had sold to him. After investigating this complaint, the
Ministry determined that turning back odometers was standard practice for this dealership. The company
was charged and convicted of fraud, but no charges were laid against Mr. James. Despite this, the registrar
recommended to the Board that it revoke Mr. James’s licence to sell cars, as well as the licence of his
employer, on the grounds that Mr. James had to be involved in the fraudulent activity given his position in
the company.
The Board holds a hearing to decide whether to accept the registrar’s recommendation to revoke the two
licences. In addition to arguing that he was unaware of the illegal activities, Mr. James argues that the Board
is disqualified from deciding whether to revoke his licence because it is not independent of the Ministry and
therefore has an institutional bias.

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The Consumer Protection Act establishes the Board. It states that the Board will report to the minister of
consumer relations; that the chair and members of the Board will not be civil servants; that the premier will
appoint the chair and members of the Board; and that the chair will decide which members and how many
members will be assigned to each appeal. The Board is required by the statute to follow rules of natural
justice, such as giving notice of hearings, hearing evidence, allowing parties to be represented by counsel
or agents, permitting cross-examination, and giving written reasons for its decisions. The statute also
provides for the Board to summon witnesses, hold pre-hearing conferences, and conduct mediation. The
statute allows the Board to make rules of procedure that are approved by the Ministry. It may make
practice directions and issue guidelines for hearings without the Ministry’s approval. The statute also states
that the Board must have regard to any relevant ministry policies when making its decisions.
Each year the chair of the Board proposes a budget for the following year. Because the Board reports to the
minister, the minister is responsible for approving the Board’s budget. The chair hires the Board staff, but
the practice is that a human resources officer from the Ministry is involved in the interviews and takes part
in making the decisions. The Ministry establishes the salary range for each Board staff member, but the
chair decides what salary to offer within that range and whether employees receive a raise each year. The
chair cannot terminate the employment of a Board staff member without approval from the Ministry.
It is the government’s policy that each minister enter into a memorandum of understanding (MOU) with the
chair of the Board, governing the relationship between the Board and the Ministry. Each time the minister
or the chair changes, a new MOU is to be signed by both parties. The current chair was appointed one year
ago, but the minister has not signed a new MOU.
Although the Act says that the premier appoints the members, in practice this is done on the
recommendation of the minister. The MOU between the minister and the previous Board chair provides
that the minister will consult with the chair before deciding which members to recommend for
appointment.
The members are appointed “at pleasure” for a fixed term of two years. Traditionally, appointment at pleasure
means that an employee may be terminated without any notice. The MOU provides that the minister will seek
the advice of the chair when deciding whether to reappoint members at the end of their term. However, there
is a government policy that members may not be reappointed for more than one two-year term, regardless of
the quality of their performance. About 60 percent of the members are appointed on a part-time basis. One of
them is a former investigator of the Ministry.
The salary levels for the chair and members are established by the government.
The current chair was once the director of the legal branch of the Ministry. He left the Ministry three
years ago. Before being appointed chair, he was in private practice as a lawyer for one year, then was the
director of the Policy Branch of the Ministry of Finance in the provincial government.

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1. Is there an institutional bias that would prevent the Board from hearing this case?

2. What key points would you use to argue that the Board has no jurisdiction to hear this case?

3. What key points would you use to argue that the Board has no institutional bias?

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ADMIN LAW CHECKLIST

STEP 1 – DOES ADMIN LAW APPLY?

 Is it a public body making a decision?

 Is this a procedural issue or a substantive issue?

STEP 2 – IS THERE A RIGHT TO APPEAL/RECONSIDERATION/REVIEW?

 Check the enabling statute– tends to oust common law - does it refer to appeal,
reconsideration, and judicial review?

o Exhaust all internal review/appeal mechanisms BEFORE proceeding to JR

 Check General Procedural Codes if applicable (i.e. JRPA)

 If YES…is it through internal mechanisms (reconsideration/appeal within the

tribunal) or external mechanisms (an appeal to the courts)?

o What is the scope of the review (example: on a question of law only)?

o Any Preconditions (time limits, final decisions only)?

o Is it federal or provincial (Statute may spell out which court)?

o Is the standard of review spelled out in the Statute?

o What are the available remedies? Are they limited? Can the reviewing
decision maker substitute their own decision?

STEP 3 – IF NO STATUTORY RIGHT TO APPEAL OR… IF RIGHT IS LIMITED - JR

 Courts have jurisdiction to review through JUDICIAL REVIEW (s.96 and Crevier) –
through an Application to Divisional Court.

 A party seeking to challenge ADM action/decision through JR should determine:

o Whether the decision maker (the tribunal) is a public body o Whether s/he
has standing to challenge the decision
o Which court s/he should apply to for judicial review
o Whether the application for JR is within the time limits
o Whether the party has exhausted all other adequate means of challenge
o Whether the remedies available address ‘success’
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STEP 4 – REMEDIES – WHAT ARE YOU SEEKING?

 Substantive Defects: writs, declaration, private remedies (money/damages)

 Procedural Defects: quashing the decision, Charter remedies

Remember that the court may still deny remedies based on discretionary grounds

STEP 5 – DISCRETION TO DENY THE APPLICATION FOR JUDICIAL REVIEW

o Availability of alternative remedies o Prematurity

o Mootness
o Delay
o Misconduct of applicant
o Waiver
o Balance of convenience
o Standing – i.e. public interest

Are you challenging procedural or substantive defects?

PROCEDURAL ISSUES - THE DUTY OF FAIRNESS

PROCEDURAL STEP 1 – DETERMINE WHETHER FAIRNESS IS REQUIRED

 The trigger/ threshold test – is a duty owed?

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 When a duty of fairness is not owed…exceptions / limitations

1. The duty does not apply to investigations or advisory processes – It applies to

decisions

2. The duty does not apply to legislative decisions/functions

 Includes policy decisions
 Includes subordinate legislation
 Cabinet and ministerial decision may be exempt
… BUT need to balance this exception with the question of whether
individual’s rights, interests/ privileges are at stake?

3. The duty does not apply to public office holders employed under contracts

4. The duty may be suspended or abridged in the event of an emergency

5. Interest under section 7 of the Charter that is purely economic is not enough

PROCEDURAL STEP 2 - IF FAIRNESS IS OWED WHAT IS THE CONTENT OF THE

DUTY – WHAT DOES “FAIR” LOOK LIKE?

 To determine the content of procedural fairness look at the SOURCES OF

PROCEDURAL FAIRNESS

• The enabling statute

• Generally, If there is an enabling statute then that is where you go to determine

the content of the duty

o Check any regulations or rules made under that statute

o Statute can oust what the common law would provide – but statutory
language must be very clear in order to do so
o Even clear language could be set aside a provision in a statute if it violates a
Charter right

• A general procedural statute/ special provincial level statutes

o Ontario - Statutory Power Procedure Act (SPPA)

• Common law – if the statute is silent or vague

o Where the enabling statute is NOT a complete procedural code or it is silent, or

only provides for a minimal procedure or expressly denies certain procedural safeguards,
the duty to act fairly may be prescribed by the common law

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Applying Baker - the 5 contextual considerations under the common law

1. The nature of the decision being made and process followed in making it
2. The nature of the statutory scheme and the terms of the statute pursuant to
which the body operates
3. The importance of the decision to the individual or individuals affected
4. The legitimate expectations of the person challenging the decision
5. The choices of procedure made by the agency itself

• The Constitution, the Charter and the Canadian Bill of Rights

o Charter section 7: cases involving life, liberty and security of the person must
be made in accordance with principles of fundamental justice (Singh’s 3 questions).

o Bill of Rights: federal actions involving life, liberty, security and enjoyment of
property entitled to due process; determinations concerning rights and obligations must be
made in accordance with principles of fundamental justice

• Legitimate expectation

o Procedural fairness may be imposed where otherwise would not have been

SPECIFIC CONTENT ISSUES:

 THE RIGHT OT BE HEARD

• Notice: timing, sufficient content and form, manner of service)

• Evidence - Disclosure (before hearing): not absolute and subject to eexceptions
(privilege, medical, national security, informants, commercially sensitive information)
• Evidence – Admissibility: tribunals not bound by law of evidence (unless statute
says otherwise)
• Timeliness and Delay in proceedings
• Oral hearings: not necessarily required but ask what’s at stake? (Credibility)
• Right to counsel: not absolute – is it a right to state funded counsel or just to be
represented? (Seriousness, complexity, capacity of self rep)
• Right to be present
• Right to call and cross examine evidence
• The duty to give reasons: required where decision is significant or where
statutory right of appeal and “other circumstances” as per Baker (open ended)

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 RIGHT TO AN UNBIASED DECISION MAKER

• Test: Reasonable Apprehension Test (Liberty)

• Individual

o Antagonism during the hearing

o Association between party and decision-maker
o Involvement of decision-maker in earlier stage of process
o Prejudgment by decision-maker
o Monetary/other personal interest

• Institutional (Lippe)

o Closeness between an agency/tribunal and government

o Sub-delegation
o Intra agency Consultation
o Consistent decisions and guidelines
o Multiple and overlapping functions: counsel, of decision-maker

• Lack of Independence (Valente, Matsqui)

o Security of tenure - basis for removal

o Financial security - process and fixed rate
o Administrative control - assignment of cases and resources

PROCEDURAL STEP 3 – IF THERE IS A PROCEDURAL BREACH – WHAT IS

THE REMEDY?

Procedural Breach = CORRECTNESS – no standard of review analysis

1. The remedy is to quash/void the original decision

• Based on Cardinal v. Kent: Right to a fair hearing is an “independent, unqualified

right” the breach of which always renders a decision invalid – regardless of result being
right

2. The remedy may be a Charter remedy (if available)

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SUBSTANTIVE – DECISION/REASONS & THE STANDARD OF REVIEW

SUBSTANTIVE STEP 1 – CATEGORIZE THE NATURE OF THE ISSUE

This question raises an error of ___________? (fact, law, jurisdiction, etc..)

SUBSTANTIVE STEP 2 - CASE LAW RE: STANDARD OF REVIEW

Determine whether existing case law applies to determine what standard has been
applied to that issue/question in the past

Categories that generally attract Categories that generally attract

reasonableness correctness

Questions of fact Constitutional questions, including those

related to the division of powers

Questions of mixed fact and law Issues of general law that fall outside the
administrative decision-maker’s area of
expertise

Exercise of discretion Questions directly related to the administrative

decision-maker’s jurisdiction and the scope of
his or her powers or authority

Policy questions

An administrative decision-maker interpreting its

own enabling statute as it relates to its function

Issues of general law where the decision maker

has developed a particular expertise

SUBSTANTIVE STEP 3 – IF NO CLEAR JURISPRUDENCE – STANDARD OF REVIEW

ANALYSIS

 REASONABLENESS or CORRECTNESS?

• “default is reasonableness”

o Use Dunsmuir and the standard of review analysis to determine applicable standard.

o Also, identify any relevant post Dunsmuir approaches like proportionality – note the
recent decisions.
31
 NCA Prep - Sample Scenarios Booklet - 2014

 Consider the 4 contextual factors in the standard of review analysis

(1) Privative clause - Strong or weak? Existence of privative clause usually leads to
reasonableness standard. Statutory right of appeal can lead to correctness and
reasonableness
(2) Expertise – of the decision maker and the tribunal as a whole

(3) Purpose of the act as a whole and the provision in particular, and

(4) Nature of the problem: question of law, question of fact, question of mixed fact and
law, policy questions, discretionary questions
o May not need to go thru all 4 factors

SUBSTANTIVE STEP 4 - LOOK AT THE DECISION

 Is the decision reasonable or correct? Apply the 2 part test (reasons and outcome)

(1) Reasons

• Do they justify the decision by using transparency, intelligibility, and justifiability of

the process of reasoning/decision making
• that all audiences—counsel, affected persons and especially the losing party,
reviewing courts, other agencies, and the general public—can understand, and

(2) Outcome

• Do they illustrate that the outcome is also reasonable when, as is often the case in
administrative decision-making, more than one reasonable result is possible.

SUBSTANTIVE STEP 5 – REMEDIES

Prerogative Writs
o Certiorari (to quash or set aside a decision) o Prohibition (to order a tribunal not to
proceed)
o Mandamus (to order the performance of a public duty)
o Declaration
o Habeas corpus and Quo warranto?

 Private Law Remedies

o Money/damages
o Monetary damages for Charter breaches
o The special tort of misfeasance in (or abuse of) public office
32
 NCA Prep - Sample Scenarios Booklet - 2014

Notes:

Liz Nastasi & Deborah Pressman

NCA Prep - Sample Scenarios Booklet - 2014

33
Sample Practice Exam
 NATIONAL COMMITTEE ON ACCREDITATION

SAMPLE EXAMINATION

ADMINISTRATIVE LAW

© 2009. Used with permission by the Federation of Law Societies of Canada.

For personal educational purposes only. This document may not be reproduced or distributed in whole
or in part without the prior written permission of the Federation of Law Societies of Canada.

© 2009. Utilisé avec permission par la Fédération des ordres professionnels de juristes du
Canada. Aux fins de formation personnelle seulement. Ce document ne peut être reproduit ou
distribué en totalité ou en partie sans la permission écrite préalable de la Fédération des ordres
professionnels de juristes du Canada.
 2

Question 1 (25%)
In 1995, Martha Muffin commenced work as a part-time employee with Scones and
Cakes Ltd., a bakery operating in Fredericton, New Brunswick, working three days a
week. In 1998, the employer made her an offer of full-time employment and she
accepted. In March of 2006, because of a downturn in business, the employer was forced
to lay off 25% of its staff and Martha was one of those given a layoff notice.
The employment relationship between the employer and its full-time employees is
regulated by a collective agreement entered into under the provisions of the New
Brunswick Labour Relations Act (“the Act”). Under that collective agreement, it
is provided:

136. In any lay off of employees, the employer will observe strictly the principle of
seniority.
That means that any lay off will be on the basis that those hired most recently will go
before those with longer service.

When she learns of her lay off, Martha is dismayed to also discover that Ralph Biscuit, who
started work with the employer in 1997, has not been laid off. When she makes inquiries of
the personnel manager of the employer, Martha is told that she has less seniority than Ralph
because he started work initially as a full -time employee and she only became a full-time
employee in 1998. It was only at that point that she became covered by the collective
agreement, its terms explicitly excluding part-time employees.

Martha then took her case to her union representative and the representative filed a
grievance on her behalf arguing that the wording of clause 136 made it clear that, for the
purposes of seniority, the date that mattered was the date of initial hiring (whether as a
part or full-time employee) and not the date on which the employee became otherwise
covered by the collective agreement. The employer rejected this grievance and the
Union took the matter to arbitration where it was equally unsuccessful. The arbitrator
held that the term “employees” in clause 136 meant “employees covered by the
collective agreement” and that the principle of seniority applied on the basis of the
period during which the employee in question was covered by the collective agreement
i.e. had been a full-time employee.

The Act provides that every collective agreement shall make provision for “final and
binding” arbitration of workplace disputes, and clause 147 of the collective agreement
provides that any award made by an arbitrator on a grievance is “final and binding on the
parties”. The arbitrator was appointed from a list of arbitrators agreed to by the parties, a
list that operated on a rotational basis.
 3

The Union then commenced an application for judicial review in the New Brunswick
Court of Queen’s Bench. It asserted that the arbitrator had interpreted the collective
agreement incorrectly and that the Court should quash the award. In response, the Union
argued that the Court had no basis for intervening in the arbitrator’s interpretation of the
collective agreement, an interpretation that was final and binding. Write the judgment of
the Court dealing with the application for judicial review.

Question 2 (25%)

Acting under the Federal Public Works Act, the Governor in Council has promulgated a
regulation establishing a fair wages policy for employers who are successful in bids for
Government of Canada work. Under this regulation, it is provided that any employer
who has twice violated the fair wages policy may be disqualified from bidding for
Government of Canada work for a period of two years.

The regulation creates a complaint mechanism whereby employees can lodge a complaint
with the Director of the Fair Wages Policy Office that the employer has not been paying a
fair wage as provided for in the regulation. The regulation goes on to instruct the Director
to investigate any complaint and to report her or his findings to the Minister of Public
Works with any recommendation as to sanction. In turn, the Minister is authorized to
issue a disqualification notice in the case of a second violation of the Policy.

In March of 2006, the Director received two separate complaints of a violation of the Fair
Wage Policy against Magic Construction Ltd., which at that time was engaged in
building two ice hockey arenas for the Department of National Defence. On each of those
projects, its employees were receiving the same wages.

The Director asked the company for its wages records for each of those projects and, on
the basis of those records, concluded that the company in each instance had been paying
less than the wages required by the fair wages policy. The Director then made a report
to the Minister on each of the complaints, and recommended that the Minister issue a
disqualification order on the basis of two violations. The Director sent a copy of this
report to Magic Construction Ltd.

At this juncture, the President of Magic Construction Ltd. approaches the senior partner
of the law firm at which you are articling. She tells the senior partner that the company
now realises that it had indeed been violating the fair wages policy on each of its projects.
However, the Director had never given the company a chance to explain its actions and,
more particularly, had not alerted it to the fact that its ability to bid on government work
was in jeopardy. The President went on to assert that, if given the opportunity, she would
have urged the Director that disqualification for two separate violations was only
triggered in the case of a further violation after a finding of an initial violation and not in
the case of contemporaneous violations resulting from the same company wages scale.
 4

The President also learns that the spouse of one of the complaining employees is one
of six staff persons in the office of the Minister of Public Works.

Following the consultation with the President of Magic Construction Ltd., the senior
partner asks you to provide him with a memorandum on whether there is any basis for
judicial review at this stage on the process. Prepare that memorandum.

Question 3 (25%)

Under the Alberta Dentistry Act, the Society of Dentists regulates the conduct of the
profession including the discipline of its members. Complaints of professional
misconduct are dealt with by the Dentists Discipline Board, which is comprised of a
Chair, and two other members, with provision also made for the Board to be assisted by a
lawyer at any hearing. Under the Act, the Chair and the members are required to be
dentists and are appointed by the Society’s Board of Directors. It is also provided that the
Chair is responsible for reviewing complaints and determining whether there is any basis
for an investigation by the Society’s investigative staff. Following an investigation, the
staff determine whether a hearing is justified and, if so, send it on to the Society’s
“prosecutor” for the formulation of charges and the setting up of a hearing. Under the
procedural rules authorized by the Act, there is no provision with respect to whether
dentists are entitled to be represented at any hearing. However, the rules provide the
Discipline Board with a discretion in matters not covered by the procedural rules “to
proceed in a manner which ensures an efficient, fair hearing”. Sanctions for professional
misconduct range from reprimand, through suspension, to expulsion and there is also
provision for a fine of up to $250,000.

In January of 2006, the Chair of the Discipline Board sends a complaint of professional
misconduct against Gerald DeMuth to the Society’s investigators and, following an
investigation, the matter is sent on to the Society’s prosecutor to set up a hearing. At this
point, as provided for in the Rules, the Board stages a prehearing conference. At that
conference, DeMuth is represented by Harvey Kyoto, a former dentist who has, without
protest from the Board, acted for a number of years as an advocate for dentists charged
with professional misconduct, including DeMuth himself on one prior occasion. At the
prehearing conference, however, the Chair tells DeMuth and Kyoto that henceforth it will
allow only lawyers to act as counsel at hearings. Kyoto protests loudly but to no avail. He
also alerts the Board to the effect that, on behalf of DeMuth, he wants to argue that the
provisions of the Act that authorize the Chair to both direct an investigation and preside
at any subsequent hearing are contrary to sections 7 and 11(d) of the Canadian Charter of
Rights and Freedoms. The Chair, with the consent of the other two members of the
Board, tells Kyoto that neither he nor any lawyer appearing for DeMuth can make that
argument as the Board does not have jurisdiction to entertain Charter challenges.
 5

At the conclusion of the prehearing conference, DeMuth and Kyoto approach the
senior partner of the law firm at which you are articling and seek his advice on whether
they have any basis for challenging by way of judicial review the Board’s refusal to
allow Kyoto to represent DeMuth and its ruling that it has no jurisdiction to entertain
Charter challenges. Thereafter, the senior partner asks you to provide him with a
memorandum on those two issues. Prepare that memorandum.

Question 4 (25%)

Once you have completed the memorandum called for in Question 3, the senior partner
asks for a follow-up memorandum on whether the Charter (and sections 7 and 11(d))
even apply to the proceedings before the Board and, if the Charter and sections 7 and/or
11(d) are engaged, whether the provisions of the Act with respect to the roles of the Chair
constitute a violation. Provide that memorandum.
 Osgoode NCA Exam Prep Course
Canadian Administrative Law
June – July, 2014

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