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Table of Contents TOC \o "1-3" \h \z \u Introduction PAGEREF _Toc385998362 \h 1PART I: Constitutional Considerations PAGEREF _Toc385998363 \h 3A. Delegation PAGEREF _Toc385998364 \h 3Division of Powers PAGEREF _Toc385998365 \h 3B. Delegation not Abdication PAGEREF _Toc385998366 \h 3C. Section 96 PAGEREF _Toc385998367 \h 4D. Charter Application PAGEREF _Toc385998368 \h 6Section 32 PAGEREF _Toc385998369 \h 6PART II: Legislative and Executive Control of the Administrative Process PAGEREF _Toc385998370 \h 8Subordinate Legislation PAGEREF _Toc385998371 \h 8A. Ombudsman PAGEREF _Toc385998372 \h 9PART III: Judicial Control of the Administrative Process Substantive Grounds for Judicial Review PAGEREF _Toc385998373 \h 10Chapter 1: General PAGEREF _Toc385998374 \h 10Chapter 2: Improper Constitution of Tribunal PAGEREF _Toc385998375 \h 11Chapter 3: Improper Subdelegation PAGEREF _Toc385998376 \h 12Chapter 4: Failure to Comply with Mandatory Procedural Requirements PAGEREF _Toc385998377 \h 13Chapter 5: Review for Errors of Law and Fact/Unreasonable Decisions PAGEREF _Toc385998378 \h 13A. Introduction PAGEREF _Toc385998379 \h 13B. Jurisdictional Questions of Law and Fact PAGEREF _Toc385998380 \h 13C. Review for Intra-Jurisdictional Errors of Law PAGEREF _Toc385998381 \h 14D. Statutory Attempts to Exclude Review Privative Clauses PAGEREF _Toc385998382 \h 15E. Standards of Review PAGEREF _Toc385998383 \h 17Chapter 6: Abuse of Discretion PAGEREF _Toc385998384 \h 23A. Control over the Exercise of Discretion PAGEREF _Toc385998385 \h 23B. Use of Power for an Unauthorized Purpose PAGEREF _Toc385998386 \h 23C. Irrelevant Considerations PAGEREF _Toc385998387 \h 24D. Bad Faith PAGEREF _Toc385998388 \h 25E. Unreasonableness PAGEREF _Toc385998389 \h 26F. Discrimination/Vagueness/Uncertainty PAGEREF _Toc385998390 \h 30G. Retroactivity PAGEREF _Toc385998391 \h 32H. Fettering Discretion by General Policy Formulation PAGEREF _Toc385998392 \h 32I. Fettering Discretion by Contract PAGEREF _Toc385998393 \h 33J. Fettering Discretion by Applying Another’s Decision PAGEREF _Toc385998394 \h 34PART IV: Judicial Control of Administrative Process – Procedural Grounds PAGEREF _Toc385998395 \h 35Chapter 1: Natural Justice/Duty of Fairness/Fundamental Justice PAGEREF _Toc385998396 \h 35Introduction PAGEREF _Toc385998397 \h 35A. Historical Development PAGEREF _Toc385998398 \h 35B. Duty to be Fair PAGEREF _Toc385998399 \h 36C. Applicability of Fair Process to Legislative and Other Policy Decisions PAGEREF _Toc385998400 \h 39D. Legitimate Expectations PAGEREF _Toc385998401 \h 40E. Section 7 of the Charter – Fundamental Justice PAGEREF _Toc385998402 \h 41F. General Procedural Requirements PAGEREF _Toc385998403 \h 42Access to Information by Tribunals PAGEREF _Toc385998404 \h 43Reasons for Decisions PAGEREF _Toc385998405 \h 43G. Audi Alteram Partem PAGEREF _Toc385998406 \h 43Chapter 2: Rules Against Interest & Bias PAGEREF _Toc385998407 \h 60A. Decision-Maker Reviewing Own Decision PAGEREF _Toc385998408 \h 60B. The Institutional Bias Exception PAGEREF _Toc385998409 \h 62C. Interested Party Selecting Decision-Maker/Independence PAGEREF _Toc385998410 \h 63D. Pecuniary Interest PAGEREF _Toc385998411 \h 65E. Existing or Previous Association Between Decision-Maker and Interested Party PAGEREF _Toc385998412 \h 65F. Bias Through Investigators or Legal or Other Advisor PAGEREF _Toc385998413 \h 66G. Prejudgment PAGEREF _Toc385998414 \h 67H. Personal Attitudinal Bias/Personal Hostility PAGEREF _Toc385998415 \h 68Chapter 3: Remedying Defects on Rehearing PAGEREF _Toc385998416 \h 69PART V: Remedies for Illegal Action PAGEREF _Toc385998417 \h 70Chapter 1: Charter Remedies by Administrative Tribunals PAGEREF _Toc385998418 \h 71Chapter 2: Remedies Against Provincial Government Agencies PAGEREF _Toc385998419 \h 74A. Statutory Appeals PAGEREF _Toc385998420 \h 74B. Statutory Review PAGEREF _Toc385998421 \h 75C. Prerogative Remedies – Generally PAGEREF _Toc385998422 \h 76D. Availability of Judicial Review PAGEREF _Toc385998423 \h 77Chapter 3: Remedies Against Federal Government Agencies PAGEREF _Toc385998424 \h 78Chapter 4: Nature of Prerogative Remedies PAGEREF _Toc385998425 \h 81A. Certiorari and Prohibition PAGEREF _Toc385998426 \h 81B. Quo Warranto PAGEREF _Toc385998427 \h 81C. Habeas Corpus PAGEREF _Toc385998428 \h 81D. Mandamus PAGEREF _Toc385998429 \h 82Chapter 5: Use of Private Law Remedies in Administrative Law PAGEREF _Toc385998430 \h 85A. Declaratory Judgments PAGEREF _Toc385998431 \h 85B. Injunctions PAGEREF _Toc385998432 \h 87C. Damages PAGEREF _Toc385998433 \h 91Chapter 6: Limitations on Remedies PAGEREF _Toc385998434 \h 96A. Locus Standi PAGEREF _Toc385998435 \h 96B. Judicial Discretion PAGEREF _Toc385998436 \h 99IntroductionWhat is admin law? Control of admin government power by delegates of parliament/legislatureLimit gov power to ensure individual libertyGreater gov accountability and increased public participation in gov decision makingIf limit individual liberty, must be authorized by law: ROLAdmin law deals with two primary matters: 1) legal principles (ROL) which serve as limits or controls on exercise of public power and 2) remedies used to enforce these limitsAdministrative vs Constitutional LawBoth on legal control of public powerConstitutional LawAdministrative LawFundamental rules used determine which public institutions have authority to make laws for governance of societyAbout delegated power; Legal control of acts and decisions of public authorities to whom power granted pursuant to apparently valid laws enacted in accordance with principles of constitutionConsists chiefly of legal rules and principles thought of as supreme but can consist of traditions and conventions which do not have status of lawA finding that enabling legislation uncon will deprive pub auth of legal basis on which to justify actionsNo protect propertyGives some control when property deal with rather than libertyBroader because can extend to delegates who are more domestic than public bodiesWho exercises power in Canadian society? Ministers of the Crown (Lieutenant Governor in Council (Prov), Governor General (Fed), Federal and provincial cabinets), Crown corporations (Air Canada, Canada Post, Liquor boards), Government Departments, Civil Service, Public officers (gets direct power by legislation), Boards, Agencies, Commissions, Directories, BureausNO MASTER PLAN; created for perceived needs of moment; HOWEVER, structure influenced by:Aces in their places: Central government vs local governmentsActivities of modern governments have compelled allocation of public power beyond central departments of state at fed and prov levelScheme Efficiency: Increasing involvement of gov in large reg or social welfare schemes creates need for efficient and efficient means of adjudicationParliamentary Sovereignty: ability to make law on anything you want, you are sovereign; federal and provincial each sovereign within their fields; accountable to electors/reflect the will of the people; court’s role is ensure will of parliament carried out, but also determine what will of parliament is; courts have some power, but really subordinate power; delegates only have power that is granted; legislation written more broadly raises power of delegatesMunicipalities are DELEGATESNot a sovereign level of governmentCreation of and empowered by provincial legislatures, can destroy them if so wishForm of government in broadest sense of term that is most immediately in contact with a broad segment of population, but not level of government on the same level as parliament or legislatureOnly have what they are givenNot use Courts becauseThe usual: Formal, cumbersome, lengthy and expensive procedures would be overwhelmedDiff admin schemes require diff approaches to decision making, courts not sufficiently flexibleSpecial expertise lacking Government bodies will be empowered to exercise any number of functions:Adjudication: decision making – find facts, interpret facts, determine law, apply to facts, decideCourtsAdministrative TribunalsTwo partiesCan be polycentric (more than two parties)Bound by precedentCan be inconsistent because not bound by precedent more discretion when interpretingRule-making: making of subordinate legislation to reflect policy choices necessary to effective administration of a schemeSovereign GovernmentsAdministrative Tribunals (Delegates)Primary legislation are done publiclySubordinate legislation (ex: orders in council, regulations); usually done out of public eye; has legal effectSubordinate legislation like by-laws (in municipalities, which are not sovereign) and ordinances (delegated legislation from territories); has legal effectPolicy-guidelines and pronouncements: developed by admin bodies to show how make decisions, but not have power of law, so can ignore a policy guideline and not be sanctioned for it. Still effective with public; way of letting people know how best interact with that bodyPolicy making: making policy choices maybe reflected in adjudicative decisions, subordinate leg or policy statements issued to assist in admin of a scheme making policies based on the decisions and rules you make because policy guides your decisions and rulesEnforcement: action taken to compel compliance with adj or policy decisionsResearch: identification and study of problems and issues with aspect of gov admin; assist ongoing regulation of statutory schemesInvestigation: inquiry into existence of certain facts associated with resolution of a dispute; some tribunals can do this; can be primary or ancillary functionProsecution: proceedings against those thought to contravene legal rules governing operation of particular governmental schemeAdvising: giving information/advice to those affected by particular gov schemeRule of Law: Supremacy of regular law; arbitrary law must be controlled to protect the individual; all executive authority must be authorized by law; Every person subject to ordinary law of land; equality under the lawSubstantive standards required to be lawJudicial Review: assertion of inherent supervisory jurisdiction by a superior court (s 96) of its authority over inferior courts and tribunals (aka statutory delegates); solely to ensure that delegate acts lawfully within boundaries of defined jurisdiction.Limits: Court should not interfere with decisions of a delegate where found acting within limits of assigned jurisdiction; Jurisdictional control based on ultra vires doctrineInterpreted: Authority or jurisdiction is very flexible concept; defined by legislation, subject to interpretation by the courts; so may get more or less help from parliament from legislature/parliament which can be more or less specificDelegated: While courts there to ensure legality of conduct, must also be cognisant of fact that decision not given to the courts to make. Parliament or legislature for whatever failings, did delegate to another body to decideCourt procedures are generalists, expensive and slowSo legislators have decided to use other decision-makersJR concerned with LEGALITY or VALIDITY of admin action NOT MERITS of delegate’s decision or actionCONTRAST WITH APPEALStatutory jurisdiction often directed toward a reconsideration of the merits of the actionClassic tension: in what matter and to what degree should legal control by courts interfere with effective and efficient operation of the governmentResolution of tension: marked by complacency on part of courts and then periods of when courts when very aggressive That is known as judicial activism where politicians say courts gone too far, overly activeJudicial control of correctness and reasonableness.Certiorari (cert.): demand for information from some other administrative authority. KB, historically, would look through information and look for technical errors of law.PART I: Constitutional ConsiderationsA. DelegationDivision of PowersHodge v The Queen (1883) 9 App Cas 117 (PC) Has liquor licence; playing pool while drinking; should not gamble while drinking*RATIO: legislature sovereign; sovereign parliament within assigned powers, may delegate judicial legislative and administrative functions to a body of its own creation (not considered a sub-delegation); not abdication if can pull authority back through legislation (bright line test). Decision: leg of ON acted within powers conferred so no conflict with powers of Dominion Parliament B. Delegation not AbdicationIn Re Gray [1918] 57 SCR 150*RATIO: parliament cannot abdicate its functions, but within reasonable limits it can delegate its powers to the executive government. Argument: Abdication; basically created a legislative power in the governor-in-council (not addressed by the court, brushed over) – not for the courts to get in the way of patriotism to protect individual rights (demonstrating significant subordination by the courts). Again, can’t abdicate power b/c can take backDecision: Governor-in-Council can make regulation because POGG engaged; delegation authorizedInitiative and Referendum Act – legislature gave electorate power to repeal/amend legislation on its own initiative. Would have popular form of government circumventing government, could use referendum.*RATIO: radical, serious challenge to powers of government; said abdication, so impermissibleArgument: legislation affected office of lieutenant governor so unconstitutional and suggested it was abdication of legislative’s power because created body that had same legislative body that it had – you’d think the answer would be cannot abdicate, but that is not what was foundCredit Foncier – legislation dealing with some economic problems confronting Albertans; lieutenant governor-in-council given power in Act to exclude from operation of act debts of any kind. Then gave provincial cabinet power to substantially reduce scope of act*RATIO: impermissible abdication of power, too broad, not simply ancillary to purposes of legislation. Argument: impermissible with office or lieutenant gov because made them legislative body equal to legislature. Also suggested abdication of power because lieutenant gov-in-council could exclude all debts thereby nullifying this legislationBut the last two decisions are not in accordance with Hodge or In Re Grey; courts have somehow held prov legislatures at different standardInterdelegation Principles – not direct but can delegate to a body of the other sovereignFed parliament cannot delegate powers to a prov leg and vice versa under Constitution ActBUT courts have said fed can delegate powers to a prov body. Prov leg can delegate to a fed bodyCan do that because the body is viewed as a delegateEx: Criminal Code, prov court judges considered delegates of fed parliament for enforcing lawC. Section 9696. The Governor General (gov-in-council; federal cabinet) shall appoint the Judges of the Superior, District, and County Courts (dying, amalgamated into provincial courts) in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.PROBLEM: Superior courts created by province under s 92(14) wrt its administration of justice. S 96 has to do with delegation of judicial type powers. If s 96 requires gov-in-council to appoint all persons exercising judicial-type powers, what happens to provincial schemes involving some adjudication? Would the feds need to appoint them all?SOLUTION: While s 96 has a purpose, it’s not designed to thwart effort of provinces to establish schemes involving judicial type problems to appoint people. Trend towards limiting effect of s 96 while still preserving core of s 96 courts. There’s something we want to protect but whole host of other adjudicative powers that we don’t mind being exercised by provincial as delegates. Remember s 96 has not disappeared. On rare occasion, might be engaged.Reference Re Residential Tenancies Act (ON) [1982] 1 SCR 714 – First oneAttempt to take from courts historic powers to deal with eviction; see if offend s 96*RATIO: Three-stage testHistorical Power: Does the power or jurisdiction broadly conform to the power or jurisdiction exercised by superior, district or county courts at the time of confederation in 1867? Is it analogous/identical to that power? Yes. If no, then done. Requires you to look at powers in 1867 and powers in modern day. (The court said the only tribunals which could make ejectment orders were QB and other courts, so answer to first question is yes).Function in their institutional setting: Is the function within its institutional setting different when viewed in that setting? In particular, can the function still be considered to be a “judicial” function? (Impugned powers remain judicial powers because lis between parties).It is subject matter rather than the apparatus of adjudication that is determinativeIe, the question of whether any particular function is “judicial” is not to be determined simply on basis of procedural trappingsPrimary issue is nature of the question which the tribunal is called upon to decideEx: where tribunal faced with a private dispute between parties and called upon to adjudicate throughout the application of a recognized body of rules in a manner consistent with fairness and impartiality, then, normally, acting in a “judicial capacity”Macro-analysis: What is the tribunals’ function as a whole in order to appraise the impugned function in its entire institutional context? What is its position in the entire legislative scheme? Are the powers merely subsidiary or ancillary to legislative judicial scheme? (Central function of Commission is of resolving disputes, in final resort by judicial form of hearing between landlords and tenants).It’s not the primary function. Has some adjudicative powers, but just part and parcel of a much larger scheme that may engage all sorts of other functions. Matter of emphasis, where the primary role of tribunal lies. He says these are the core powers. This is what this board does, they are not ancillary, its primary function. On that basis, legislation offends s 96 and must be struck down.Arguments for Residential Tenancy Commission:Demands of new things needed to be implemented to rectify imbalance between landlords and tenants would clog already overburdened court systemRegular court system too formal for resolution of landlord and tenant disputesConvenient method of consolidating functions previously performed by different organizations; could offer wider range of remedies to individuals than regular court systemDecision: Legislature cannot make the Residential Tenancy CommissionReference Re Amendments to the Residential Tenancies Act (NS)[1996] 1 SCR 186NS attempt to institute a further structure, SCC took opportunity to further define three-stage test*RATIO: s 96 should not be used to thwart or unduly restrict the power of provincesExpand inquiry to include a number of other questions:Characterization: In the last Tenancies case, jurisdiction not defined in terms of subject matter of dispute but instead narrowly characterized as jurisdiction over remedies of compliance and eviction. That limits to remedies rather than subject matter of legislationNovel Jurisdiction: If that area had been around in 1867, would it have been given to the courts to control? There weren’t 40+ towers of residence jammed into less than optimal living conditions back then. It’s a new interest. Now we have state creating a code in setting up residential tenancies so different from historical powers. Trying to regulate relationship on terms that exist outside the contract. Expanded test 1 to include novel jurisdiction approach.Is the legislation an attempt to respond to a new societal interest and approach regarding the subject matter of the legislation? – concept of a residential tenancy is largely a phenomenon of modern and urban society.Is the legislation based on principles of law that make it distinct from similar legislation? – Carved out a distinct branch of landlord-tenant law and developed a complete code to govern the residential tenancy relationship. In sharp contrast to that which existed at Confederation.Is there an identifiable social policy that is different from the policy goals of analogous legislation? – Broad and distinct social policy goals of legislature can be said to be creation of a comprehensive regulatory scheme to deal with residential tenancies inexpensively and expeditiously.Protecting Against the Erosion of Section 96 Jurisdiction: Does this significantly take away from historic jurisdiction of s 96 court? No. Not part of “core” jurisdiction which s 96 jurisprudence protects. S 96 “core” jurisdiction is very narrow one which includes only critically important jurisdictions which are essential to existence of a superior court of inherent jurisdiction and preservation of its foundational role within our legal system. Adjusted second stage of the test. Partly, highly-paid judges not want to spend time dealing with tenancy issues. These are kinds of matters that require some sort of efficiency. If it was 1867, likely would not have put this power with a s 96 court, so does not affect their core jurisdiction. S 96 also limits federal legislation because superior courts are still a specific body and even though federal government delegates, they are their own body. Goes to preserving independence and core jurisdiction of superior courts.Decision: Scheme is constitutional.D. Charter ApplicationKey Provisions: 1, 2, 7, 15, 24, 32 Much-debated issue is if tribunals can rule on Charter challenges: some say can’t have all these different interpretations but SCC said there is much to be said for allowing administrative tribunals to examine even their own legislations on constitutional grounds and make rulings on that ground, and bring expertise to bear (more informed than courts).Section 3232. (1) This Charter applies(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.McKinney v University of Guelph [1990] 3 SCR 229Whether s 15 applied to university so as to render invalid requirement that professors retire at age 65.*RATIO: Several criteria relevant in determining whether body is government for Charter purposes:Is the body incorporated under legislation? – created by governmentIs it subject to judicial review under administrative law principles? – Yes Does the body perform important public services?Is it subject to government control and regulation? – court focussed on degree of independence in decision-making; have BoGs, GFCs, deans, etc empowered to make certain kinds of decisions an d they are made free of government control or directionIs it largely financed by government? – Yes Enumerated tests:Control test: does government have control over it?Government function test: is the function one that has historically been carried out by government?Government entity test: whether the entity acts in pursuance of statutory authority in pursuit of governmental purpose in the public interestDecision: University not “government” for purposes of the Charter.Slaight Communications v Davidson(1989) 59 DLR (4th) 416Allegation that a decision of a labour arbitrator acting pursuant to Canada Labour Code had offended the freedom of speech provision of the Charter in directing an employee to write a letter of reference containing certain prescribed statement. Parties were a business corporation and its employee, both private litigants, but Charter still found to apply.*RATIO: Adjudicator is a statutory creature; he is appointed pursuant to a legislative provision and derives all his powers from the statute. Impossible to interpret legislations conferring discretion as conferring a power to infringe the Charter, unless power expressly conferred or necessarily implied. Legislation conferring imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Therefore, an adjudicator exercising delegated powers does not have the power to make an order that would result in the infringement of Charter, and exceeds his jurisdiction if he does so.Decision: Arbitrator’s decision subject to the CharterRetail, Wholesale and Department Store Union v Dolphin Delivery Ltd[1986] 2 SCR 573Judge of provincial superior court issued an injunction against certain secondary picketing by the union. *RATIO: distinction between gov and an activity wholly or in part divorced from gov (purely private action); if court dealing with two parties and make a ruling, doesn’t make it subject to Charter, but if one or both parties rely on government, caught by the Charter. Fact that court made ruling not the avenue to engage Charter; injunction based on common law, not under statutory provision so court not gov hereDecision: Court was not “government” in the circumstancesIn Dolphin and Slaight, adjudicators were appointed under statutes. Yet, in one case, adjudicator found to be government and one not. Maybe court concerned more with opening floodgates and less with logic.Canadian Blood Services Policy not collect blood from men who have had sexual relations with men; s 15; Charter apply to CBS?*RATIO: CBS was a drug manufacturer, not government entity; private activity not government.Even though non-profit charitable society created and funded by prov governments who also appoint its directors and is regulated by Health CanadaPridgen v the University of CalgaryStudents sharing dislike of instructor on Facebook; disciplined and placed on probation*RATIO: McKinney too limited; certain purposes, university could be gov and in others, not. Follows more what was said in Eldridge where there were certain things done by a statutory entity (hospital) in pursuit of government scheme that attracted Charter, and other things that fell into private domain. Charter will apply where entity is government entity as result of nature of control over it or it could be government from nature of the act itself or quality of act. A non-government entity may still be subject to Charter when implementing a specific government policy or program. University was acting as agent of provincial government in providing accessible post-secondary education services to students in Alberta pursuant to PSL Act. Decision: University of Calgary is government for these purposes.Blencoe v British Columbia (Human Rights Commission)[2000] 2 SCR 307BC politician accused of sexual harassment; HR board proceedings, went to ON to get away, couldn’t find job, wanted to finish proceedings*RATIO: Can be part of gov even if you are independent in work of government. Statutory parties are bound by Charter even though independent of gov. Key is that its powers are authorized by statute; creates a sufficient nexus to say government for purpose of Charter. Also, commission carrying out important function of government or scheme of government. That it is exercising powers of adjudication not enough to take it out of reach of Charter (ex: Slaight Communication). The courts are not going to construe government narrowly. The mere fact that a body is independent of government is not determinative of the Charter’s application, nor is the fact that a statutory provision is not impugned.Decision: Charter applies, it is part of governmentEldridge v British Columbia (Attorney General)[1997] 3 SCR 624*RATIO: Charter also applies to action taken under statutory authority, which is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter.Decision: A hospital bound by Charter since it was implementing a specific government policy/programPART II: Legislative and Executive Control of the Administrative ProcessControls that parliament or legislature exerts over the executive, necessary for parliamentary sovereignty; whether delegates ought to be accountable to legislature.Subordinate LegislationToday, parliaments tend enact legislation general in broad terms, provides significant powers to a delegate with power to enact regulations. Sometimes call these regulations ancillary to primary legislative scheme.Regulations not written openly; presumed to know but no public aspect to it. Parliament not exercise control; scheme in place because parliament is inexpert body. Not much debate, no discussion with affected parties, etc. Little accountability.Ways to regulate:Informal process where regulators meet frequently with those regulated to discuss what those regulations will include. Problem is start of a sort of Stockholm syndrome; start identifying with industries with which they are meeting.Notice and comment procedure: here are the regulations, send to regulated industry and also send to public for comment. Although take longer, also potentially broaden scope of peopleAlso have informal use of notice and comment, more consultation with affected parties, but in some stat schemes in notice and comment legislationAffirmation and disallowance proceduresAffirmation: put before parliament, need motion affirming them. Puts it in public realmDisallowance procedure: put before parliament, effective on certain date unless motion disallowedScrutiny or watchdog committees: at federal and some provinces. See if it’s unusual exercise of power, intrudes upon individual liberties, doesn’t provide for certain powers, etc. Can be placed before leg/parl and will be a means of questioning itReview by internal counsel (AB and other prov gov and fed): group of highly skilled leg counsel Attorney General reviews: at the federal levelIn some jurisdictions, regulations have to be put before Lieutenant Governor in CouncilA. OmbudsmanOmbudsman Act creates the Ombudsman, creature of statute. Provincial.Definition: commissioner for investigations, holds office for fixed term of five years unless resign position or suspended/removed by Lieutenant Gov-in-Council on grounds of disability, neglect of duty, misconduct, or bankruptcy. Officer of legislature and serves as a means of asserting the legislature’s control over its delegates. Nature and extent of jurisdiction of Ombudsman turns upon interpretation of that and other statutes.Appointed: by Lieutenant Governor-in-Council on recommendation of Legislative AssemblySet up to be regular and smooth-running mechanism for feeding back the reactions of government’s disgruntled customers, after impartial assessment, and to correct whatever may have gone wrong. Means of investigating, matter of administration; office of the legislature. Reports to the legislature, effectively part of legislature for power over the executive. Functions and Powers of the Ombudsman:Investigate any decision, recommendation, or act done or omitted which relates to a “matter of administration” and affects any person or body of persons in their personal capacity.May make an investigation either on a complaint made by any person or on the Ombudsman’s own motion. But there are certain decisions Ombudsman not authorized to investigate any decision, recommendation, act or omission in respect of which there is a right of appeal or objection, or a right to apply for a review on the merits of the case; any decision, recommendation, act or omission of any person acting as counsel or solicitor for the Crown.Reports opinion to department, agency, or registrar concerned. Publicity is major sanction of Ombudsman against government bodies which are guilty of maladministration.Jurisdiction of the Ombudsman:Has jurisdiction to investigate the exercise of any power or the performance of any function by any government department or agency or by any officer, employee or member thereof.Courts define jurisdiction of ombudsman liberally: Any time you can define legislature as remedial in nature, courts will typically give it a broad a scope as possible any time have legislation that takes liberty or property away construed narrowly. Not have jurisdiction over all prov gov bodies; certain matters vary prov to prov, excluded from jurisExcluded CategoriesLegislative Assembly OfficeOffice of the Auditor GeneralOffice of the Chief Electoral OfficerOffice of the Ethics CommissionerOffice of the Information and Privacy CommissionOffice of OmbudsmanAB: chief of electorateAB: BoG of unisAB: hospital boards, regional health authoritiesMunicipalities and Government of Canada, or any of their servants or agentsOtherwise, deals with departments or agencies of government. Groups are required to work with Ombudsmen, not allowed stone walling although it does happen. Particular body good at bringing about informal access to information, but sometimes agencies not respond so positively.PART III: Judicial Control of the Administrative Process Substantive Grounds for Judicial ReviewChapter 1: GeneralJudicial ReviewAppealInherent common law jurisdiction of superior courtsDoes not exist at common law, only have appeal if prescribed by statuteExercise of inherent power/jurisdiction wrt s 96 courtCan appeal from anything to tribunal or court if in the statuteCannot deal with merits (but maybe sometimes); central focus is jurisdictionCan be question of law, fact, jurisdiction or meritsIf unqualified, must determine scope of appealConcerned with legality, back to ROL. Law must also meet certain norms or values. All legal action must meet these standard to be fair/respected. Ex: laws prospective, not retrospective, transparency in gov processes, decision must be intelligible, open processJurisdiction: Power or authority to act or decide. Ultra vires void ab initio, not voidable.ROL: all official/public/government action must be authorized by law and is constrained by law; the principle of legality.Role of Courts: institutional control on actions of the administration to ensure that the requirements of the Rule of Law are satisfied in the sense that the exercise of public power has been authorized by law and any arbitrary exercise of such powers has been constrained. In judicial review, courts protect sovereignty of Parliament, to ensure that its delegates stay within their jurisdiction when acting/deciding. But courts of law do not have sole authority over all questions of law because parliament/legislature can delegate legal and factual issues to other bodies than the courts of law.Anisminic Ltd v The Foreign Compensation Commission[1969] 2 AC 147 (HL)*RATIO: for courts to decide true construction of statute which defines area of a tribunals’ jurisdiction. Lack of jurisdiction arises from many ways like Absence of formalities which are conditions precedent to tribunal having jurisdiction to embark on an enquiry quorum, etc AND actual conditions (two types of things)Tribunal may make order that it has no jurisdiction to make not in enabling legislationWhile engaged on proper enquiry, tribunal may has jurisdiction but screws up or exceeds Depart from rules of natural justiceAsk itself the wrong questionsTake into account matters it was not directed to take into accountCourts’ jurisdiction over inferior tribunals is supervision, not review. The role of the courts is subordinate, not for us to question the merits of this decision. Then we would be usurping the separation of powers, doing something not supposed to be doing. To give the power to interference with merits would make them bodies of appeal outside of statute.If court asks itself the right questions, courts will not intervene merely because it has or may have come to the wrong answer, provided that this is an answer that lies within its jurisdiction.Once you have acquired jurisdiction, you can lose by: 1) acting in bad faith, 2) not accord the parties appropriate process entitled to, 3) acting unreasonably.If there is error of law by tribunal, court has jurisdiction. Anomalous because when presented with a clear error of law, that has nothing to do with jurisdiction. It is admitted they are acting within jurisdiction. Still going to intervene and correct this error of law.Jurisdictional Questions vs Intra-Jurisdictional QuestionsPreliminary and collateral vs merits: not provide analysis, merely descriptivePure theory of jurisdiction says there are only a few truly jurisdictional questions of law and factMost questions of law and fact are jurisdiction; tribunals’ exclusive jurisdiction very limited“Wrong Question” Test: if you got the wrong decision, you must have asked yourself the wrong question. You only have jurisdiction to ask right questions, so by asking wrong question, acted out of jurisdiction.Chapter 2: Improper Constitution of TribunalPart of early investigation is make sure people who made decision are in fact people who had the powerSome parameters to look at:Do some members meet statutory qualifications?Term to which appointed the appropriate term of office?Have they been appointed in accordance with statute?Did they fail to comply with a mandatory statutory step in the appointment process?Problems with quorum.Quorum: the set number of people who must be present to make a legal decision. Tribunal usually has power to determine its quorum (will say in legislation). Can be a majority, civil majority or less than maj. If board not have power to set quorum, depends on statute interpretation. A majority always constitutes a “quorum” of a deliberative body. Can say that members with particular qualifications must be present, and that is legally necessary.Chapter 3: Improper Subdelegation Subdelegation: Delegation from administrative body to another. Delegatus non potas delegare; the delegate cannot re-delegate. Not an iron clad rule, general rule of construction. Permitted in two cases:Where expressly permitted: see if it’s in the legislationWhere necessarily implied: having regard to the nature of the scheme, the kind of powers being exercised, clearly necessary to have implied power of subdelegation.Usually presume no sub-delegation in boards making decisions or judicial kinds of decisions. We want that body to make the decision, not a sub-delegate. Counsel can always argue it’s implied but big onus.Ex parte Brent[1955] OR 480 (CA)Love in Buffalo, she was not supposed to be in Canada; government ordered her detained and deported. *RATIO: All gov in council did in making regulation, was provide powers to special inquiry officers to make their decisions based on their assessment of factors. The judgement of gov in council replaced by special inquiry officers at every port in Canada. So when you gave power to them, it’s to delegate to them the power to make their own rules. Improper subdelegation. Gov in council was to set general standard, offer guidance to officers and they were to exercise that power and to exercise to reference to that power. They were not themselves supposed to become sources of regulation.Decision: Regulation is invalid and order of deportation based upon it is invalid. Can give some discretionary powers to another officer but these discretionary powers cannot be abdicated. So if scheme requires subdelegation, must be some reporting back/control to preserve the delegation and not to encourage too much subdelegation.Cook v Alberta (Minister of Environmental Protection)2001 ABCA 276Ministers can’t do everything themselves, long established rule that with ministers of the Crown, presumed that they can subdelgate their powers as the hierarchy of the department provides them with some measure of control. Applicant wants to establish a recreational property. Lands in question subject to forest management agreement. Asked the minister to withdraw lands from that agreement so they could be leased to applicants for recreational enterprise.*RATIO: Minister cannot delegate power to appeals committee, minister had to decide. Discretionary decision. Predicated on assessment of public interest in this setting. Must be office holder to do it, or deputy where permitted by legislation, but can’t just pass it off to someone without authorization.Decision: Minister’s power to withdraw land from Forest Management Agreement inherently discretionary, unlikely Legislature meant Appeal Committee to exercise Minister’s powers in this regard.Chapter 4: Failure to Comply with Mandatory Procedural Requirements Conditions that govern the correct acquisition of jurisdiction. An express procedural requirement in a statute may be mandatory or imperative in which case failure to comply will invalidate the purported exercise of powers. Such requirements are usually prefaced by the word “shall.” Use of the word “may” has been interpreted as being imperative even though generally regarded as permissive. No universal and definitive rule has yet been articulated for the construction of statutes in respect to whether a particular provision is mandatory, directory or merely permissive.Costello v City of Calgary[1983] 1 SCR 14Municipal counsel wished to expropriate property for highway development*RATIO: Before city council can expropriate, must comply with requirements; notice to give people the ability to complain in open court; even if no prejudice, technical breach (17 days rather than 21 days of notice) doesn’t matter. Expropriation measure takes away fundamental right, must follow the rules. Any case with individual liberty, have a good chance of making tribunals adhere to these requirements strictly.Decision: may means shall in this case.Robertson v Edmonton (City)[1990] 4 WWR 232In application to quash a bylaw, applicants argued that council’s failure to strictly comply with s 139 of Planning Act concerning content of newspaper notice, rendered bylaw ultra vires. Not something as serious as expropriation in Costello.*RATIO: If real prejudice, all likelihood held mandatory. If no real prejudice, then probably treated as mere technicality, not render decision ultra vires; don’t want rigid adherence to technicalities to end valid admin proceedings, but don’t want parties prejudiced by failure to comply strictly.Chapter 5: Review for Errors of Law and Fact/Unreasonable DecisionsA. IntroductionDistinction between intra-jurisdictional vs jurisdictional matters. Standard of review? Truly jurisdictional question to have more stringent standard and one within tribunal jurisdiction to be more deferential. Courts have had to balance respect for the intent of legislatures in creating and empowering statutory delegates with the core responsibility of the courts for the maintenance of the rule of law.Law became less formalistic and more contextual in recognition of diversity of administrative decision-makers and need to calibrate judicial review to better achieve balance between legislative intent and ROL.B. Jurisdictional Questions of Law and FactPreliminary fact: state of affairs must exist as a matter of objective fact before a power may be lawfully exercised. Jurisdictional control extend to issues of law and fact preliminary in nature; however, control also extends to interpretation and application of remedial provisions found in enabling legislation.Question of fact: involves primary facts on which evidence must be provided. Once those facts are established, the question of whether they satisfy a legal definition or requirement is a question of law. Any question with legal connotations is a question of law, although probably more correct to describe an issue with factual and legal elements, a question of mixed law and fact.A court on judicial review for an alleged error of law or fact must address several issues:Whether the alleged error is one of law or fact? Whether the particular question of law or fact was one that conditioned the authority of the tribunal (ie, a jurisdictional question) or one that was within the tribunals’ authority to determine (ie, intra-jurisdictional in nature)Find appropriate balance between two ideals: parliamentary supremacy and rule of law.Approaches to determine what can and cannot be reviewed:Preliminary/Collateral Questions Test: tribunal must decide prelim/collateral question correctly, correctness standard. Merits not subject to review, but this approach states a conclusion and not provide means of distinguishing between these matters.Jurisdictional Facts: There are certain factual issues which must be decided correctly before tribunal has jurisdiction to decide, but also just states a conclusion.All questions of law are jurisdictional in that they must be decided correctly by tribunal or courts will intervene on judicial review.“Pure” theory of jurisdiction is tribunal friendly view, holds that jurisdiction is determined at commencement of proceedings; only a few questions are truly jurisdictional in nature. Other side is “unlimited” theory of jurisdiction, giving tribunal little freedom of action. Almost every question of law is subject to review by courts, tribunal has small restricted area of exclusive jurisdiction.C. Review for Intra-Jurisdictional Errors of LawR v Northumberland Compensation Appeal Tribunal, ex parte Shaw[1951] EWCA Civ 1Tribunal had wrongly calculated applicant’s service when assessing his compensation for loss of office as clerk to Hospital board. No right of appeal against its decisions. AG had argued that certiorari would only lie to prevent a tribunal exceeding jurisdiction. Divisional Court disagreed.*RATIO: inherent jurisdiction to control inferior tribunals, not in appellate capacity, but supervisory. Control not only to ensure inferior tribunals keep within jurisdiction, but that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law. A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction. Expanded the common law definition of the record. The record: record of proceedings before the tribunal. Statute will either define outright what the record consists of, or at least give some indications. If not, Denning defines in common law: Record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.Alberta Rules of Court define broadly: a) the judgment, order or decision, as the case may be, and reasons therefore; b) the process commencing the proceedings; c) the evidence taken at the hearing and all exhibits filed; d) all other papers or documents touching the matter.Affidavit evidence can be used when the tribunal erred in law only if the error of law is jurisdictional in nature or only if certiorari is sought on the ground of want of jurisdiction such as breach of rules of natural justice or duty of fairness or in the case of bias or fraud on part of tribunal. so jurisdictional or had jurisdiction and lost it. That apart, affidavit evidence is not admissible in review for errors of law committed by a tribunal within its jurisdiction. Denning suggested that parties, by agreement, could supplement the record before the Court by affidavits disclosing the points of law that had been decided by the tribunal. The court could always quash for an error of law admitted in the face of the court or, if the court is satisfied that record before it is incomplete, order that record be completed to disclose error of law. Finally, court could characterize the error of law as jurisdictional in nature so as to permit proof of the error by affidavit.Decision: AG’s appeal failed, certiorari permitted.D. Statutory Attempts to Exclude Review Privative ClausesPrivative clauses are statutory limits on judicial review imposed by Parliament, or provincial legislatures with a view to preventing superior courts of law from reviewing decisions of statutory delegates.Courts have tended to interpret them narrowly and strictly to preserve their inherent right to review.FormsFinal and Binding Clause: Except as provided in this Act, every order, award, direction, decision, declaration, or ruling of the Board, the Arbitration Tribunal or an adjudicator is final and binding.Weakest, oldest; interpreted narrowly to mean that decision final and binding on parties and there is no appeal on the merits from the decision of the tribunal or board. Clause does not preclude judicial review of decision on grounds of ultra vires; courts interpreted clause as providing administrative decision with a “privative gloss” which means courts can only intervene when a tribunals’ decision is “unreasonable.”“No Certiorari” ClauseNo order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board, the Arbitration Tribunal or an adjudicator in any of its or his proceedings.Courts interpreted clause to preclude review of errors committed by tribunal within its jurisdiction; in effect, precluding review of only errors of law, within jurisdiction, revealed on the face of the record. Therefore, preclusive effect of provision rises and falls with whether tribunal has acted within its jurisdiction. The clause is ineffective in preventing review of errors made in relation to jurisdiction conferring issues and matters which have caused the tribunal to exceed its jurisdiction such as breaches of natural justice, abuses of discretion, and unreasonable legal and factual determinations. Exclusive Jurisdiction ClauseThe Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act to determine all question of fact or law that may arise in any matter before it and the action or decision of the Board thereon is final and conclusive for all purposes…The questions of law or fact listed in exclusive jurisdiction clause will therefore be intra-jurisdictional rather than jurisdictional in nature. Exclusive jurisdiction clause only puts matter within jurisdiction; review can still occur. it just says that everything is within jurisdiction, so courts can’t decide on jurisdiction because it’s deemed within jurisdiction. However, that means, they can decide on questions of law, which were precluded in the no cert clause, so when combined with a no certiorari clause, review of issues of law and fact within a tribunal’s exclusive jurisdiction will be precluded. Courts responded by holding that a patently unreasonable (now unreasonable) decision within a delegate’s jurisdiction is jurisdictional in nature and subject to judicial review notwithstanding the presence of an exclusive jurisdiction clause and a no certiorari clause. Today, courts see clause as important statement of legislative intent that the issue is to be decided by the delegate and resulting decision entitled to some measure of deference on review.Time Limitation ClauseAppears to limit but not totally preclude judicial review. Two possible constructions of its effect. A) Can be seen as a no certiorari clause with a time window during which one can bring an application for certiorari or mandamus. If one were to miss the limitation period to apply for certiorari or mandamus, one would be bound by the no certiorari clause and review on jurisdictional grounds would still be available. B) The clause can be construed as a time limitation provision barring judicial review completely after the expiration of the specified time. Time limitation clause not unconstitutional because while clause completely barred judicial review, such review was still available until the expiration of the specified time for making the application. Combination Clauses – Constitutional ConcernsExcept in respect of the constitutional jurisdictions of the Board, a decision or order of the Board under this Act, a collective agreement or the regulations, on a matter in respect of which the Board has jurisdiction, or determines that under section – that it has jurisdiction under this Act, a collective agreement or the regulations, is final and conclusive and is not open to question or review in a court under any grounds, and no proceedings by or before the Board shall be restrained by injunction or another process or proceeding in a court, or be removable by certiorari or otherwise into a court.Typically, a combination clause contains a broadly worded exclusive jurisdictions clause, surrounded by a no certiorari clause and a final and binding clause in order to insulate the tribunal’s decision from judicial review to the greatest extent possible. However, a complete preclusion of jurisdictional review is not possible as that would detract from the constitutional position of the superior courts.Crevier v AG of Quebec[1981] 2 SCR 220*RATIO: Precluding on jurisdictional and intra-jurisdictional questions detracts too far from s 96 because inherent supervisory jurisdiction is in superior court. Taking away inherent supervisory jurisdiction of a superior court. By doing that, you’ve created in tribunal a s 96 court. Second point: judicial review on jurisdictional grounds is now constitutionally entrenched.Back to combination clause: Why constitutional? Because the preamble saves jurisdictional control. Time limitation clause: Doesn’t offend Crevier because window of opportunity, didn’t take away totally.E. Standards of ReviewLitigants seeking judicial review would characterize every legal and factual determination as preliminary and, often, judges were able to easily characterize an issue as “jurisdictional” whenever they disagreed with a tribunals’ decision and wished to set it aside as being incorrect. Courts turned to a more flexible and contextual approach. Evolution of “functional and pragmatic approach”. Sought to address underlying question of whether the tribunal or the reviewing court was in the best position to address the salient legal and factual issues. If, after contextual analysis, matter was one that court should conclusively decide then the least deferential standard of review, correctness, would apply. But if on analysis of factors such as tribunal expertise, the nature of the question, the purpose of the statute; and the presence and strength of privative clauses, the tribunal appeared to be body best positioned to deal with the matter, then more deferential standards of either reasonableness simpliciter or patent unreasonableness would apply.Correctness relates essentially to jurisdictional questions, although not really sure what those are other than defining and confining statutory limits of a tribunal.Deference is having respect for the decisions of the tribunal.1. THE FIRST STANDARDS – PATENTLY UNREASONABLE AND CORRECTNESSCanadian Union of Public Employees (CUPE), Local 963 v New Brunswick Liquor Corporation[1979] 2 SCR 227Looking at the right of management to replace or use management personnel to carry out a limited form of operation during illegitimate strike. S 102(3) said can’t replace employee position with any other employee, managers were used. Managers are employees. Offended legislation. *RATIO: poorly written legislation, why should the court prefer one interpretation over another? No one interpretation which can be said to be “right.”Dickson warned that courts should not brand as “jurisdictional” questions that which were doubtfully so.Decision: Board decided a matter which was plainly confided to it, for it alone to decide jurisdiction.Blanchard v Control Data[1984] 2 SCR 476Employee dismissed for good/sufficient cause not jurisdiction question, within arbitrator’s jurisdiction. Protected by privative clause and could only be reviewed if courts concluded decision patently unreasonable. Patently unreasonable errors of law and fact both subject to review nwst a privative clause.2. THE “FUNCTIONAL AND PRACMATIC APPROACH”UES, Local 298 v Bibeault[1988] 2 SCR 1048If within tribunals’ jurisdiction, will only exceed jurisdiction if it errs in a patently unreasonable manner. BUT if question is jurisdictional question (limiting or defining or conferring authority) then standard must be correctness. Formalistic analysis of preliminary or collateral question theory giving way to a pragmatic and functional analysis, hitherto associated with concept of the patently unreasonable error.*RATIO: Ask: Did the legislator intend the question to be within the jurisdictions conferred on tribunal?Only a patently unreasonable error results in an excess of jurisdictions when the question at issue is within the tribunal’s jurisdiction, whereas in the case of a legislative provision limiting the tribunal’s jurisdiction, a simple error will result in a loss of jurisdiction. Advantages to functional and pragmatic approach:Focuses Court’s inquiry directly on intent of the legislator rather than on interpretation of an isolated provision.Better suited to concept of jurisdiction and consequences that flow from grant of powers.True problem of judicial review is discover if intended tribunals’ decision on these matters to be binding on parties to dispute, subject to right of appeal if any.Puts renewed emphasis on superintending and reforming function of the superior courts. When an administrative tribunal exceeds its jurisdictions, the illegality of its act is as serious as if it had acted in bad faith or ignore rules of natural justice. Decision: Concepts of alienation and operation by another do not call on labour commissioner’s expertise. Language of sections clearly indicate that legislator did not intend commissioner’s decision as to the existence of alienation or operation of another of undertaking to be conclusive.Mossop Canadian Human Rights Tribunal*RATIO: Court decided that because it was the champion of human rights that was best situated to deal with human rights issues, that little deference ought to be given to human rights tribunal. Only deference was on fact finding and adjudication processes. Standard of correctness.Several Clear TrendsLabour arbitrators and relations boards, which were protected by privative clauses, were entitled to deference on the basis of patent unreasonabilityOther kinds of tribunals, less deference like human rights tribunals because courts champions of things like human rights.3. REASONABLENESS SIMPLICITER – THE THIRD AND INTERMEDIATE STANDARDCanada (Director of Investigation and Research, Competition Act) v Southam Inc[1997] 1 SCR 748Competition tribunal is a highly expert federal tribunal; largely economic issues; tribunal has laypeople and judges. Mostly court restrict unqualified appeals to questions of law and jurisdiction. Where appeal clearly open (allows merits), language allowing appeal to replace decision with its own will say something like de novo trial.*RATIO: Added reasonableness simpliciter to the available standards of review How to differentiate reasonableness simpliciter and patent unreasonableness: PU has obviousness of defect. RS means somewhat deferential, if find error after digging for a while or probing examination, the tribunal has acted unreasonably, but if on probing examination can’t find error, then leave it. Based on APPEAL. Suggests that legislature in setting up appeal, doesn’t want appellate body to be as deferential as PU would need. But not a kind of question courts great at dealing with so correctness not correct either.Decision: Tribunal did not act reasonably when decided that Southam’s daily newspapers and community newspapers are in different product markets.4. CURRENT STANDARDS OF REVIEW – THE CLASSIC STATEMENTPushpanathan v Canada (Minister of Citizenship and Immigration)[1998] 1 SCR 982Decision of refugee appeal board; Pushpanathan admitted as refugee as permanent status and engaged in trafficking in prohibited substances; liable to deportation so decides to renew application for convention refugee status; question is if he is a conventional refugee; refer to purposes and principles of the UN*RATIO: Expertise presumed, not necessarily established. Tribunal set up for special purpose, members have field expertise because deal with this over and over again, same statute repeatedly, etc.Questions of Fact: board/tribunal have expertise because heard first handQuestions of Law: courts presumed expert except interpretation of contract or closely related statuteMixed: Tribunal deference because of factual elementsFactors to be taken into Account for Deference:Privative clausesExpertisePurpose of Act as a whole and provision in particular: Where purposes of statute and of decision-maker are not primarily in terms of establishing rights as between parties or as entitlements but rather as balancing between different constituencies, then appropriateness of court supervision diminishes; legal principles that are vague, open-textured, or involve a “multi-factored balancing test” may also militate in favour of a lower standard of review.The “Nature of the Problem” – A question of law or fact?: Even pure question of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention (Pasiechnyk). Where other factors leave that intention ambiguous, courts should be less deferential of decisions which are pure determinations of law.The broader propositions asserted, and further the implications of such decisions stray from the core expertise of the tribunal, the less likelihood that deference will be shown.5. THE NEW OR REVISED STATEMENT OF STANDARDS OF REVIEWDunsmuir v New Brunswick2008 SCC 9Labour relations, termination of public officer involved in court administration; not great reports during probation, became permanent employee, periodic reviews, terminated before last review on basis of pay in lieu of notice; not given good reason; not receive reasonable opportunity to respond to concerns. Preliminary matter: Whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to assess the reasons underlying the province’s decision to terminate.Procedural History: Adjudicator had said reinstate because no procedural fairness. NBQB said correctness, quashed reinstatement. NBCA said reasonableness simpliciter, said adjudicator unreasonable.Judicial review balance parliamentary sovereignty and ROL. Function of judicial review is therefore to ensure legality, reasonableness and fairness of administrative process in its outcomes.*RATIO: Two standards of review, not three: correctness and reasonableness. Realize that parliament gave them the responsibility so courts should back off. Correctness is ROL; reasonableness is parliamentary supremacy.Correctness: with general questions of law, predicated on expertise of courts; constitutional questions because courts guardian of constitution. Correctness means that court has the right answer. If disagree with tribunal, replace answer because the new one is the right answer.Reasonableness: Recognizes that there are questions of interpretation/policy/discretion/that arise in polycentric dispute that are not capable of a specific answer. In terms of the process of decision making, is it justified, is it transparent, is it intelligible?Is the outcome within a range of reasonable outcomes?Is there evidence? Has the tribunal reasoned on the basis of that evidence and the law? Can you see it/understand it upon review? Then it will be reasonable.If both questions answered in the affirmative, then reasonable decision, do not interfere.Functional pragmatic approach Standard of Review Analysis (really the same thing): who is in the best position to answer the question and whether or not this decision is unreasonable/correctTwo-Stage Approach:Look at existing jurisdiction to see if setThere’s case law that supports a certain standard. Just use precedent.The one issue commentators have raised is how close does the precedent have to be? Precedent will play an important role, it did play a role in Pushpanathan.Look at guideline court has come up with (5)Questions of fact/policy/discretion which are individual judgment as well as mixed law and fact will attract standard of reasonableness. Start with this presumptionExistence of privative clause suggests deference. A signal from legislation and must pay attention to supremacy of legislature. Suggests reasonablenessThe stronger language of clause, more can argue that it’s a reasonable standardLook at purpose of legislation, to provide alternative to fighting out matters in courts and replace by administrative scheme which is designed to deal with employment disputes more efficiently and with greater expediency than courtNature of the question at issue (law or fact): Constitutional questions: Correctness, s 96 courts as interpreters of ConstitutionTrue questions of jurisdiction or vires: Correctness. Arise where tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.Questions regarding the jurisdictional lines between two or more competing specialized tribunals: CorrectnessGeneral law that is both of central importance to legal system as a whole, has precedential value, and outside adjudicator’s specialized area of expertise: Correctness because of impact on administration of justice as a whole, require uniform and consistent answers.Expertise:Questions of law generally correctness except some involving interpretation of own legislation/ancillary legislation or common law associated with legislationPresumed expertise/familiarity in interpretation of legislation suggests deferenceTribunal has developed a certain amount of expertise in an area of law.Then see if the adjudicator’s interpretation unreasonable (or incorrect).Decision: Standard is reasonableness. Contract governed by private law, cannot be ignored (he was not unionized). Looked into reasons when employer had right not to provide them if paid in lieu of notice. Some deference but not a lot. Appeal dismissed, adjudicator was unreasonable.BINNIE DECISIONAgrees with result, but broader discussion in relation on other kinds of statutory decision makers. Wants to make sure conversation broadened to include public officers, ministers of the crown, special agencies, etc. He doesn’t want this to be just adjudicative decisions.Function of courts is different from admin. Courts have last word on legal matters. Function of admin is determine administrative matters and come to administrative decisionsBut often administrator is better positioned to interpret their home legislation than a courtOr statute/case law very embedded with interpretation of that statute by tribunalParliament often well advised to put admin powers in specialized admin bodies than judgesCourts have last word on common law (to extent relied upon by admin carried out by administrator), constitution, and statute (except home legislation)Just because removed PU standard doesn’t mean that courts can intervene more oftenIn relation to statutory discretion, general standard is reasonableness but we should still look for standard kinds of signs. Power exercised in bad faith, under dictation/direction of another, etc. Assume statutory discretion exercised reasonably.Limits on the Allocation of Decision MakingConstitution restricts legislator’s ability to allocate issues to administrative bodies which s 96 has allocated to courtsAdministrative action must be bounded on statutory prerogative (ie common law) powers. No one can exercise power do not possess. Last word on questions of general law left to judges.Procedural limits are placed on admin bodies by statute and the common law.Reasonableness of OutcomeWhen the applicant for judicial review challenges the substantive outcome of an administrative action, the judge is invited to cross the line into second-guessing matters that lie within the function of the administrator. Controversial because not immediately obvious why a judge’s view of reasonableness of administrative policy or exercise of admin discretion should be preferred unless fully statutory right of appeal to courts or otherwise indicated in conferring legislation that a “correctness” standard intended. Judicial review proceeds on justified presumption that legislators do not intend results that depart from reasonable standards.The Need to Reappraise the Approach to Judicial ReviewPeople hesitate to go to court to see redress for perceived administrative injustice if lawyers cannot predict with confidence even what standard of review will be applied. Disposition of case may well turn on choice of standard of review. Can be costly to applicants.Degrees of DeferenceDifferent administrative decisions command different degrees of deference. Minister making decisions under Extradition Act to surrender fugitive said to be at extreme legislative end of continuum of administrative decision making. Ministerial delegate making a deportation decision according to ministerial guidelines accorded considerably less deference in Baker. The nature of the body must be taken into account in assessing the technique of review which has been adopted by the gov-in-council.Multiple Aspects of Administrative DecisionsApplicant may advance several grounds for quashing an administrative decision. Called “segmentation”.Existence of a Privative ClauseA single standard of “reasonableness” cannot mean that the degree of deference unaffected by existence of a suitably worded privative clause. A system of judicial review based on the rule of law ought not to treat a privative clause as conclusive, but it is more than just another “factor” in the hopper of pragmatism and functionality. Its existence should presumptively foreclose judicial review on the basis of outcome on substantive grounds unless the applicant can show that the clause, properly interpreted, permits it or there is some legal reason why it cannot be given effect.A Broader ReappraisalShould at least i) establish some presumptive rules and ii) get the parties away from arguing about the tests and back to arguing about the substantive merits of their case.Presumption should be reasonableness (contextually applied) and not correctness. Legislature designated someone other than court as decision maker calls for deference to (or judicial respect for) the outcome, absent a broad statutory right of appeal.An applicant urging the non-deferential correctness standard should be required to demonstrate that the decision under review rests on an error in the determination of a legal issue not confided (or which constitutionally could not be confided) to the administrative decision maker to decide, whether in relation to jurisdiction or the general law.Reasonableness is not rationality. Many unreasonable decisions are coldly rational.A single reasonableness standard will now necessarily incorporate both the degree of deference formerly reflected in the distinction between patent unreasonableness and reasonableness simpliciter, and an assessment of the range of options reasonably open to the decision maker in the circumstances, in light of the reasons given for the decisions. Judging “Reasonableness”Depends on the context. Reviewing judge will want to consider the nature and function of the decision maker including expertise, terms and objectives of governing statute (or common law) conferring the power of decision, including the existence of a privative clause and the nature of the issue being decided.It is sometimes appropriate to apply the reasonableness standard more deferentially and sometimes less deferentially depending on the circumstances.6. APPLICATION OF THE DUNSMUIR REVISED STANDARDS OF REVIEWKhosa v Canada (Minister of Citizenship & Immigration)2009 SCC12Street racing, criminal negligence causing death; asked to exercise discretion to allow him to remain in Canada; major question was whether or not demonstrated sufficient remorse and understanding of what he did, and led to conclusion of strong possibility of rehabilitation. FCA said reasonableness standard and lower court did not give enough weight to more relevant issue of remorse, so unreasonable decision*RATIO: Not very deferential if a court says will reweigh factors. Not for the court to reweigh evidence. Findings of fact should not be judged on correctness standard. Might be more than one reasonable outcome. As long as process and outcome fit with principles of justification, transparency and intelligibility, not open to a reviewing court to substitute own view of a preferred outcome.Decision: decision of IAD restored. IAD had denied special relief, he was deported. Chapter 6: Abuse of DiscretionA. Control over the Exercise of DiscretionDiscretion: power of admin agency to make choice between variety of actions, independent judgment. Bad FaithQuestion of fact, not lawVery tough to establishUsing statutory power to harm/injure someone/put government at riskQuestion of fact if you’re acting under direction/dictation of anotherTwo types of techniques used by courts to ensure that admin discretion within jurisdictional limitsWho is to exercise discretion: Presume person to whom discretion delegated ought to exercise it personally or at least create an appropriate structure for the exercise of discretion by subordinates. This presumption articulated in three different legal principles: Rule against unauthorized sub-delegation: Can be expressly or impliedly authorized by statute, but courts reluctant to imply authority to sub-delegate decision-making power in a completely unstructured fashion.Rule against dictation: Discretionary authority is exercised in a formal sense by person to whom authority delegated but in fact discretion was exercised by somebody else. Rule against the fettering of discretion: Concern is not that decision-maker has allowed another person to dictate the exercise of discretion, but that the same result has been achieved by allowing an inflexible rule to determine how the discretion should be exercised. Normally, concern expressed about fettering of discretion only when court believes that important interests will be sacrificed if the decision maker is not prepared, to some extent at least, to consider each case on its individual merits.How discretion is to be exercised: ask what constitutes appropriate reasons/purposes for exercise of discretion in question and why decision-maker exercised discretion in way he or she did.Discretion may not be exercised for an improper purposeMust be exercised after taking into account all relevant considerations and without taking into account any irrelevant considerationsMay not be exercised unreasonablyAssociated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 (UK) (CA) Defendants imposed condition that no children under 15 admitted to any entertainment, accompanied by adult or not on license to plaintiffs. Role of court is not intervene with merits of exercise of discretion. Limiting factors are bad faith, irrelevant considerations, etc.*RATIO: Unreasonableness is really patently unreasonable. It’s absurd, bizarre, gross violation of a reasonable decision. Firing someone with red hair is absurd, patently unreasonable. Once it is conceded, as it must here be conceded, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to considered, there is an end to the case.B. Use of Power for an Unauthorized PurposeRoberts v Hopwood[1925] AC 578Setting wage standard for employees (min wage); also pay equity for men and women; District auditor says can’t set wages, must have regard to business principles*RATIO: Improper purpose is provide equality and set minimum wage, not in line with business policy. Decision: In absence of precise and detailed information as to grounds on which the Council acted their action must be judged by its results. Payments were far in excess of those necessary to obtain services required and to maintain a high standard of efficiency, so really gifts to employees in addition to remuneration for services.Shell Canada Products Ltd v City of Vancouver[1994] 1 SCR 231City council wants to make statement against apartheid; decided not do business with Shell because Shell does business with South African regime; decisions made in public interest or interest of community. *RATIO: Shell says city of Vancouver abused legislative discretion on a number of groundsImproper purpose (oppose apartheid, not a municipal purpose) to interfere with Shell’s lawful trade with South Africa and to encourage a general boycott of Shell’s business requires decision to be quashed despite having been a second, proper purpose of a desire to foster better race relations in the boroughVancouver is not charged with foreign relationsMunicipal purpose: the utilization of public authority to advance the health, welfare, safety, and good government of citizens at a particular localeThis particular motion may make the citizens of Vancouver or feel psychologically happier, but it’s not really what you constitute a municipality forPurpose of Resolutions is to affect matters beyond boundaries of City without identifiable benefit to its inhabitants. Purpose neither expressly nor impliedly authorized by the Vancouver Charter and unrelated effecting intent and purpose of the Vancouver Charter.McLachlin (dissenting) deference required, citizens can vote them out if dislikeCourts must accord proper respect to democratic responsibilities of elected municipal officials and rights of those who elect them.Generous approach to municipal powers aid in efficient functioning of municipal bodies and avoid costs and uncertainty on excessive litigationGenerous approach to municipal powers arguably more in keeping with true nature of modern municipalitiesIrrelevant consideration (wasn’t technically raised as an issue with Sopinka)Apartheid not relevant consideration wrt purchasing oil-based products within cityHow to determine relevance vs irrelevance? Look at legislation. Usually specific, will spell out criteria on making relevant decision. You can reason by that criteria and reason that related steps are equally apt. Next step is look at purpose and object of the relevant. Can determine what’s relevant and irrelevant.If leg doesn’t speak, the courts decide what relevant/irrelevant through stat interpretationDepending on what court deems relevant, it can essentially direct discretionary decisionDiscriminationHow come it picked out Shell? Didn’t do the same thing with other oil suppliersYou are not treated similarly situated companies in the same wayDo you have the power to behave in this fashion?C. Irrelevant ConsiderationsSmith & Rhuland Ltd v The Queen ex rel Andrews[1953] 2 SCR 95Labour Relations Board of NS rejected application by Industrial Union of Marine & Shipbuilding Workers of Canada, Local 18 for certification as bargaining agent of employees in collective unit. Secretary-treasurer of union who had organized local body was communist, so board refused certificate.*RATIO: To treat a personal subjective taint as a ground for refusing certification is to evince a want of faith in the intelligence and loyalty of the membership of both the local and the federation. There must be some evidence that, with the acquiescence of the members, it has been directed to ends destructive of the legitimate purposes of the union, before that association can justify the exclusion of employees from the rights and privileges of a statute designed primarily for their benefit.Decision: discretion improperly exercisedWimpey Western Ltd v Director of Standards and Approvals of the Department of the Environment(1983) 49 AR 360 (CA)Development of land for industrial park, can’t deal with sewage; government of the day wanted to look at what long term needs would be in terms of regional treatment, not prepared to commit to smaller commitments before larger ones; Wimpey wanted to develop their own treatment facility; necessary permit denied by director acting under legislation.Argument: director not exercising discretion, which should have been based on technical considerations. Irrelevant consideration to only consider policy. If relevant, second argument is that it as dictation. *RATIO: Must consider policy to give out permit, relevant consideration to think about multiple discharge points rather than having one discharge point on a larger scale project. The act places no limitation on the director’s power to refuse to issue a permit. But that does not mean that discretion is unfettered. Parliament must have conferred discretion with intention that it should be used to promote the policy and objects of the Act; the policy and objects of the act must be determined by construing the Act as a whole and construction is always a matter of law for the court. Did not err in taking minister’s policy into consideration. Would hamper permit granting system if director could only look at applicants individually but could not consider water quality objectives for total river system. Second argument later. Look at the enabling legislation to conclude the intent and purpose of the Act. To provide effective means of preventing pollution and maintaining the quality of water within the province of Alberta.D. Bad FaithRoncarelli v Duplessis[1959] SCR 121Roncarelli’s family operated restaurant in Montreal for some decades, JWs in open conflict with government of Quebec, seen to be a threat to catholic church; People arrested and Roncarelli posting bail; Premier Duplessis said to cancel his liquor licence based on religious beliefs/political activities.*RATIO: Acting for improper purpose; to punish a person who supposedly is not a supporter of the regime. Irrelevant considerations: fact that he supports JW is highly irrelevant in liquor licence. Bad faith: motivated by intent to injure or harm, punishment for actions. Acting under dictation: the decision maker acted under direction of the Premier. No hearing, no notice, no counsel. It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are compatible with the purposes envisaged by the statute. A decision to deny or cancel such a privilege lies within the “discretion” of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration.No such thing as unfettered discretion, that is, that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.Discretion necessarily implies good faith in discharging a public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.Legal limits on all expressions of statutory discretionAdministration of a statute must fall within purposes and objects of legislationThe intentional act of acting outside of your authority is sufficient to give rise to malice in the exercise of statutory authority. Also basis of a tort action: malicious exercise of statutory authorityMalice is simply acting for a reason and purpose knowingly foreign to the administration to which was added here the element of intentional punishment by what was virtually vocational outlawry.E. UnreasonablenessBaker v Canada (Minister of Citizenship and Immigration)[1999] 2 SCR 817Up until this case, control of discretion or so called abuse of discretion grounds were a number of specific/nominate grounds of review. Improper purpose, bad faith, etc. They were discrete grounds, principles quite clear. Deportation would separate her from family, not many resources.*RATIO: SCC decided to adopt overarching architecture, not only dealing with legal provision in statute, not only dealing with questions of fact, but also dealing with exercise of discretion.Federal Court said minister has a lot of discretion, not part of Canadian law, therefore not binding, minister had other considerations acted on, and therefore we ought not to interveneJust says standard review of substantive aspects of discretionary decisions best within functional pragmatic approach especially in making rigid classifications of discretionary and non-discretionary decisions.Recognizing that courts said for years not to interfere with discretion but only to ensure legality, but now she says on basis of functional pragmatic approach, because she can’t make a distinction between discretionary and non-discretionary so make a decisionIf you’re not supposed to be looking at merits of the decision, what are you doing if you decide if it’s unreasonable? Does this not invite greater intervention in discretionary decision making as opposed to reflect historic deference to administration of decision making?SCC had a number of other grounds in which there were a number of issues of fairness that were allegedly breached in this case. Such as bias, legitimate expectation, reasons, etc. She focused on discretion as one of the elements and decided that discretion ought now be reviewed on this basis.She talks about what will be the standard of review in this case, and looks at a number of factorsPresence/absence/wording of Privative clause. Lower level of deference on issues related to certified question itself; however, this is only one of factors, others must also be considered.No privative clause here, suggests correctnessBut language in statute suggest deferenceExpertise of Decision maker: fact that the formal decision-maker is Minister is factor for deference. Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from requirements that normally apply.Ministers aren’t appointed for expertise, really, but presumed expertise in the areaDeference even though Minister did not make decision himself, used two delegatesPurpose of the provision in particular, and that of the Act as a whole:Provision discretionary, minister to determine if compassionate grounds sufficient to facilitate admission; range of choices, not duty, so discretionary; exception from statuteBut decision also relates directly to rights and interests of an individual in relation to the government, rather than balancing interests of various constituencies or mediating between them.Nature of the problem in question, especially whether it relates to determinations of law or facts: Decision of whether to grant H&C exemption involves considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules. Highly fact-based and discretionary nature, factor for discretion Law said court implanted a consideration that is not identified in the statute and made it not only a consideration, but the preeminent consideration. Seems to be interfering with merits because if you take into account best interest of the children, you must come that they should be with their mother. That gives you the decision. That’s the merits by directing a certain factor as being the important factor.The officer in opinion of L’H D was completely dismissive of interest of children, Law disagrees. Had other reasons that were equally legitimate that this wasn’t a case to exercise humanitarian and compassionate discretion. Took values in international law not transformed into domestic law and made it the focus of the decision.Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour)[2003] 1 SCR 539Instead of deferring to minister’s decision on basis that it fell within a range of reasonable outcomes, the court added own relevant consideration and then said that minister’s exercise of discretion in this case was unreasonable; scheme set up to avoid strikes, involving hospitals and nursing homes; replaced standard mechanisms of collective bargaining to compulsory arbitration. Usually, those in arbitrator position appointed as people suited to role or experienced/knowledgeable in labour arbitration. Brought expertise and reputation for impartiality. Now have creation of new panel, different approach to naming of arbitrators, drawn from ranks of retired judges.*RATIO: Missing key consideration is patently unreasonable in light of factors not demonstrating that standard was of correctness. Minister must follow purpose and objects of statute that conferred the power. Failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration. In applying patent unreasonableness test, not reweigh factors but entitled to have regard to importance of factors that have been excluded altogether from consideration. It’s the part on expertise and general acceptance in the labour relations communityStandard of review analysis, minister of crown, broad discretion, clearly something involves broad policy considerations, etc. All suggest a high degree of deference, so need patent unreasonableness standard.Scheme to replace strikes means both parties must buy in. By appointing retired judges viewed with some suspicion by labour people would be contrary to the purpose. To only focus on the fact that judges are good at judging is to exclude an important factor: that both sides can buy into the prospective arbitrationKEY: General acceptance, and lesser degree, their expertise. The system must seem neutral and credible.Court exercised discretion while saying that minister has broadest discretion to do what they want. So we have a court going too far. No reference to factors maj has relied upon in the statute or the regulations, and they are not immediately obvious, not as obvious as the majority says they are. So it’s not patently unreasonable to rely on factors not in legislature that are not obvious. It was reasonable, or at least not completely unreasonable. Reading between the lines, court felt that this was politically driven position as part of a complex struggle with labour unions where government wanted to stack the deck in terms of seeing that its program of cutbacks, restraint was upheld and judges would probably be more sympathetic to this position than someone involved in labour arbitrations would be.Bastarache dissentPatently unreasonable: one unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures. Reviewing court’s role not to reweigh factors considered by discretionary decision maker. Nor is goal to review the decision or action on merits.Agree with Binnie that a contextual approach to statutory interpretation of the enabling legislation is necessary for determining the relevant criteria. Disagree about what essential criteria ultimately turn out to be. Disagree as to which factor(s) must be given primary importance for an appointment to survive review as no “clearly irrational” or patently unreasonable.Clearest of cases, criteria constraining exercise of a discretion will be spelled out in legislation itself. In other cases, relevant factors to consider will be specified in regulations or guidelines. Where alleged defect is failure to consider relevant factors, important that those factors must themselves be immediately identifiable or obvious.Lake v Canada (Minister of Justice)2008 SCC 23Minister’s power of extradition; some guy dealing drugs with international dimensions. Tried to hit charter, constitutional argument. He argues in relation to charter (primary focus in this case) that minister subject to correctness standard.While everything would indicate because minister of crown, nature of decision and policy considerations, need deferential, argues for correctness because charter engaged. If you said any extradition violates mobility rights on correctness standard, then transferred political decision from government, which has foreign affairs ramifications, to courts. Made a broad policy kind of decision into a strict legal question.Court cannot simply blindly follow minister’s decision but must respect. Cannot reweigh. Just respect minister’s judgement and think minister has considered factors so long as minister’s actions falls within range of reasonable outcomes, court ought to defer.*RATIO: that charter engaged in exercise of discretion means minister must pay attention to charter. Exercise of discretion has Charter ramifications, but must still adhere to notion of deference. So long as decision clearly is based upon relevant factors as established by case law does engage charter right and deals with it, reasonable, then courts not intervene. Court must ask whether Minister considered relevant facts and reached a defensible conclusion based on those facts. The Minister must apply correct legal test. If identified proper test, conclusion reached in applying that test should be upheld as a reviewing court unless unreasonable. Minister has duty to provide reasons for decision but need not be comprehensive. Not required provide detailed analysis for every factor. An explanation based on what Minister considers most persuasive factors sufficient for reviewing court to determine whether his conclusion reasonable.Process of extradition from Canada two stages: judicial and executive. First stage committal hearing at which committal judge assesses evidence and determines (1) whether discloses prima facie case that alleged conduct constitutes crime both in requesting state and in Canada, that crime is type of crime contemplated in bilateral treaty and (2) whether establishes on bop that person before court in fact person whose extradition sought. After committed for extradition, Minister reviews case to determine whether should be. Minister’s discretion not absolute, must be exercised in light of Extradition Act and Charter.In determining whether surrender consistent with Charter, Minister must consider many factors, including Canada’s international obligations and relationships with foreign governments.Doré v Québec (Tribunal des professions)[2012] 1 SCR 395Lawyer wrote scathing letter to judge; charge of misconduct to law society; conduct of advocate to be objective and dignified; lower courts make Oakes analysis, but that test arose by challenge to legislation, then to decide purpose of legislation; not sure if right approach when reviewing discretionary decisions. Decision maker requires level of deference so courts may not be in best position to make this decision.Decision of decision maker in this tribunal was subject to charter because authority being exercised is statutory, discretionary in nature, but subject to Charter. Like Slaight Communications decision of a labour arbitrator was in interference with employer’s freedom of expression subject to charter.*RATIO: Administrative decision makers must take into account charter and charter values. Baker had said exercise of discretion subject to Charter and its values because provided for foreign legislation Start with expertise of tribunal in connection with home statutes. Decision maker then consider statutory objectives of the home statute. Then ask how Charter value at issue will best be protected in view of statutory objectives.Courts have said that standard review of discretionary decisions where Charter implicated is reasonableness because it’s discretionBinnie says might be variable because not all exercises of discretion is same depending on who exercising power and what group, etcAbella said standard of reasonableness won’t change because standard is reasonablenessCan’t make the standard correctness just because charter implicated because that makes courts de novo bodies of appeal and they are making decision, not tribunal, undermines whole concept of reasonableness.If hold tribunal to the values of the charter, then must also give it opportunity to apply charter, bring expertise, knowledge of facts/policy, contextual considerations to bear on whether or not charter violation exists. Accord that some deferenceNot correctness on charter troubles some people. Plethora of opinions on what this protects? Hasn’t happened so far and Law not think willA tribunal interpreting charter/what it means subject to a correctness standard. What liberty means. What fundamental justice means. That’s subject to correctness standardTalking about application of charter in making discretionary decision; that is, is charter violated in these facts? Is this violation justifiable/reasonable? That kind of thing accorded deferenceIf you don’t like legislation or regulation that stands in the way of what your client wants, then maybe easiest way is to just go before a judge and get a declaration as to constitutionality of the at legislation/regulation. Once the court ruled on that question of law, which is subject to correctness standard, then go back to argument to see what should be done in your caseDecision maker must balance objectives of statute and Charter valueMust ensure Charter value is protected; make decision that best protects it, not dismiss or ignore. Show in your reasoningThere’s charter value, ex: right of freedom This decision based upon a balance of that value and right with the statutory objectivesFalls within range of reasonable outcomesThese codes ensure lawyers act in public interest so not pursue own interest to detriment of clientBalance severity of conduct against freedom of speaking The decision at end of day found reasonableHe has freedom of expression, useful to exercise freedom to ensure judges acting improperly held to account, but his guarantee of expression limited by need to ensure admin of justice carried out in appropriate manner in public interestCourt will not interfere where they see that disciplinary council was alive to charter issue, there’s limit, and conduct went beyond, undermined substantially pressing objectives of the statuteOn that basis, not unreasonable to find him guilty of professional misconduct.Party who has breached charter must justify what they’ve done.SCC said wanted to relook classic Oakes analysis, application to administrative discretion, determined Oakes not a particularly good fit with administrative discretionSaw the same principles at work, just didn’t like structure of analysisThe real question: is this particular discretionary question disproportionate? If it’s not unreasonable interference, then it will be upheld by court on the basis that discretion suggests that standard of review is reasonableness, as opposed to correctnessLook at what statutory objectives are, then look at charter values that are implicated, and decide what is an appropriate balanceProportionality test which seeks to balance, and pursuit of statutory objectivesF. Discrimination/Vagueness/UncertaintyMontreal (City) v Arcade Amusements Inc[1985] 1 SCR 368Discriminating against women and children under 18 in amusement hall; prima facie authorization to discriminate; You may encounter similar kind of legislation on exam. Discriminates on basis of age (s8).Second argument is that it is uncertain/vague wrt what is meant by term “amusement machine”. Argued it was like the criminal law power.Uncertainty Reasonable person can interpret obligations of legislation, then satisfies standard of uncertaintyJust because some difficulty interpreting, not make it sufficiently vague as to render it voidReally looking for subordinate legislations that are incapable of being applied or followedVagueness Not every instance of vagueness in wording may have effect of invalidating a by-lawVagueness must be such that a reasonable effort at interpretation is unable to determine the meaning of the council.Discrimination element (described with vagueness in the case):Rule exists that power to make by-laws does not include that of enacting discriminatory provisions unless enabling legislation provides contrary A by-law is not unreasonable merely because particular judges may think it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there.In matters directly and mainly concerning people of county, who have right to choose those whom think best fitted to represent them in local government bodies, such representatives may be trusted to understand their own requirements better than judges.Courts not interfere just because more reasonable bylaw could be enacted, defer to political willMere uncertainty as to scope of a by-law will not suffice to make it void*RATIO: You have a reasonable person capable of making a reasonable interpretation of legislation. Not perfect, just capable of interpretation and application so not unreasonableIf attack s 8 of bylaw and if is found invalid, and if found to go right to heart of bylaw, then cannot be severed and entire bylaw comes downSometimes argue particular provision can be severed, bylaw can stand without the provisionHere, court thought it could be severedBy-laws are only unreasonable in the wide or legal sense, and ultra vires, if: 1) they are partial and unequal in operation between different classes; 2) they are manifestly unjust; 3) they disclose bad faith; and 4) they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable men.Only a few examples of by-laws invalidated for unauthorized discrimination. The following have led to by-laws based on them being held invalid:Residents and non-residents in the granting of permitsClosing hours between mariners whose ships were in port and other customers of a dealerDistinction between dogs weighing over thirty-five pounds and those weighing less for purposes of muzzling or putting on a chainBusinesses of the same class for the purposes of setting closing of hoursCommon law discrimination: treating people in a class differently from others. Ok as long as authorized by enabling legislation.Distinction on age of children, adolescents and minors ultra vires unless authorized by enabling statute except in case at bar and a few others.Shell Canada Products Ltd v City of Vancouver[1994] 1 SCR 231Not just resolution against Shell but didn’t treat other oil suppliers who also had relations with South Africa in the same way*RATIO: Second aspect of caseWas power to discriminate authorized? NoCharter not apply because commercial relationshipDiscriminate against corporations which do business in South Africa Discriminate against Shell vis-à-vis Chevron and other corporations which also do business in South AfricaDiscrimination can only occur where the enabling legislation specifically so provides or where the discrimination is a necessarily incident to exercising the power delegated by the provinceFundamental principle of municipal law that by-laws must affect equally all those who come within the ambit of the enabling enactment. Municipal legislation must be impartial in its operating and must no discriminate so as to show favouritism to one or more classes of citizensDifferent considerations apply to discrimination for non-commercial, non-business reasons that are not grounded in promoting health, safety or welfare of inhabitants of city. Cannot be said that consideration relating to the political policy be a foreign state are so essential to the exercise of enumerated powers as to be impliedMcLachlin dissent:In doing business and carrying out certain activities, has to make decisions of who to make decisions with and who not to. Already discriminating when choosing to do business with ShellCan’t go to council every time you want to buy bolts from X and not YCouncil said probably something for corporations but this is not normal business relationSpot ZoningZoning is municipalities categorizing properties in areas in a regionSpot zoning is if you want to change zoning for another reasonCourts have said spot zoning permitted and authorized under general powers of zoning provided1) there is the power to zone2) that it is in the public interestNot just interest of particular property ownerG. RetroactivityGeneral rule: exercise of a power which has been delegated to inferior tribunal not capable of being exercised retrospectively unless statute expressly authorizes it.Law’s prospective; don’t like that what doing can now be subject to sanction because passed something that gives it retroactive effectSo if have case where municipal council passes bylaw for levy, and says that the levy should be retroactively applied, it is struck down. No authorization for this unusual use of discretion*RATIO: Retroactivity seen as antithesis of law so if want that, courts will require a VERY CLEAR statement of retroactivity H. Fettering Discretion by General Policy FormulationWimpey Western Ltd v Director of Standards and Approvals of the Department of the Environment(1982) 37 AR 303 (CA)*RATIO: Can use policy as a consideration.Policy statements are value judgement of decision maker. Not legislation and not subordinate legislation but statement for public or affected parties on how admin tribunal will exercise discretion; what factors will take into account. Helps affected parties better prepare their case.Plaintiff arguing that law prohibits adoption of policy fettering the exercise of the discretion in each case.Authority must not predetermined the issue; although not obliged to consider every application before it with a fully open mind, must at least keep mind ajar. Argument was that director fettered his discretion or refused to exercise it by basing decision on minister’s policy to defer all applications for such permits until a regional sewage system was operational. For there to be merit in this submission, appellants would have to show that minister’s policy was not in effect at the time the director granted approval to the towns named by the appellants. No such evidence.Decision: There was no fettering here, each project looked at separately in light of appropriate local circumstances and conditions, and indicates that discretion was properly used.Ainsley Financial Corp v Ontario (Securities Commission)(1994) 21 OR (3d) 104 (CA)Securities regulation; dealers going door to door selling penny stocks.*RATIO: Discretionary decision makers can create policy statements. Just the creation of policy statements does not invalidate the exercise of discretion. A guideline remains a guideline even if those affected by it change practice to conform. A non-statutory instrument cannot pre-empt the exercise of a regulator’s discretion in a particular case. A non-statutory instrument cannot impose mandatory requirements enforceable by sanction. Regulator cannot issue de facto laws disguised as guidelines. But no bright line which always separates a guideline from a mandatory provision having effect of law.Statement put forward to assist security dealers in understanding and complying with those obligations by informing them of Commission’s view as to what constituted appropriate business practices in the context of the marketing and sale of penny mission contends that statement not forbid specific practice or declare anything obligatory, but respondents say that it’s mandatory and establishes onerous and detailed scheme intended to dictate manner in which respondents must carry on business.Generally:Format of statement: guidelines connote general statements of principles, standards, criteria or factors intended to elucidate and give direction. – Policy Statement 1.10 sets out minutely detailed regime complete with prescribed forms, exemptions from regime and exceptions to exemptions. Reads like a statute or Regulation setting down a code of conduct and not like statement of guiding principlesLinkage made: Policy Statement 1.10 to Commission’s power to sanction in public interest and pronouncement practices set out in policy statement accord with public interest. Connection gives Policy statement coercive tone. Suggest threat of sanction, essence of mandatory requirement.Brown v R in Right of Alberta(1991) 81 Alta LR (2d) 143 (Alta QB)Driver applied to Driver Control Board to set aside motor vehicle operator’s licence suspension of policy minimum of 12 months; board said could find no reason to make exception to policy in applicant’s case; Court said board fettered discretion through rigid adherence to policy.*RATIO: Insufficient for board to simply state found no exceptional reasons to exempt him from application of policy without going on to show that it considered his case against what might be considered to be exceptional reasons and found it lacking. Must make actual consideration of these factors; not enough to say there is nothing in applicant’s case to make it worthy of exemption from policy. Board must be prepared to expressly elucidate what factors considered in making determination. Where statutory tribunal exercising delegated authority is mandated by statute to make its decisions based on objective criteria, must be able to show it did so, before it adopts a policy to guide it.I. Fettering Discretion by ContractPacific National Investments Ltd v City of Victoria[2000] 2 SCR 919*RATIO: Government not bound by own legislation unless it says it is; Crown cannot be held liable when breaches its contracts. Government is special. In government, municipal here, but even provincial, if enters contract as part of ordinary operations and commercial activities, then these contracts can be enforced and held liable.City entered a “Master Agreement” with a private corporation to develop a piece of land; Phase II was sold to second private developer; half way through project city re-zoned to prevent further development (on behalf of citizens who opposed the plan)The developer PNI argued that this was a breach of the city’s implied obligations under the Master Agreement; sued for breach of contract and claimed restitutionBCSC held that it was implied in the Master Agreement that the city’s zoning would remain in place for a “reasonable period of time” and held the city liable for breachBCCA set aside the trial judgment on the basis that such an implied term would contravene the principle that a municipal council cannot bind future councils, and to restrict future legislative power in this way was against public policySCC agreed in its interpretation of the enabling provincial statute that the city did not have the capacity to make and be bound by a contractual term like the one alleged Any contract which would interfere with due exercise of discretion and judgment of a member of such a council must equally be void as against public policy municipalities must be free to amend or alter by-laws and cannot bind themselves or successors by contract with a third party An agreement to compensate for failure to execute the contract would also constitute a restriction on legislative power and thus an illegal fetter on the municipality’s discretionary legislative powerDirect fetter – where the actions committed directly cause the damageIndirect fetter – breaking the contract knowing that there will be damageFurther public policy an experienced developer like PNI was aware of the special legal and political risks associated with entering a contract with the cityDissent (Bastarache J): Where municipality enters K with legitimate purpose, K must be honoured in a nation governed by rule of law; assume gov’t will honour obligations unless explicitly exercises its power not toDistinction b/w preventing a council from exercising its legislative discretion and requiring it to consider it’s contractual obligations The gov’t had to use clear and explicit language to extinguish any existing rights i.e. the right to compensation for breach of contractIt would be against public interest not to hold the city liableBody of case law that suggests that the crown (both federal and provincial) has the contractual powers of a natural person, however in some circumstances, where it is necessary for the crown to breach a contract, they cannot be held liable… (Admiral Arrow case gov’t broke a contract to build an aircraft b/c it had lack of funds) J. Fettering Discretion by Applying Another’s DecisionRoncarelli v DuplessisDecision to cancel liquor license was in power of individual on Liquor Commission; however took direction from premier, with view that he wanted to keep his job. The premier “ordered” him to cancel the license, asserting his authority as leader of province, even though had no legislative authority to make that decision. The exercise of discretion here was found to be ultra vires Koopman v Ostergaard(1995) 12 BCLR (3d) 154 (SC)Imperial Oil Resources applied for a license to drill an exploratory well for natural gas, as well as build an access road on crown land; minister of energy approved application; after, the minister of forestry issued license to IOR to cut timber on land to build road, stating he felt he had to because ministry had already authorized construction of the road Forest Act confers broad discretion to minister to grant licenses, with aim to manage, protect, and conserve the forest and crown resourcesIn spite of own concerns about environmental impact, minister of forestry issued license to cut by deferring to final decision of energy ministerFetter discretion as a result of misapprehension that he was compelled to issue Licence to Cut in view of Energy’s approval of Well Authorization in spite of concerns. Ignored highly relevant considerations identified by own Ministry, improperly considered the extraneous and irrelevant consideration that he was bound to issue the Licence to Cut because of the actions of Energy.In failing to give any other reason for his decision, this amounted to a complete abdication of his statutory obligations under the Forest Act to exercise independent judgment *RATIO: Officer ought to have exercised due diligence, made his own decision, as he was obligated to do under the statute. Essentially abdicated his discretionary authority.PART IV: Judicial Control of Administrative Process – Procedural GroundsChapter 1: Natural Justice/Duty of Fairness/Fundamental JusticeIntroductionNatural Justice: common law principle applied in interpretation of statutes. When admin body given power to act in a quasi-judicial capacity, courts will presume that legislature intended these powers were to be exercised in accordance with natural justice even if legislation not provide express procedural safeguard. If not comply with natural justice, considered exceeded jurisdiction.Audi alteram partem: the person affected by the decision has a right to be heardNemo judex in causa sua: the decision-maker must be unbiasedFairness: Because principles of natural justice applied only when admin body acting quasi-judicially, was of considerable importance to distinguish between decisions that had to be made quasi-judicially and those merely admin in nature. Decided distinction artificial in 1970s, so when rights of persons affected in a context which fairness demanded, would require administrative body to provide some level of procedural protection to the person affected. Procedural fairness generally thought to require something less than full scope of procedural safeguards offered by natural justice. The rationale for fairness doctrine was there should be middle ground between situations in which full trial-type hearing required and those in which no procedural protection provided. Fairness doctrine enables court create procedural safeguards appropriate to circumstances of each case, using principles of natural justice as general guideline.If you are required to provide a reasoned decision, will provide a better decision. Show intelligible, transparent, etc, can be achieved with good reasons. Address argumentsFundamental Justice: Include at least the notion of procedural fairness. Two distinctions between right to “fundamental justice” and right to “natural justice” and procedural “fairness.” S 7 of Chatter applies only where life, liberty or security of person at stake. Scope of application more limited than that of natural justice or fairness doctrine (which apply to decisions affecting other interests as well), but extent of s 7 unclear.Constitutional requirement that fundamental justice be provided can override express wording of a statute; natural justice and fairness doctrine are principles of statutory interpretation that can be used to fill in gaps and to resolve ambiguities but cannot be employed to contradict the clear terms of a statute.A. Historical DevelopmentCooper v Wandsworth Board of Works(1863) 143 ER 414Wandsworth demolished Cooper’s house. Cooper did not give notice of intention to build, so board said had statutory authority to demolish. House incomplete, but power would apply to complete house.*RATIO: No man shall be deprived of his property without an opportunity of being head. Breach of natural justice: no notice or hearing.Decision: The board ought to have given notice to the plaintiff and allowed him to be heard. Ultra viresObligation did not come from statute. Established notion that natural justice is nothing more than the court acting to carry out will of legislature, which is unexpressed. Courts not usurping to themselves when imposing these requirement, actually just expressing will of legislature unexpressed. On this basis, statute can trump this ROL. Can limit/exclude but only in clearest, strictest terms.B. Duty to be FairRe Nicholson and Haldimand-Norfold Regional Board of Commissioners of Police[1979] 1 SCR 311Appellant constable terminated from police just over a year after hired. Not told why dismissed, not given any notice, no opportunity to make representations before his services were terminated.*RATIO: Just because not have protections of someone employed over 18 months not mean no protections at all. Should be treated fairly, not arbitrarily. In realm of quasi-judicial, rules of natural justice run and admin or executive field, there is a general duty of fairness.Judicial, quasi-judicial and administrative difficult to distinguish, so to endow some with procedural procession while denying others any at all would work injustice when results of statutory decisions raise same serious consequences for those adversely affected, regardless of the classification of function in question. Dispense with classification as precondition to availability of certiorari.Decision: Appellant should have been told why services no longer required and given opportunity, orally or in writing, to respond. Once had response, would be for Board to decide on what action to take, without decision being reviewable elsewhere, always premising good faith. Such course provides fairness to appellant, and is fair as well to Board’s right, as public authority to decide, once had the appellant’s response, whether person in his position should be allowed to continue in office to point where right to procedural protection was enlarged. Status in office deserves this minimal protection, however brief the period for which the office is held.Martineau v Matsqui Institution Disciplinary Board (No 2)[1980] 1 SCR 602Facts: Applicant, inmate of fed penitentiary in BC, Matsqui, seeks certiorari removing into Trial Division of FC for purpose of quashing conviction by disciplinary board of penitentiary after homosexual act. Federal Court Trial Division had power to grant cert in Federal Court Act. Give same power to FCA because when have tribunal involved in very complex regulatory scheme, huge obligation to judge to review, better have a panel, ie CA. Once you characterize function as judicial, then in FCA, and no proceedings could be brought in trial division. As a result, some courts saying, this decision is not judicial decision, it’s administration, so should be in Trial Division. But natural justice does not pertain to admin decision. Martineau brings application in both courts.Before Ridge v Baldwin, there was super-added duty to behave judicially before certiorari was permitted. That merely determining what rights of an individual should be was not enough, but that there must always be something more to impose on it a duty to act judicially before can be found to observe principles of natural justice. The board’s decision in this case had effect of depriving individual of liberty by committing him to prison within a prison. Elementary justice requires some procedural protection. The rule of law must run within penitentiary walls. Issue: Question of supervisory role, if any, of FCTD wrt disciplinary boards within Canadian penitentiaries. Also, analysis of fairness doctrine, question of potential breadth of common law remedy of certiorari in Canada. Only question is if Martineau has right to have complaint considered at FCTD.*RATIO: Certiorari avails as a remedy wherever a public body has power to decide any matter affecting the rights, interests, property, privileges or liberties of any person. RIPPL Court said fairness and natural justice not separate, blend one into the other. Fairness is subset of natural justice. Today, use both terms fairly interchangeably, reserving fundamental justice for matters of the Charter. In most cases, obligation to give notice and to give hearing, but not always oral hearing, can be a written hearing. In a case such as this, dealing with prisoner, liberty curtailed. Spectrum analysis (Law calls this). Start out with judicial functions, quasi-judicial, admin, ministerial and then legislative functions. The closer get to pure judicial function (like courts of law), greater obligation to adhere to full scope of natural justice. Somewhere at the end of this, fall off the cliff with a ministerial or legislative function. Exclude for broad policy-based discretionary decisions.RULES:Certiorari available as general remedy for supervision of machinery of government decision-making. Order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. Basis for broad reach of this remedy is general duty of fairness resting on all public decision-makers.Purely ministerial decision, on broad grounds of public policy, typically afford individual no procedural protection, any attack upon such a decision have to be founded upon abuse of discretion. Public bodies exercising leg functions may not be amenable to judicial supervision. But function approaches judicial end of spectrum will entail substantial procedural safe-guards. That a decision maker not have duty to act judicially, , does not mean that there may not be a duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules. Should not try to distinguish between duty to act fairly, and duty to act in accordance with the rules of natural justice.Inmate disciplinary board not a court. Tribunal which has to decide rights after hearing evidence. Subject to a duty of fairness and person aggrieved through beach of that duty entitled to seek relief from Federal Court, TD on application for cert.Not every breach of prison rules of procedure which will bring intervention by Courts. Very nature of prison institution requires officers make on the spot disciplinary decisions and power of judicial review must be exercised with restraint. Question is not whether there has been a breach of prison rules, but whether there has been a breach of duty to act fairly in all the circumstances.Wrong to regard natural justice and fairness as distinct and separate standards and seek define procedural content of each. General, duty to act fairly means duty to observe rudiments of natural justice for limited purpose in exercise of functions not analytically judicial but administrative. Content of principles of natural justice and fairness in application to individual cases will vary according to circumstances of each case.Must answer, in final analysis: did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved?Rights and privileges distinction no longer limit scope of procedural fairness as public authorities will be required comply with applicable standard of fairness whenever decisions affect rights, interests privileges, and legitimate expectations of citizens. Distinction may retain some importance in determining the content of any procedural duty of fairness in specific cases.Baker v Canada (Minister of Citizenship and Immigration)[1999] 2 SCR 817Both agree duty of procedural fairness applies to H&C decisions. That a decision is administrative and affects the rights, privileges or interest of an individual enough to trigger application of duty of fairness.*RATIO: FIRST: Factors Affecting the Content of the Duty of FairnessDuty of fairness does not determine what requirements will be applicable in a given set of circumstances. All circumstances must be considered to determine the content of the duty of procedural fairness.Nature of decision being made and process followed in making it: closeness of admin process to judicial process indicate how much of governing principles should be imported to realm of admin decision making. More process provided for, function of tribunal, nature of decision-making body, and determinations must be made to reach decision resemble judicial decision making, more likely that procedural protections closer to trial model required by duty of fairness. Nature of statutory scheme and the terms of the statute pursuant to which the body operates: Role of particular decision within statutory scheme and other surrounding indications in statute help determine content of duty of fairness owed when a particular admin decision made. Greater procedural protections, ex, required when no appeal procedure provided within statute, or when decision determinative of issue and further requests cannot be submitted.Importance of the decision to the individual(s) affected: more important decision is to lives of affected and greater impact on person(s), more stringent procedural protections mandated.The legitimate expectations of person challenging decision may also determine what procedures duty of fairness requires in given circumstances: Part of doctrine of fairness and not create substantive rights. If legitimate expectation found to exist, will affect content of duty of fairness owed to individual(s) affected by decision. If claimant has legitimate expectation that certain procedure will be followed, procedure will be required by duty of fairness.Take into account and respect choices of procedure made by the agency itself, particularly when statute leaves to the decision-maker ability to choose own procedures, or when agency has expertise in determining what procedures appropriate in circumstances. (See French case)SECOND: Participatory Rights: Whether, considering all circumstances, those whose interests were affected had meaningful opportunity to present case fully and fairly. Factors for determination of type of participatory rights:H&C decision very different from judicial decision, since involves exercise of considerable discretion and requires consideration of multiple factorsRole is also as an exception to general principles of Canadian immigration law. Militate in favour of more relaxed requirements under duty of fairness.But no appeal procedure, although can have judicial review. In practice, exceptional importance to lives of those with interest in result so duty of fairness more extensive.Statute accords considerable flexibility to Minister to decide on proper procedure and immigration officers do not conduct interviews in all cases.Decision: oral hearing not necessary, satisfied participatory rights requirements by duty of fairness.Congrégation des témoins the Jéhovah de St-Jér?me-Lafontaine v Lafontaine (Village)2004 SCC 48Facts: Jehovah’s Witnesses in Quebec asked for rezoning of piece of land. Don’t get hearing, don’t get discussion or inquiry into application. Just told denied, they continue to look for appropriate land. Come back again for rezoning because could not find appropriate land in P3 designation. Municipality pay no attention to them. No reasons provided. City thought had complete discretion.Issue: does municipality need to give congregation reasons for refusing rezoning application?SCC couldn’t find evidence but had strong feeling there was classic bad faith here. Not good faith exercise of municipal powers of zoning. Action against group because of who they were and did not want them have established place of worship at this location. Note: really difficult to make these kinds of cases unless you have really strong circumstances or a confession (like Roncarelli v Duplessis).*RATIO: Municipality was bound to procedural fairness, to act in good faith and with a view to the public interest. Provide reasons. Historically, not needed as part of natural justice. Not anymore.The content of the duty of fairness on a public body varies according to five factors (Baker): Nature of decision and decision-making process employed by public organ Merges administrative and political concerns. Elected council accountable to constituentsPublic interest decisionElected councillors cannot deny rezoning application arbitrarily. If in arbitrary fashion in discharge of public function, good and sufficient reason exists to warrant intervention from reviewing court in order to remedy the proven misconduct.Nature of statutory scheme and precise statutory provisions pursuant to which public body operatesMunicipality has act granting it authority to consider rezoning applicationsAbsence of appeal provision demands greater municipal solicitude for fairnessEnhanced procedural protection required when no appeal procedure provided within statute or when decision determinative of issue and further request cannot be submittedImportance of decision to individuals affectedAffects right to freely adhere to faith and to congregate with others in doing so is of primary importanceLegitimate expectations of party challenging decisionWhere prior conduct creates for claimant a legitimate expectation that certain procedures will be followed as a matter of course, fairness may require consistencyMunicipality followed involved process in responding to first rezoning application, giving rise to expectation that future applications would be thoroughly vetted and carefully consideredNature of deference accorded to the decision makerThe public body may be better positioned than judiciary in certain matters to render a decision, and to examine whether decision in question falls within this realm.Second and third application here, no record to indicate that Municipality actually engaged expertise in evaluating applications.Giving reasons for refusing to rezone in a case such as this serves values of fair and transparent decision making, reduces chance of arbitrary or capricious decisions and cultivates confidence of citizens in public officials. Municipality’s duty exists independent of the Congregation’s own conduct.C. Applicability of Fair Process to Legislative and Other Policy DecisionsAttorney General of Canada v Inuit Tapirisat of Canada[1980] 2 SCR 735CRTC conducted hearings concerning proposed increase in telephone rates to be charged to subscribers in provinces of ON and QC and NWT. CRTC denied some relief sought by plaintiffs so appealed to Governor-in-Council.Issue: is there duty to observe natural justice in, or at least lesser duty of farness incumbent on, the Gov-in-Council in dealing with parties such as respondents upon submission of petition under s of act?When you’re setting rates like for phones, CRTC has certain expertise, can call on people in that area, etc all speak to expert environment on deciding a question that involves pretty technical issues. Imposing a political element in what should be technical exercise. Court confronted by issue that cabinet should conduct self like judicial or quasi-judicial group. Should adhere to natural justice and subsequently fairness. It should conduct itself like any other judicial or quasi-judicial tribunal. Courts stopped short of that on separation of powers argument. Would slow down if had to notify everyone.Second argument: this is in fact a legislative function because the governor in council could act on own volition. Acts through regulations in council, can initiate own action, so must be leg type body.*RATIO: Natural justice (fairness) extends to judicial/quasi-judicial but not executive decisions at such a high level. This case sets limitation on natural justice and fairness. Doesn’t extend to legislative function.Decision: Executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of petition whether those policies be economic, political, commercial or of some other nature.64(1)…any order that the Gov-in-council may make with respect thereto is binding upon the commission and upon all parties.Means if nature of matter before GIC under s 64 concerns parties who have been involved in proceedings before administrative tribunal whose decision is before the GIC by virtue of a petition, all such persons, as well as tribunal or agency itself, will be bound to give effect to the order of council issued by the Governor in Council upon a review of the petition.Discretion of GIC complete provided observes jurisdictional boundaries of s 64(1).D. Legitimate ExpectationsCouncil of Civil Service Unions v Minister for the Civil Service[1985] 1 AC 374 (HL)Facts: Case established doctrine of legitimate expectations in UK. Minister of civil service union was Margaret Thatcher. Doesn’t want people to know plans she has to bring down unions until ready. They never really had right to belong to trade union, but employees had been allowed to join these unions and form other trade associations. In terms of their conditions of work, traditionally consulted by gov although gov not have to. If GCHQ people walked out, would make it hard for her government to function. So decreed their right to belong to these unions taken away from them, but would not be told taken from them. No advance notice or consultation in this change. Employees said she breached established practice and can be no change without consultation. Ought to give right to certain procedural/participatory rights.Legitimate expectation can arise from two situationsGov express promise – how do you get express promise? You ask. Past practice – Always done it this way, therefore believe will be treated in accordance to practice*RATIO: this is aspect of doctrine of fairness, adopted classic exposition that is based on express promise or past practice. Adds to list of rights, privileges, and interests. Now can include legit expectations which are deserving of some or give rise to some procedural protections. Usually all that means is that you will be consulted, given opportunity to speak about a change in practice or opportunity to address why a promise will no longer be carried out. Just process, nothing more.Decision: had legitimate expectation of being consulted, not overturn decision or enjoin government in this case because bought the government’s argument that this would impair national security.Reference Re Canada Assistance Plan (BC)[1991] 2 SCR 525Facts: Federal gov entered K agreement with provinces. Plan set up, criteria established, and feds agree will pay half money to social assistance and welfare expenditures. So provinces design plans, offer plans, provide assistance and feds continue provide half money. Then cost too much. Feds could reduce money to provinces. So feds cap any increases to 5% in “have” provinces: ON BC and AB. Now provs outraged, can’t expand programs and stay within 5 % limit. Argue feds can’t do without consent. Said must consult and agree otherwise veto and stuck with old way. *RATIO: Not substantive doctrine, at best gives you process. If required consent not only consultation, then substantive. Secondly, feds said dealing with leg act. Seek to preclude gov in council for putting a bill before parliament unless consent of provinces, that is interference with legislative act.Decision: certain admin policies are legislative and so no need adhere to legit expectations unlike other times where ruling on particular issue, will call that administrative even though policy based. Courts not want to put themselves between two levels of gov to say who pays what and also not give agreements position in power to inhibit ability of other to carry out constitutional responsibility. Parliamentary gov paralyzed if doctrine of legit expectation could be applied to prevent gov from introducing legislation in Parliament. Fundamental to system of government that gov not bound by undertakings of predecessor. E. Section 7 of the Charter – Fundamental JusticeSingh v Canada (Minister of Employment and Immigration)[1985] 1 SCR 177Facts: Refugees dealt with according to process set out in statute and regulations, involved them in paper transaction unless, on bop, would be probably be successful for claim for refugee status, then could have some sort of hearing. Allowed for fairly small government admin to process thousands of claims. Great demand, heavy burden, limited resourcesIssues: all resources permit to do, is that good enough reason to limit fundamental rights and freedoms?Argument was “everyone”; This is likely based on security of the personUnder significant threat or fear that action will be taken to affect their securityBy this, she gave security of the person an early boost that has some meaning. Not all focused on narrow definition of liberty and lifePut in place a program that accords with principles of fundamental justiceCan’t just have written hearing When you’re dealing with refugee applicant, they are the chief testimonial resource They are the people telling you if they feel a threat to life, liberty or security of person*RATIO: There’s denial of fundamental justice because oral hearing ought to be made available. Because dealing with credibility of applicants and that’s the only way they can make their caseChanged structure, had to, to provide for oral hearings; Cost a lot of moneyIf you commit to fundamental legal beliefs like fair trials in an adversarial system, must put money there. If not, then hollow promiseDecision: Not having enough money is not a good enough reasons to limit fundamental rights/freedoms.Blencoe v British Columbia (Human Rights Commission)[2000] 2 SCR 307Facts: unnecessary delay, rise to charter violation. Common law, no notion of natural justice having element for speedy justice. Charter to make argument that there can be unreasonable delay in proceedings and therefore give rise to violation of guarantee of fundamental justice. Wants to fit his right into s 7.*RATIO:S 7 extends beyond criminal law. Can deal with deportation, apprehension, commitment of person to mental health institution, etcS 7 protects three rights. Not same right with three words, interpreted on own meritWhen see if s 7 violation, must first see if violation of llsp and then see if done according to rules of fundamental justice two stepsNot give rise to positive rights on government to provide certain things for certain quality of lifeConcerned with right of individual to freely make inherently private choicesNot mean can have liberty to do whatever, regardless of consequences for other peopleS 7 refers to core choices that go to your essential being, inherent dignity and autonomy like parental decisions for medical decisions for children, where to establish homeIssue: Was Blencoe’s security of the person affected by state-induced action? Decision: No. Tried to get away, state didn’t drive you to that. Put self in public eye. Your right to move about, pursue whatever occupation you want is not limited by the state. There is no action on part of state which blocked him from making inherently personal choicesYes, it exposed him to some stress, but such is the nature of the beastCourts will not immediately jump to charter if not have to. If can do in common law procedurally in common law natural justice will be good. But where charter very effective is knocking down legislation which may limit the processes to which you are exposed and which you want to complain about. Charter allows you to deal with and invalidate legislation which prohibit certain processes because common law can perhaps interpret these legislative provisions narrowly, but not necessarily get rid of them.F. General Procedural RequirementsKane v Board of Governors of University of British Columbia[1980] 1 SCR 1105Facts: President is on BoG, sat in on hearing before BoG, and remained after Kane and counsel left room. President said didn’t say anything that would influence the decision.Issue: Is this a denial of a fair hearing? What’s the flaw in this concept of this hearing?No man can be judge of own hearing, President is on opposite side of Kane. Party to whom appealing sitting in with panel. Bias, rights to a fair hearing breached. Administrative Procedures and Jurisdictions Act designed to provide scheme of administrative processes that should be followed by all decision makers. Statute refers to all common elements of a fair hearing like notice, disclosure of adequate particulars, adjournment; including reasons and right to receive reasons. Attempt to codify content of natural fairness and justice. Makes clear which tribunals have authority to deal with charter/constitutional challenges. Second point: if you are making a challenge on the basis of the charter or division of powers of constitution, you have obligation to provide notice to provincial attorney general and federal att gen (minister of justice). Must be made aware of this particular challenge so that they can intervene if needed.Though President provided Board with necessary facts relating to Kane suspension and President was at all times most careful not to take part in consideration and discussion of merits of appeal, tribunal not entitled to continue privately to obtain evidence between end of hearing and reaching decision “without notifying parties thereafter of advice given or information received, to give parties opportunity of having further hearing if need be, or commenting on information and making their submissions thereon.” *RATIO: Propositions governing outcome of the appeal:Board free to determine own procedures, will vary nature of inquiry and circumstances of caseTribunal must observe natural justice because of autonomy it enjoys; fair play in actionHigh standard of justice required when right to continue in one’s profession/employment at stakeTribunal must listen fairly to both sides, giving parties to controversy fair opportunity for correcting or contradicting any relevant statement prejudicial to their viewsUnless expressly or by necessary implication empowered to act ex parte, an appellate authority must not hold private interviews with the witnesses. Must not hear one side in absence of other.Court will not inquire whether the evidence did work to prejudice of one of parties; sufficient if it might have done so in the light of the reasonable person.Access to Information by TribunalsRunning up against a trend against criminal law, Stinchecombe effect, disclosure of all information. Do we want to impose a similar requirement on admin tribunals or stat decision makers? Lots of argument, depends on a lot of contexts.If have large regulatory scheme where material before tribunal may be sensitive, may involve highly confidential business information, do you want to make all that information available to interveners at court? Public? Or limit amount? People are reluctant to come forward if feel threat from disclosure.Disclosure becoming important question. The parties ought to have access to and able to argue on same information. Designed to ensure parties make relevant argument, what evidence presented against them.Rules of evidence in admin tribunals not corrupted by the civil rules of evidence or criminal evidence. In admin proceedings, hearsay permitted. Evidence has to be relevant, has to prove something, must be best evidence – fundamental rules that underlie civil and criminal evidence.Right to cross examination: Sometimes only way to make case or meet case against you is tear down case against you, tear down credibility of other party. There is a right, but party not so good at doing that, then supports need of lawyer, which makes it more rmation on record only, presented before tribunal, not independent investigation. Transcript. Fundamental concept: given right to hearing, should give you full opportunity to make your case and meet the one against you.Reasons for DecisionsHistorically, courts not need to provide reasons for decisions because decision makers were not legally trained so too burdensome for them to provide reasons. Now established, generally speaking, natural justice and fairness requires reasons. A threshold for reasons may be established by second Dunsmuir principle (transparent and justified). On that basis, reasons go a long way to making that particular case. Similarly, unreasonable, arbitrary decision can be revealed through a lack of reasons or inadequate reasons which clearly don’t support the evidenceG. Audi Alteram PartemThe right to be heard and right to neutral decision-maker twin pillars of natural justice and related concepts of procedural fairness and fundamental justice.Right to be heard six features:Person affected should be given adequate notice of the hearing When and where hearing take place and what it’s aboutTime to prepareNot always need to give express notice as long as reasonably expected that person affected aware of subject matter and potential consequences of proceedingPerson should be given oral hearing where appropriateNo generalized right to oral hearing vs hearing based on written submissionsOral hearing may be necessary in some situations likeWhen credibility of central importanceSituations where legitimacy of admin process has been undermined and participants must be reassured that their concerns are being taken seriouslyPerson entitled to representation by legal counselNot included right to have counsel provided by gov when cannot afford lawyerIssue is whether admin body can prevent person from being represented by lawyer if wishes to retain oneTraditionally, courts held admin bodies had discretion to permit or deny representation by counsel, but growing tendency to believe that this discretion must normally be exercised in favour of permitting legal rmation upon which admin body basing decision disclosed to person affected by decision Admin bodies sometimes reluctant to disclose information Believe disclosure will harm individual to whom information disclosed (med)Believe disclosure harmful to person who provided them the infoBelieve that disclosure will undermine possibility of frank and confidential exchange of info that they consider to be essential for effective administrationCourts skeptical of first and third reasons, but respect second, but even here try to create compromises that enable person affected by administrative decision to learn gist of case against him without compromising rights of third parties.Problems with information disclosure arise in four typical situationsAgency collected information about a person and that person wants to have access to that information – courts reluctant to allow admin to withhold information even if agency thinks not in best interest of individual to disclose. Agency received confidential information from informant, and person about whom information supplied wants identity of informant – courts prepared to allow admin agencies to take reasonable steps to protect identities of people providing information to them in confidence, especially if needed to protect informer form serious threat of bodily harm. Person seeking disclosure of confidential information that agency has collected about a third party. – normally admin bodies not required by courts to disclose confidential information that may give advantage to competitors of a business that is being regulated. If disclosure necessary for effective operation of reg scheme, may requireAdmin body has had staff prepare reports or assessments in order to assist it in making a decision and a person affected by decision seeks access to this information – courts have some regard for desirability of allowing agency staff to give advice frankly and in confidence, reluctant to require disclosure of draft opinions or advice on question of policyPerson should be provided with opportunity to challenge this information through the presentation of evidence and argument and the cross-examination of witnesses Not required to abide by formal rules of evidence except if expressly required by statuteImportant is adequacy of opportunity to present case, not form the presentation takes.Administrative body should make its decision on the basis of the record, ie, on basis of information adduced to it.To allow for decision to be made based on information not presented at hearing would defeat object of having hearing.But effective administration requires decision-makers to make certain assumptions about world around them and to incorporate these assumptions into their decisions even though not subjected to scrutiny as part of hearing process.Generally desirable for expert decision-makers to be able to use expertise without having to subject views to challenge at every point in proceedings. Way in which demands of fairness and effectiveness reconciled is through doctrine of official notice concept which allows administrators to take account of information that has not been part of hearing process where it is convenient to do so and where information itself is not the subject of the controversy.Where decision-maker seeks to rely on factual information concerning the specific events at issue (information sometimes described as adjudicative facts) that information must be part of record. Where decision maker seeks to rely on assumptions based on general bg information (sometimes described as legislative facts) or on statements of law or policy, not necessary to have this information form part of record but necessary to give those affected by decision adequate opportunity to challenge these assumptions if they are controversial and central to decision being taken.Person affected should know case against him or her and be given adequate opportunity to respond.Cardinal v Kent Institution[1985] 2 SCR 643Facts: Administrative dissociation/segregation (solitary confinement). Placed in this situation as a result of incident occurred in another institution. Decision placed immediately no hearing because hostage taking incident involving use of weapon against corrections officer. Process for that being reviewed regularly. Review to determine if form of disciplinary action should be continued. Here, recommendation of segregation review board recommended returned to normal population. Recommendation, not binding. Director continued to order stay in solitary. Now, dissociation reviewed, what is a fair hearing constitute (no longer emergency situation). Doesn’t know why director ordered continued dissociation, need reasons*RATIO: Denial of a right to fair hearing must always render decision invalid, whether or not it may appear to reviewing court that hearing would likely have resulted in different decision. Not for court to deny right and justice on basis of speculation as to what result might have been had there been a hearing.Decision: ntwst this is prison situation, director is under duty of procedural fairness. Procedural fairness will require him to offer reasons for his decisions. These individuals can then make argument concerning that particular decision. Courts are prepared to recognise a small degree of liberty even in prisons. Singh v Minister of Employment and Immigration[1985] 1 SCR 177Facts: if seems likely that they’ll get refugee status, do a hearing to make sure; legislation seems support minimal form of natural justice and fairness; fundamental justice includes fairness and natural justice; supreme law of the land violated and courts willing to strike down legislation that may give rise to violation; Charter very effective dealing with legislative justice on due process and fair procedureDon’t only have fundamental freedoms and rights based on money; Hearings required and oral hearings required because chief testimonial resource is refugee applicant; See if threshold for refugee status is met. Where credibility involved, fundamental justice requires credibility determined on basis of oral hearing.Beaverbrook Ltd v Highway Traffic and Motor Transport Board[1973] 4WWR 473Right to notice of hearing: Notice must be sufficient for to understand have right to participate in hearing. Facts: Notice given but under circumstances, inadequate. Property use frozen pending development of highway changes; owners would have liked to have spoken to that. Not buying, not compensating, just taking away whole purpose of property ownership. Nowhere specifically stated that notice should be given to all persons who own, or have interest in land situated. And there was an error in describing the land in the newspapers. But even without that error, notice insufficient.*RATIO: Notice required unless statute expressly dispenses with it. Mere silence of the statue not enough to do away with notice. Courts on strict side when comes to getting affected individual every right to argue against this taking of their property. Not enough if only in newspaper. Need letter or email. No big deal for government, land titles system. Decision: Overrule because not adequate notice.Re Wilson v Law Society of British Columbia(1974) 47 DLR (3d) 760 (BCSC)Facts: Particulars tell you how to make your case and meet the case you must confront. If told have a hearing and they say you’ll find out where you get there. Not good. Such a description (s 48 page 245 left column) encompasses every conceivable dereliction. Onus on law society to prove you are guilty of professional misconduct. Because of lack of particulars, not adequate notice of what she must deal withProblem is court saw this application as being somewhat prematureThere was still time for ask for particularsIf confronted with notice that doesn’t say much, first thing you do is if can find particulars. In this case, contact body of law societyCan then argue over adequacy of those particulars, but must take first stepOr ask tribunal to provide law society for particulars, then adjournment so can prepare better In this case, failed to take these steps, so court said premature, but agreed with her applicationCanadian Pacific railway v Vancouver (City)2006 SCC 5Facts: CPR over time said traffic declining, probably entered some negotiation with city, discontinued rail operations. CPR said no longer going to run a train there, so develop land for commercial or residential purposes. Or, asked city if they wanted to acquire it, could use for public purposes. Nothing happens. Don’t want run railway, city doesn’t want acquire, city wants allow it to continue as pastoral space providing walks, nature trails, etc. City put bylaw which froze it. Made public hearing (although not required under Vancouver Charter, requires duty of fairness, so do that by public hearing). Put in an advertisement in Sun and Courier newspaper. CPR is restricted to uneconomic uses of this land. CPR says not treated fairly but also want to challenge bylaw on the basis they were denied a fair hearing.Railway had every opportunity to see what documents were in front of city council. Ddequate notice. Involves fundamental violation of a property owner’s rights to use property. Would argue for very strict technical compliance. On the other hand, dealing with legislative body, matter of interest to many parties, not only railway, has to deal with fairly broad with people with interest in land. Fair degree of deference for municipalities dealing with issues dealing with local nature. So CPR entitled to notice but sufficient. What required is fairness, not perfection. Did not hamper CPR in making or meeting case for bylaw. Notice was sufficient. CPR failed in onus to say it was hampered in exercising right to a fair hearing.Re Latham & Solicitor-General for Canada[1984] 2 FC 734 (TD)Facts: Prison situation; allowed out on day parole; suddenly aware that some allegations made through police which called into situation by child welfare authorities who say concerned about welfare of child; Turns himself in, goes back to prison; Doing everything to diffuse situation. Warrant of apprehension and suspension of parole. Provision for post suspension hearing. Notice simply say reason for day parole is to prevent a condition of parole. Whole point of a post-suspension hearing is for an action taken quickly is indeed justified. So can be a calm, complete examination of facts that he can make his case and case against him. But not told what case is against him in any specific way. When asked them what they were trying to protect/prevent, said quite satisfied of information received. Not given any disclosure. Effectively estopped form having a hearing. How can you have a hearing when you don’t know what you’re supposed to say or rebut?Charter comes into this particular case because some suggestion that parole regulations imposed some limitation on common law fairness. If something in regulation/legislation seems to limit fairness, could argue these ought to be very strictly construed. Or can accept them as being a pretty blanket denial of fairness/natural justice. Get charter involved otherwise those concepts can be limited by legislation (primary or subordinate). Liberty at stake, s 7.Maybe sometimes need protect confidential sources. Just provide gist of information against person. Make summary protect informant, but gives enough information to allow person to know what defending.Charkaoui v Canada (Minister of Citizenship & Immigration)2008 SCC 38Facts: Suspected of activity which posed a threat to security of Canada; One of these security certificates (admin acts), he is picked up and detained; did not provide enough opportunity to challenge certificate. Decision talking about nature of disclosure he received and whether sufficient to comply with obligations that he could indeed deal with reasonableness of issuance of certificate. Should we adopt same standard for admin proceedings as we do for crim proceedings (Stinchcombe)? Where information party wants access to highly sensitive, and disclosure of the information can pose a real threat to national security. Concern was that notes of CSIS officers had been destroyed in accordance with CSIS policy. Not have full disclosure sufficient to challenge the certificate. CSIS defends on basis that have policy, shouldn’t have all these notes sitting around. Those notes are the best evidence; immediate impressions of person conducting interview; That evidence ought to be available to the reviewing judge along with so called summary (that’s polished evidence).*RATIO: Right of fundamental justice denied for lack of disclosure; where you have access to best evidence, should not destroy, keep to refresh officer’s memory and inform court. Duty to disclose entails a corollary duty to preserve information, exhibits, recordings, investigation notes and any other relevant evidence. Whether or not constitutional guarantees of s 7 apply not turn on formal distinction between different areas of law. Depends on severity of consequences of state’s actions for individual’s fundamental interests of liberty and security and life. Security certificate procedure can place these rights in serious jeopardy. To protect them, becomes necessary to recognize duty to disclose evidence based on s7. Procedural fairness includes procedure for verifying evidence adduced against him or her. Also includes disclosure of evidence to named person in a manner and within limits consistent with legitimate public safety interests.Court was not going to say same standard disclosure in crim pertain here. No obligation to disclose all information, different circumstances; but best evidence rule. If worried about breaching confidentiality, court can review and determine what disclosed. Should generally support the process of full and complete disclosure subject to other concerns that may need to be accommodate to a gist report, or subject to court deciding some information can’t be disclosed in security way. Or business, can’t openly disclose because harm industry. But there is a way to get that information to affected party.Decision: Appeal succeeds. CSIS bound to disclose to ministers responsible all information in possession regarding person named in a security certificate. CSIS must retain all operational notes and disclose to ministers for issuance of security certificate and subsequently to designated judge for review of reasonableness of certificate of need to detain named person.Disclosure:Trend towards greater disclosure; courts held this is key aspect of participatory rights; disclosure required for effective hearing. Certain circumstances where may be waived e.g. national security, however disclosure still be followed to extent required for effective hearing. If no disclosure, you have a good ground for judicial reviewAdjournmentWhen unable to make case, or meet case against you. In admin proceedings, must come up with a good reason for, and in a timely fashion i.e. have new information, or counsel is ill, etc. Convenience is not a good reason, and courts will be more reluctant to grant one the later in the proceedings it is made.Re Piggott Construction Ltd and United Brotherhood of Carpenters and Joiners of America(1973) 39 DLR (3d) 311 (SKCA)Facts: March 29, Piggott and solicitor knew hearing on April 4. Never advised Board date not satisfactory. First indication Board had that April 4 unsatisfactory was morning of day when solicitors appeared and asked for adjournment. Board said would adjourn if parties could agree on a date. Appellant union would not agree to adjournment. So board refused application for adjournment. *RATIO: Where applicant alleges there wrongful refusal to grant an adjournment, general rule, for applicant must show good reason for the adjournment not attributable to his actions. Issue: Whether or not refusal of Board to grant adjournment wrongful exercise of its discretion. If so, is such refusal resulted in denial of natural justice?Decision: Board exercised a discretion it had and did not do so wrongfully. Waiting until morning of April 4 to ask for adjourn was not reasonable. Need for adjournment did not arise unexpectedly.CUPE Local 30 v WMI Waste Management of Canada Inc(1996), 178 AR 297 (CA)If tribunal says that a party has no standing, not denial of a hearing. Issue of standing; party seeking adjournment not act appropriately.Facts: application for approval to develop and operate waste management facility was made to Edmonton Local Board of Health under Waste Management Regulation in 1992. Prior to granting approval, EBH published notices inviting comments on development. In response, appellants made submissions objecting to proposal. EBH approved project and appellants filed notices of appeal with Public Health Advisory and Appeal Board (PHAAB). Then PHAAB notified parties that hearing would be conducted to deal strictly with issue of whether or not appellants have status under Public Health Act to Appeal. Advised to bring written submissions at that time. At hearing, WMI filed brief outlining submissions why appellants not have status to appeal. Appellants immediately sought adjournment to review brief and seek legal counsel. Request denied. Chambers judge held failure advise appellants that status challenged by WMI, failure to do so not a flaw. Failure to identify party challenging that status did not impede appellant’s ability to justify status. Since appellants understood status was being challenged, source of objection irrelevant. Adequacy of notice and appellant’s understanding of it is demonstrated by fact that appellants appeared at hearing prepared to address question of their status, no error of law in that decision. Denial of adjournment not breach of natural justice. Notice provided adequate as to issues to be addressed, and as to its timeliness. Parties had adequate opportunity to seek legal counsel in advance, chose not to. Appellants not caught by surprise and not entitled delay proceedings through own failure to see counsel in advance.Decision whether to adjourn is discretionary power of tribunal. Blencoe v British Columbia (Human Rights Commission)[2000] 2 SCR 307Does delay stand as an independent ground for review under natural justice of fairness?Facts: Inordinate delay without explanation can give rise to a stay in criminal proceedings; substantial period passed since allegations made against Blencoe; argued that delay breached right to natural justice; Does a delay have the same consequences in an administrative context? The issue is psychological stress and inconvenience caused by the stigma of his offence; Delay must cause an inability to defend the charges for a significantly long periodIt is accepted that principles of natural justice and duty of fairness include right to a fair hearing and that undue delay in processing of an administrative proceeding that impairs fairness of hearing can be remedied. But need unfairness so obvious that there would be denial of natural justice or in which there was abuse of process such that would be inappropriate to put the respondent through hearings before Tribunal. Has right to fair hearing been jeopardized? Must have proof of prejudice demonstrated on a sufficient magnitude to impact on fairness of hearing. Unacceptable delay may amount to an abuse of process in certain circumstances even where fairness of hearing not been compromised. Where inordinate delay has directly caused significant psychological harm to person, or attached stigma to person’s reputation, such that human rights system should be brought into disrepute, such prejudice may be sufficient to constitute abuse of process. In cases where there no prejudice to hearing fairness, delay must be clearly unacceptable and have directly caused a significant prejudice to amount to abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.*RATIO: Must look at the nature of the proceedings – some circumstances will allow only for short delays e.g. where key eye witnesses are available; Court held that the delay in this case could be reasonably explained – tribunal was in a stage of transition, Blencoe’s actions also contributed to delay; Blencoe failed to meet onus in proving that the delay was “inordinate” and fault of someone else; Applicant must show that there was some real prejudice, and that they did not themselves contribute to the circumstances. To constitute a breach of duty of fairness, delay must have been unreasonable or inordinate. Respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings. Contextual factors important to consider. No extended period without any activity in processing of complaint. Ongoing communication.Open/In Camera HearingEssential element of justice is public access to court proceedings, to bolster confidence in system and avoid arbitrary decisions. There are some circumstances in which a court will close its proceedings – due to the nature of the proceeding, or to protect some confidential information.Smith v Jones (SCC) – not in casebookVery few times that SCC held closed appeal hearing; criminal matter, ruling on question of confidentiality (solicitor/client privilege); psychiatrist conducted examination of client, gave report to lawyer stating that he was a delusional/dangerous man who will reoffend; wanted to report him to authorities, however lawyer argued that he couldn’t because he was hired as consultant; Can doctor report client to authorities? Court held there are some exceptions: imminent risk of bodily harm; but very high threshold.Hearts of Oak Assurance Company Ltd v Attorney-General [1932] AC 392Held an in camera proceeding justified, not breach NJ. Grounds for seeking “in camera” proceedings (examples):Sensitive information e.g. medical mattersEffect on reputation e.g. for professionalsWeigh public right to openness with sensitive nature of proceedings. Lawyer disciplinary hearings open to negate public suspicion that legal profession is old boys club where everyone takes care of each other.*RATIO: Commissioner may institute inspection, not only when in his opinion there is reasonable cause to believe that a stat offence committed, but also if in his opinion there is reasonable cause to believe that a statutory offence is likely to be committed. Appropriate to conduct in private an investigation to examine into a report on affairs of society. Designed to inform mind of responsible official so that may be able to decide whether should or should not take any overt action, especially when investigation may be initiated merely on reasonable suspicion of probability of some irregularity having occurred.Main considerations:Important to secure that the efficiency of procedure for purpose in view is not impairedBut not less important to ensure that fair treatment is accorded to all concerned.Both can be attained in holding such inspections in private. Might be irreparable harm unjustly done to reputation of a company and much anxiety unnecessarily occasioned to its policy-holders by giving publicity to such preliminary investigations.Re Edmonton Journal and AG for Alberta(1984) 5 DLR (4th) 240 (ABQB) aff’d 13 DLR (4th) 479 (ABCA)On occasion courts have in camera proceedings for sensitive matters, but threshold very high. General access to courts not also mean there is general access to government –gov’t highly sensitive about information it has. Today there is greater demand for information by public. Issue was some sensitive medical information about the deceased, court held part of the proceedings in camera. Statute will sometimes provide for in camera proceedings; could argue this rule denied natural justice; at end of day statute permits this limitation, which can be interpreted narrowly to limit effect, however the only way to get around this is prove a charter claim. Group of press challenged a bunch of these provisions and court removed a lot of them; general rule; open hearing, in camera proceedings exception, onus on applicant.A coroner’s inquest or fatality inquiry is not court proceeding in Canada. If Legislature chooses to assign certain investigative duties to a coroner’s inquest or a fatality inquiry, no constitutional compulsion that such duties carried out in public. If nonetheless legislature chooses to stipulate that those duties be carried out in public, legislature having made decision on grounds of legislative policy and not in response to a constitutional norm, court must treat procedure decided upon as one which is susceptible to exception created by Legislature without such exception being open to attack on constitutional grounds.London (City) v RSJ Holdings2007 SCC 29Facts: City submitted that meetings fall within exception, which allows for closed meetings where subject matter under consideration is a matter in respect to which a committee or council may hold a closed meeting under another act. There is imperative that normal business of municipal government meetings transparent and accessible to public. May close meeting if under one of seven exceptions. Can dispense with notice so council may act expeditiously in passing an interim control by-law whenever circumstances may require that it do so.Argument was noncompliance with a statute that was designed to provide for transparency and openness. SCC emphasized the importance of openness, which was backed up by statute, therefore court will be very reluctant to grant exceptions. Clear distinction b/w right to notice and right to participate through an open process. No advance notice or hearing was required. However, all discussions conducted in open public session.Municipal law was changed to require municipal governments hold meetings that are open to public to give robust democratic legitimacy. Does not spring solely from periodic elections but also from a decision-making process that is transparent, accessible to public and mandated by law. When municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision and such decisions even when intra vires, less worthy of deference. RSJ not have right to notice but had right to transparent and open process.Right to CounselLawyers have created greater formality and less accessibility in administrative context; brought greater cost to process, led to greater complexity; argued lawyers made admin process more effective.Joplin v Chief Constable of Vancouver(1982) 144 DLR (3d) 285 (BCSC)John Law doesn’t agree with reasoning; Right to counsel doesn’t mean that tribunal has to provide a lawyer or pay for their fee, simply means there is opportunity to be represented. Greater recognition of lawyers in admin context also based on nature of proceedings: complex regulation/procedures. Right to counsel is luxury aspect of natural justice, is not a non-distinctive role, the lawyer’s role may be subject to some oversight. There is a regulation in judgment that precludes use of counsel in this setting, and court held that this was breach of natural justice.Law disagrees that every regulation passed by legislature must be subject to NJ, solely because NJ/fairness is highly contextual question, dependent on the facts of case, and legislative functions very broad. Growth of paralegal profession and legal “consultants” e.g. common in immigration cases; federal gov’t has regulated these professions, however individuals have a right to be represented by whoever they like. Lawyers are just too expensive.Judge wants to approach case without recourse to charter and use general law. AG concedes that in absence of clear language, Legislature is not presumed to have authorized Lieutenant-Governor in Council to make regulation which abrogates the common law rights of our citizens to justice and fairness.In Re Bachinsky et al and Sawyer, Shannon J found denial of representation was breach of natural justice for the following reasons:Charges serious and may affect reputation and livelihood of accusedDiscipline Code establishes a formal procedure similar to court proceedings and that intention was to provide for hearing similar to at trialEssential to fairness that a person charged with serious offence should have trained and independent representationThe fact that right of appeal was on the record of the hearing made argument that depriving accused of counsel not serious untenable.If a senior officer of this police force considers complaint serious enough to engage this formal hearing procedure with its full panoply of legalities, then per se serious, and this is so regardless of nature of alleged offence or maximum penalty recommended. (Interesting).Policeman as layman, cannot be expected properly to master laws of evidence and criminal procedure in own defence. Justice and fairness cannot tolerate a procedure where a layman expected to deal with legal concepts which are strange to him, and at the same time advise himself objectively. Judge does not agree that in some older cases there is notional contractual acceptance of an unfair disciplinary procedure, and that members of a police force give up rights when agree to serve in such a force. Admin Tribunal and its CounselTo what extend can tribunals use legal counsel? Should given legal advice be disclosed in the decision?Yes, protects authenticity of the decision; if it’s something that tribunal really relying on, then should be disclosed; err on side of disclosure, unless dealing with sensitive mattersWhat about solicitor-client privilege? Only binding on the lawyerArgument made lawyers should draft decision, rather than laypersons on tribunal, however not if took part in prosecution of matter; not a good practice though, unless lawyer has sat through whole proceedings lawyer is only there to advise on law, to make sure that it is properly applied.Bovbel v Canada (Minister of Employment and Immigration)[1994] 2 FC 563 (CA)Facts: Process set out to ensure good and consistent writing techniques consistent with law. Board agreed with this because not mandatory, and restricted to law, rather than dealing with facts – members of tribunal still free to make own decision. Lawyers there to simply translate decision in clearer fashion. As long as no reasonable apprehension of bias e.g. if lawyer has appeared before the tribunal before, etc.Board’s policy encourages members of board, great majority of whom have no legal training, to submit reasons for decision to Legal services Branch (composed of lawyers who do not participate in hearings of the board) prior to putting their reasons in final form. Primary focus in reasons review will continue to be identification of errors of law, areas where member should be made aware of existing jurisprudence and advising member generally on legal issues arising from the case.No doubt that participation of “outsiders” in decision-making process of an administrative tribunal may sometimes cause problems. Decisions of tribunal must be rendered by those on whom Parliament has conferred power to decide and their decisions must, unless relevant legislation impliedly or expressly provides otherwise, meet requirements of NJ. However, when practice followed by members of admin tribunal not violate natural justice and not infringe ability to decide according to their opinion even though may influence that opinion, cannot be criticized.Evidence GatheringAdmin tribunals not usually required to follow legal rules of evidence; non-lawyers not able to deal with complex rules; however there are some basic rules that the tribunal must follow:Evidence must be relevantEvidence must prove something i.e. has probative valueEvidence must have some reliability (civil/crim best evidence rule, in admin law more flexible)Note: tribunals can consider hearsay in admin proceeding when looking at all relevant evidence. Must have some evidence to make decision; having no evidence is error of law and grounds for review. Weight accorded to evidence up to discretion of tribunal; courts are not there to question how relevant evidence weighed; will only interfere if weight was given to entirely irrelevant evidence. Admin adjudicator shouldn’t use evidence has received but not made available to an affected party to allow for refutation. Planning Law and Practice in Alberta (F Laux)Adequate Time for PresentationsLength of presentation bears inverse relationship to effectivenessRobertson v Edmonton (City)Edmonton had five-minute rule. Rule did not by itself render planning bylaw hearing unfair, but could be, in that case was contributing factor. Objectors told by municipal administrators there would be no time limit on presentations. When one rose to speak later, informed of five-minute rule, to which he objected to no avail. While setting a time limit as a matter of policy is not by itself objectionable, that limit should not be arbitrarily or inflexibly applied. Each hearing presents a unique case.Receipt of Evidentiary Material from One Side Outside the HearingEach side entitled to know what is before court, and to correct or contradict any relevant materials that might be prejudicial to its position. Same right attaches to parties before quasi-judicial body, and where that right transgressed, resulting decision will be set aside by courts as s denial of fair process. Source of communication, content and all surrounding circumstances must be taken into account in determining whether material communication to council outside hearing context is denial of fair hearing.While may be appropriate for council to seek out “advice” from staff following public hearing without being obligated to make affected persons privy to that advice and to afford them opportunity to respond, it is unlikely that an Alberta court would countenance such action where the advice contained fresh material of an evidentiary nature.Council Obtaining Information on its Own Initiative Outside the HearingNo difference in principle between an administrative body obtaining evidentiary material outside the hearing through one of the protagonists or through its staff, and obtaining through own efforts.Taking a ViewGeneral rule is that quasi-judicial tribunal breaches fair hearing obligations if conducts private inspection of property or site which is in issue before it, and where such inspection is in the absence and without knowledge of some or all of the interested parties. Improbable, however, that, without more, such a rule applies to a municipal council. Dicta in Murray saying that development appeal board or its individual members may also visit subject site on own initiative without running afoul of fairness rules.Lobbying of Council Members by Interested PartiesAlmost all reported cases in which tribunals found breached principles of fair procedure in receiving ex parte evidence involved tribunal as a whole. But logical that where only one or several of tribunal members receives such evidence, same results should flow. So if one member receives evidence from one party which is not disclosed to the other parties, and that member acts or appears to act on basis of evidence, decision of tribunal may be tainted and subject to being set aside. No doubt that bias of one board member taints whole board. Summary (Law)Important that general rule you understand: when receive information contains original information that is material to discussion, ought to be disclosed to all partiesSome exceptional cases in which courts not required counsel disclose contacts or receiving unsolicited materialDeference to fact that municipal councils are legislative and adjudicate in some mattersRemember context is everythingNo point to hearing unless parties fully aware of the material before themGrand Council DecreesLarge regulatory proceeding; Licencing of hydroelectricity for exportIssue: whether or not tribunal acting on evidence in making its determinationArgued that tribunal should look at social cost, but didn’t make decision on evidence to that matter. Parties are unwilling to broadly provide all kinds of commercially sensitive information out in a public forum and so they’re often reluctant to provide all the evidence and other party go on fishing expedition. Industry guards financial information, because of competition. In this case, court said not correct to say no evidence. There was evidence before tribunal. That evidence was its methodology in conducting its examination of social cost. So you can challenge methodology and could do that. Moreover, Entire proposal had been considered by gov of Quebec and approved; so there’s an outside review. Court satisfied that that was sufficient evidence to argue this. So not correct so say not evidence. We see an adjustment in natural justice and fairness in the nature of proceedings and context. Clear flexibility and willingness on part of courts to allow a lesser form of evidentiary rules to apply.Tribunal acted on the basis of no evidence with respect to the cost of granting a licenseCourt held that there was some evidence, that the tribunal had the methodology used by the applicant to find out if they had sufficient funds to cover the costs; method had also passed an internal review; in ignoring this, the tribunal made an error of lawCross-ExaminationIf you can undermine credibility of witness, then really undermine that evidenceCould compel tribunal think evidence unreliable, not relevant, and then receive less weightThey’re interested in if acted on basis of evidence at allTo extent that cross-x allows you to make your case and more importantly to meet your caseMay be the only way to meet case, then tribunals should allow cross-x in proceedingsMurray v MD Rockyview(1980), 21 AR 512 (CA)Facts: chairman of particular proceeding ruled that no cross-x would be permitted, sometimes ok because not absolute right to cross-x. Party could only challenge through rebuttal.Court held no absolute right to cross-x; But ruling had been made in advanceFor purposes of efficiency, not making them unduly formalistic or overly involvedA blanket ruling in advance precluding all cross-x, therefore no opportunity should situation arise to admin cross-x as a necessary aspect of these proceedingsIt was the blanket denial before proceedings that offended the courtCourts will give admin tribunals a fair degree of latitude on how to deal with cross exWill allow if party can show was no other way of addressing evidence prejudicial to their caseThis is usually when credibility of a witness in issueCross-x is highly contextual, so blanket denial not goodContext is everything in terms of establishing these aspects of natural justice/fairnessSometimes, chairs who have said can’t ask question to witness, I will put questions to witnessHeld to violate natural justice/fairness because not your questionSteps into shoes of one of parties, offends whole concept of a hearingDecision: board chair saying no cross-ex allowed should not have been made. Fairness dictated that officer be open to rigorous cross examination.Re B and Catholic Children’s Aid Society of Metropolitan Toronto(1987), 59 OR (2d) 417 (ON Div Ct)Facts: Man allegations have sexual relations with minor; Evidence in relation to these allegations deemed not enough to proceed with criminal allegations; Gentleman uses admin proceedings to get name off register; In course of proceedings, confronted by social worker who makes the allegations; He on the other side simply proclaims his innocence, denies allegations, unfounded/unfair/without support. But his name not removed from register. Child is best witness to testify as to abuse? Concern that we don’t want people to be convicted without enough evidence. Child not called because had changed her testimony. Perfect situation for cross-x. Undermined that allegation. He had no other evidence. Decided not to bring child. Should have the ability to test the evidence given by the victim. The fact that he was to makes this an unfair hearing; His first hand evidence vs social worker hearsay evidence.Decision: Appellant denied right to cross-examine alleged victim, admission of hearsay evidence amounted to denial of natural justice; hearing fell below minimum requirement of fairness.Keeping a RecordTranscripts are incredibly expensiveOne of the major elements in cost other than lawyers/feesIf you’re a lawyer, why would you want to get a transcript?Can reveal bias, which may not come out in the decisionThis question relates more to appropriateness or completeness of a record before an appeal tribunal or a court on judicial reviewSo a way of party making their argument which they would be unable to make without transcriptMust balance against cost of efficacy of proceedings and financial costAlberta Labour Relations Board v IBEW(1991), 83 Alta LR (2d) 253Natural justice not require verbatim record of proceedings. Principles of NJ not violated by board not having made verbatim record of proceedings.Court held that transcription of a board hearing was a procedural matterEven if one of the parties said will pay for it, not the way to run admin justiceThe policy was that no recording/transcript madeChief failure that party challenging the case, failed to say prejudice by lack of transcriptionYou have to be able to tie the failure to a harm, some prejudice to your positionNot just because courts do it we must all do itHow to establish prejudice?I have a right of appeal and I’m unable to fully exercise that right ORJudicial review available to me but I can’t point out flaws in proceedings because of absence of information before a court on judicial reviewThat’s applicant party’s onusCanadian Union of Public Employees, Local 301 v Montreal (City)[1997] 1 SCR 793In absence of a statutory right to a recorded hearing, a party’s rights to natural justice will only be infringed where the court has an inadequate record upon which to base its decision.The board had a practice of doing this but in this case had failed to do so, human errorWhere a broader definition of “the record” has been provided so the court has a very fulsome record before itSo exhibits, evidence and reasons can be brought in under broader definitionThis insures that all of material at hands of tribunal forwarded to court on judicial review so it’s all before the courtAlso, courts have power, where feel that record inadequate, that it be expandedSometimes parties can expend by affidavit elementsCourt said here, we don’t have a statutory direction that recording be keptWe have a practice of tribunal to do thisIssue: whether Respondent denied a ground of review by virtue of absence of a recording of hearing before council.If has sufficient information to deal with challenge to the decision and grounds expressed in that challenge, end of the matterYou have parties providing affidavits as to what transcribed before hearingsCan cross-x on these if you wishBut there was information here so court can judge that challenge could be made or notFailure to conduct a verbatim recording or provide a transcript not failureRemember that this is not something to expect in all tribunal proceedingsRight to be Heard by Person who DecidesWhat’s point of hearing if it’s in front of someone else or someone who did not hear all the necessary material; if not in front of a decision maker, it’s a hollow promiseJudge who decides the matter must be person who hears the case. Where courts have said will permit in certain settings someone else to conduct hearing. Then pass report to person making decision. That person becomes a filter, not your words, not your case. In that sense, the fairness of proceeding is challenged. Old case is Mehr, which deal with sometimes troubling practice of number of members of tribunal who hear one part of hearing sits different from number of members who hear another part of the hearing. In Mehr, had hearing over a number of days, membership of particular law society discipline body varied from 6-9 members. At end of day, appeared that all 9 participated in decision. Held that this was against natural justice because someone who did not hear cannot make decision. Better practice is saying out for the day, out proceedings. Use of Policies to better manage large tribunals whose membership may be full in effort to ensure a certain consistency of decision making of this tribunal.Bovbel (previous)Make suggestions vis a vis statutes, clients, ie to enhance decisionTo provide parties with a better decisionThese particular policies have been generally viewed by courts as a positive developmentAt end of day, get a better admin process and a better decision but there are risksRisks that parties who didn’t hear the matter may influence the decisionThis violates the principle of he who hears must decideIWA v Consolidated-Bathurst Packaging Ltd – the group discussion, allowed one.[1990] 1 SCR 282Issue: whether impugned meeting vitiated the first decision rendered by Board on ground that the case was there discussed with panel members by persons who did not hear the evidence or the arguments.Have policy, pre-existing views as to what constitutes an unfair labour practicePeople demand they be treated with level of consistencyOne trial court can’t bind another trial courtHere, one panel can’t bind anotherMust have some policy that allows for internal consultationSo ensure everyone working on the same sheetMust also be cognizant of fact that panel must have ability to make own decisionTrial and appeal court differed in opinion about whether or not consultation something should pass musterSCC in this case did several important thingsAcknowledged that tribunals like labour relations board must have a fair measure of control They’re in the best position to decideWhat is necessary for them to do their job effectively and efficientlySCC said not blindly issue edicts saying that these kinds of policies that provide for consolation, no issues of law and policy are bad. Contrary, think they’re good. Think that properly measured, they actually improve the administrative processThis policy is designed to provide some measure of certainty, stability and uniformity amongst all of these panels of ON LR Board and the actRationales:Take advantage of acquired experience of all members: Rules of NJ should not discourage admin bodies from taking advantage of accumulated experience of members. Should reconcile characteristics and exigencies of decision making by special tribunals with procedural rights of parties.Large number of persons who participate in Board decisions creates possibility that different panels will decide similar issues in a different manner.Meeting called to discuss policy ramifications of the panel decisionCareful discussion taken to ensure not go over factsAt end of day, panel can decide No votes takenNo other means to compel consensusThe full board meeting was not compulsoryYou could refer a matter to seek advice of othersTo get their viewsCourts are going to recognize varying degree of latitude in this caseCollegial enterprise in which people want to get the views of others who didn’t hear matterNo coercion hereRelevant issue not whether full board meeting can cause panel members to change minds but whether practice impinges on ability of panel members to decide according to their own opinions.Generally such discussions on factual matters constitute breach of rules of natural justice because allow persons other than parties to make representations on factual issues when have not heard evidence.Rules of NJ must have flexibility required to take into account institutional pressures faced by modern admin tribunals as well as risks inherent in such practice.Tremblay v Quebec (Commission des Affaires Sociales)[1992] 1 SCR 952Facts: Two-person panel not a good idea, you may end up with a tie. Still proceed with 2, make a decision, unanimous. Didn’t go to lawyer because lawyer was away. Went to chairman of commission, judge; He reads decision and doesn’t like it. He writes memo to a full board consideration. Then he puts out his position. And majority of commission agrees with him. One of members of panel who should have freedom to decide, changes mind. Now tied decision. Rules say, in such a setting, President of commission decide. Change of decision 2:1. So a person who did not hear this matter, has just in effect, changed the decision. The differences with consolidated Bathurst are obvious. Members of the panel’s independence, ability to decide, free of influence of others was significantly undermined by this process. The referral of the draft decision to the full board meeting was compulsory, mandated. As a result, there is systematic pressure brought to bear on these panel members. Votes are held so he could feel really out of it. Essentially in this case, reflects president’s view when he didn’t hear. Compulsory consultation creates at the very least an appearance of a lack of independence, if not actual constrain. Voting, taking of attendance and keeping of minutes not recommended.SCC in other cases reflected Consolidated Bathurst decision, like Ellis Don. Consultation cannot be imposed by someone in admin hierarchy. Consulting process must be on questions of policy, not facts, etcEllis-Don Limited v Ontario (Labour Relations Board)[2001] SCC 4Other issue is notion that if see draft decision changed result of full board consultative process, that doesn’t immediately put onus back on tribunal to establish it had acted reasonably.Court says presumption of regularityIt is for the applicant to prove by direct evidence that the decision stemmed from improper interferenceRules concerning institutional consultation: such consultation does not lead to an apprehension of bias or lack of independence provided the following rules are adhered to:Consultation process cannot be imposed by a superior within the administrative hierarchyConsultation process must restrict itself to questions of law and policyOn questions of law and policy, the members of the hearing panel still retain freedom to make own decisionIf new issues raised during full board discussion, then parties must be notified and allowed the opportunity to respondRight to Reasons Reasons have historically not been seen as an aspect of natural justice and fairnessPredicated on basis that courts are not required themselves to provide reasons although they do because gives greater confidence in judicial process, that decision not arbitrary, but made in principled and reasoned fashionRight to reasons has effect on quality of admin decision makingReasons necessary to affect right to appeal or judicial reviewReasons also helps you with certain grounds like bad faith, attitudinal bias, consideration of irrelevant evidenceIn AB, admin procedure and Juris act, see stat provision saying must provide reasons for decisionArgued that tribunals ought not required in all cases because puts too heavy a burden on tribunal and its membership, many of whom PT and not legally trained, and onerous obligation to imposeAlso suggested that a right to reasons can make people less candid if have to actually stateBaker v Canada (Minister of Citizenship and Immigration)[1999], 2 SCR 817Baker said in certain circumstances, reasons may be a part of natural justice and fairnessIn certain circumstances, procedural fairness will req tribunal, and failure to do will vitiateWhere are these circumstances? Where court deems indiv right/interest is of significance. So there is hierarchy of rights and interestsApplicant has been able to establish that reasons essential to effect a right of appeal/reviewNo reasons given in Baker, in absence, some UK courts say we must believe that something untoward has occurred. So rebut presumption.Or you could do what SCC did in baker and that’s say don’t have reasons, but we do have notes of hearing officerSo unless you want to provide us with reasons, we will take these as the reasonsHappened to fit with what decision would be in baker, strong court, rights of her children had not been properly addressedSo to degree that notes showed that and in absence of minister or department that there were other strong countervailing reasons, sufficient for purpose in that caseHow does this fit into our review for error of law or unreasonable decision?In other words, do reasons support this law concerning review in substantive matters? Law says yesRemember what threshold isCourts prepared to defer to expert tribunalGive them more room to make decisions to interpret legal matters that flow from legal obligationsAll court asks under doctrine of deference is decision falls under range of reasonable outcomesAnd that process is intelligible, justified or transparentWhat better way to show you’ve made a reasonable decisionWhat better way to show that process you’ve followed was transparent, justiciable What if reasons are inadequate?There is case law arising out of application of administrative procedures actRequired reasons intelligible, proper, adequateThe reasons could be attacked that they were improper, unintelligible or inadequateIn other words, suggesting that they didn’t mean the statutory thresholdDecision: notes of Officer Lorenz satisfy requirement for reasons under duty of procedural fairness.Coulliard v Edmonton[1999] 2 SCR 817In adopting, word for word, provisions of legislation, board has stated a conclusion, but not given reasons.Decision doesn’t consist of decision supported by reasons, it’s entirely conclusory.Conclusory reading that will not meet the proper, intelligible and adequate standardCan’t just say that this statutory standard not met, must reason your way through reasonDecision: no statement of facts or reasons, only a conclusion, so breach.Is inadequacy of reasons a separate basis for review at common law?In AB, CA said yesSpaderNot only is obligation for reasons up for review, but also inadequacy of those reasonsSCC has clarified decision saying that Spink case is wrong and all other cases which talked about inadequacy of reasons for separate basisNfld v labour relations union and boardCourt said: Dunsmuir doesn’t stand for prop that adequacy of reasons is standalone reason for quashing decision. The reasons must be read together in any review as to the result. (process + outcome)When talking about adequacy, it’s if within range of reasonable outcomesNot just look at reasons all by themselvesIf reasons inadequate then raises question about decision and whether fall within range of reasonable outcomesSpinks v Alberta (Law Enforcement Review Board) – Spader (above) says wrong(2011), 505 AR 260 (ABCA)Inadequacy of the Board’s reasons is not a freestanding ground of appeal (either by statute or at common law). But CA must have meaningful and effective role: legislation allows an appeal from Board to CA. Public an d losing party entitled to know why (though not how) board’s decision reached, to know that it considered main arguments, and to see that only relevant considerations were used. Chapter 2: Rules Against Interest & BiasRight to hearing meaningless if decision-maker not prepared to be influenced by what goes on at hearing. Two elements to the right to a neutral decision maker:Decision-maker must not be biased. In other words, decision-maker must approach the decision with an open mind and be able to convince the person affected by the decision that he or she has done so; andDecision-maker must not decide without hearing. There must be an adequate opportunity to influence the person actually making the decision, and this may present difficulties in the context of institutional decision-making.In Canada, general standard for determining whether a decision maker should be disqualified for bias or interest is that of a reasonable apprehension of bias. This is an objective test in the sense that an applicant does not have to establish that the decision maker is, in fact, biased against the applicant or his or her position. The reasonable apprehension of bias test is predicated on an informed person’s reasonable view of the circumstances; that is, would a reasonable person conclude, form the circumstances, that the decision maker would favour one party at the expense of another?From case authorities, a number of circumstances from which a reasonable apprehension of bias may be found, including:Decision-maker reviewing own earlier decision;Interested parties selecting decision-maker/independence of decision-makerPecuniary interest in the outcome of the decisionExisting or previous association between decision-maker and an interested partyBias through legal or other advisorPrejudgmentAttitudinal bias demonstrated by the conduct or words of decision-makerA. Decision-Maker Reviewing Own DecisionNemo judex in sua caus = No man can be a judge in his own cause, violates a sense of fair decision makingPeople want to have confidence that when they go before a decision maker that they will have full opportunity to make their case and it will be their case or their failure to make their case that will primarily inform that decisionTwo aspects in rules against biasThe rule against material interest: speaks to having a pecuniary interest in the outcome. This pecuniary interest must be direct. In Pearlman case, that is established. Can’t be indirect, tenuous kind of connection and you can string together a possible scenario where interest might be engaged. Must be a fairly obvious connection between decision-maker’s interest and the decision.Rule against bias: Has two aspects1) Rule against actual bias: the decision maker is biased against you or your position. Could be a personal hostility towards you, an intense dislike of your cause/position. 2) Or more usually, something that is constructed from the circumstances. Reasonable apprehension of bias. Goes to perception. Perception that a reasonable person informed of the circumstances would conclude that there is an apprehension of bias. Objective test. We are not always looking for actual bias. It is, in most cases, for you, from circumstances, to raise the conclusion that knowing of these circumstances, a reasonable person would think apprehension of bias. Goes back to justice not only must be done, but seen to be done. Goes back to confidence in the systemMust understand usual set of circumstances that may give rise to biasThe test for reasonable apprehension of bias is from a case: Committee for Justice and Liberty v Natural Energy Board – not in casebookLeading and classic authority to be employed in relation to biasNational Energy Board ruling on pipeline applicationIndividual, highly regarded in his field, previously been leader of Canadian development corporation which participated and funded group that studied possibility of a pipeline in that areaHe is either promoted or moved to NEB and is dealing with this allocationThis is not a corporate business oriented groupNot someone in favour of pipelines attacking this, it’s people worried about environmental issuesThe challenge to this individual, he didn’t actually demonstrate actual biasGo to reasonable person who looks at his previous involvement, as a part of a larger group or consortium who was investigating this development, and now he’s sitting and making a decision on it reasonable apprehension of biasNo need to demonstrate actual bias, hostility, etc. The perception is that there is biasGoal to preserve view that administrative tribunals make decisions impartially and independentlyWe are looking more at structure or appearance of admin justice system as opposed to actual instances of bias/prejudgement/hostility/etcRegina v Alberta Securities Commission, ex parte Albrecht(1962) 36 DLR (2d) 199 (ABSC(TD))Facts: Mr. Rose made order refusing applicant registration as salesman, so applicant appealed, and Mr. Rose sat on panel of three of full Commission. Appearance to anyone looking at this is natural tendency, having made initial decision, is uphold that decision. Interesting thing is did not need to sit. Quorum was two. Could have avoided entire issue by not sitting. Quorum was enough to allow proceedings forward and be legal. Must argue from the circumstances. It would be a different issue if there was a vacancy and he was the second person.Justice must be done but also it must manifestly be seen to be done. Rose should not have adjudicated.B. The Institutional Bias ExceptionThe old notion of self-government. People playing important roles at various points in this process. People in overlapping positions. Or can it go forward because clearly allowed by legislation. Bias by association: if you are associated with a lower level decision maker, you will somehow prefer their view over that of the applicant before you.Law Society of Upper Canada v French (1975) 49 DLR (3d) 1Facts: Old fashioned less complex form of discipline. Members of discipline committee also benchers who could sit in convocation. Issue: Does this create a reasonable apprehension of bias? Would laypeople think creates a reasonable apprehension of bias?*RATIO: No, court says this is permitted by statue. Some got even more elegant by saying this is a one-stage proceeding. The recommendation from discipline committee to convocation all one proceeding so not appeal from discipline to convocation, which may suggest a hierarchical difference.Ringrose v College of Physicians and Surgeons(1977) 1 SCR 814Facts: He liked to advocate controversial treatments, practices outside mainstream; They thought he was going too far. Dealing with a temporary suspension by executive committee of college on charges of misconduct. These are to be heard by the discipline committee of the college. You move quickly to remove the doctor from practice, suspend licence pending any decision of discipline charges. Can’t just say carry on until get around to discipline. Executive committee had not prejudged case, merely decided that a temporary suspension was in order until case could be properly heard. Did not imply any decision on the merits of the case. Related to that was fact that discipline committee was not sitting on an appeal form the executive committee’s decision. Matters decided by each committee were different and did not give rise to the situation of a party sitting on appeal form his own judgment. Court held that theory of bias due to association, that is to say the tendency of a person sitting on appeal from a decision of a lower tribunal which he had been associated to uphold decision of that lower tribunal, must be restricted to very special facts.Decision: There was no prejudgement by executive to discipline. It was only trying to protect public from allegations. Not founded but sufficiently serious to say need suspend now. Did not deal with merit of the charter. Going back to French, attempt to differentiate or not between what is being done by exec committee as opposed to what is being done by discipline committee. Not appeal to executive from discipline. The matter decided by each committee were different and did not give rise to the situation of a party sitting on appeal from his own judgment. Two separate areas of committee. No bias by association. Because exec committee made decision on suspension pending discipline committee, then discipline would feel like have to uphold, but no. Trump card is this process authorized by legislation. That is where the institution bias exception rests, principally on the fact that legislation permits it.Duncan v Investigating Committee of Law Society of Alberta(1991), 115 AR 161 (AR)Facts: Stealing money from your clients; “Misappropriation of client funds”; “Defalcation”; Assurance fund; Decision made if need to take money from there; decision is separate from that of discipline. Decision to pay compensation does not automatically lead to discipline. Committee of Benchers allowed the claim. Started discipline proceedings, a bencher is assigned. Argument raised was that he’s biased because he’s a bencher. Because in determining whether or not sufficient material to go forward with discipline, he is influenced by the fact that law society has already allowed the claim to the finance committee. He will probably be biased in favour of that position. Issue: Does this overlap of functions give rise to a reasonable apprehension of bias?*RATIO: Procedure of paying and discipline different in scope/procedure/objectDecision: any overlap was expressly permitted by statute, so can’t say biasAssurance fund determination really did not predetermine in any way discipline proceedings or result of those proceedingsLaw isn’t sure if reasonable person would come to that resultC. Interested Party Selecting Decision-Maker/IndependenceVolenti: discussion was whether or not judicial independence enjoyed by provincial court judges, there was articulation of what modern doctrine of independence requires.Security of tenure: hold office for good behaviour. Which suggests that if you misconduct yourself, you can be removed from office. We just don’t know how that would play out. Never really got to point of impeaching a judge in Canada.Financial security: you are paid well, paid regularly, and your pay not depend on discretion of the government. It is a charge against the consolidated revenue fund. Judges are well paid. Institutional independence: Designed to ensure that court of which you are a part has a role in conducting its business. In a large measure of independence. That’s to ensure everyone that exec through its manipulation of court’s processes is not affecting court’s impartiality. Question is to what extent do we want to move or have we moved elements into admin adjudication realmThese are well settled for courts but they are defended on basis that we must have impartiality and independenceThe only exception to that is the appointment processSuggestion in earlier cases that in these human rights matters, there was a need to preserve independence and impartiality, so to the degree that one of the parties in HR parties is typically commission, has any involvement with tribunal deciding matter, bad thingCanadian Pacific v Matsqui Indian Band[1995] 1 SCR 3Facts: CP has certain lands which are part and parcel of an Indian band reserve; CP was the chief institutional corporate party in terms of the use of these lands and as part of a move towards perhaps more self-governance, to recognize that bands have a greater involvement with control of their lands; Scheme established to provide a form of taxation wrt reserve lands; So following municipal form of property taxes to bring in revenue to support the band; This creation of scheme involved a creation of a number of bodies which are similar to what you find in municipal taxation. Members of band can be appointment of committees. CP subject to assessment. The underlying cause is whether or not the court will say any attempt to seek a remedy of judicial review in the federal court (because Indian bands are a federal court/agency/tribunal). Or are you free to go to court and ignore following the stat scheme that has been established. The general rule is that courts generally ask you to avail yourself/exhaust stat appeals before going to courts for judicial review. Because judicial review extraordinary thing after exhausted other appeal. But exception: where that review/assessment inadequate.Attack on adequacy on admin remedy was you were forcing me to go before tribunals which lack necessary independence and therefore also lack impartiality to render a decision. I’m not exercising that right because I think these tribunals are bias. Bias by design and association.Prone to outside interference because lack security of tenureAnd remuneration is discretionaryBand decides who goes on review boards, whether or not removed, and how much paidAppearance would be that this is an appeal against band assessment, bands control who sits, how much they get paid, so this decision maker is not going to give appearance of impartial decision makerSCC said argument that they would uphold the highest assessments because all members of band is too speculative, too tenuous to give rise to reasonable apprehension of biasIn view of the court, these tribunals lack necessary independenceThis gave rise to reasonable apprehension of biasIf anyone was looking at this, here are people who are holding jobs at pleasures of the bands, payment at pleasure of band and they are deciding issues between band and parties subject to band’s assessmentTribunal members appointed to tribunals should indeed enjoy security of tenure, certain financial security and a degree of institutional independenceFinancial security means you’re paid set of money not discretionary, not per diemSecurity of tenure means hold office for a term (5, 10 years? More?)Finally, that you set up tribunals in a way where they receive little direction as to discharge of public responsibilitiesAdmin tribunals are there to adjudicate but in furtherance of government administrationQuestion is: are we going to create administrative courts (they do in the US)Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch)[2001] 2 SCR 78Facts: Dealt with liquor licencing matter, suspension of liquor licence for suspicion of intoxication. Upheld by liquor appeal board. To BCCA, appellant argued that the suspension ought to be set aside because appeal board lacked necessary independence and therefore gave rise to reasonable apprehension of bias. Member of board appointed at pleasure. Could be terminated at any time for any reason w/o cause. Many members PT. ISSUE: Did BCCA decision mean that BC and other governments would have to appoint FT people at set salaries for lengthy terms that can’t be changed?Decision: SCC pulled back from that direction. They had been going that way for McBain, Bell, etcReasons: Important because courts realized that if they continued with this respect and end up that court is a court like a rose is a rose. Then they would not look different from tribunals. For admin, something other may be required, ought to maintain that distinction and difference. Court said that the degree of independence determined by enabling legislation.How independent a tribunal will be is a matter for legislature to determine (expressly or by necessary implication)If decision engages charter right, then that may bring in the full doctrine of judicial independenceWhere the legislation is ambiguous or silent, court will presume process wished to comport with principles of natural justiceBut standard of independence highly contextualized, depends on tribunal to tribunalDepend on classification of functionsCourt cannot take a common law rule (nat just and fairness is common law rule) to override/imply parliamentary/leg intentionCourts, by their constitutional position, are different from tribunalsTribunals created to carry out admin of statutory schemeIn other words, they are engaged in implementation of gov policyMay include making of quasi-judicial decisions and makings of policyMore at policy end of spectrum, less you can make argument for anything close to independentThe closer you are looking like a court, the stronger the argument you have to independence, so similar argument to judicial independenceBut importance of Ocean Port was that parl/gov/legs are not required by nat just/fairness to create tribunals which enjoy/reflect financial/tenure/independenceD. Pecuniary InterestSometimes known as rule against material interest. Direct pec interest, cannot be tenuous or built upon sophisticated/unlikely sequence of events.Pearlman v Manitoba Law Society Judicial Committee[1991] 2 SCR 869Facts: Argue to prevent proceedings because Law society not impartial, lacks necessary independence. Not impartial because has pecuniary interest in the outcome and gives rise to reasonable apprehension of bias. That’s not to say that the individual tribunal members have some money at stake in determination of this matter. Based on fact that LS’s can levy costs associated with discipline. These costs can be very expensive. Argument is that the tribunal therefore, as members of law society, have interest in securing his conviction and can bring money back in law society coffers and keep fees down. That there was on part of members of tribunal, a pecuniary interest in outcome of proceedings.Basic principles: reasonable person informed that committee can impose cost, does this give rise to reasonable apprehension of bias?Decision: Courts said no. It’s too tenuous. The members of this committee don’t have any pecuniary interest as individuals in the outcome. They did not stand to profit or gain individually from the outcome of proceedings. To say that you could impose large costs to reduce bar fees that all lawyers will share is not strong argument. Costs are simply to allow society as chief body to do discipline. Do not accrue to individual members so principle holds true.E. Existing or Previous Association Between Decision-Maker and Interested PartyRegina v Ontario Labour Relations Board, ex parte Hall[1963] 2 OR 239 (High Ct J)Issue: whether or not fact that a person is appointed to tribunal to represent a particular group or to reflect a particular groups interest is by reason of that fact going to give rise to a reasonable apprehension of biasFacts: Here you have individual very active in labour relations movement, holds offices in LR movement. He is appointed. In his other job, as ON federation of labour, his federation has lined up behind Canadian labour congress, which is in dispute with international labour thing with US. The argument was that because of his exec position that his federation has taken in support of CLC which was behind one of locals on certification question before tribunal, he would promote that particular point of view and would be opposed to other view in certification matter. *RATIO: Even though oath of impartiality, a person looking at this would say that there was a reasonable likelihood (reasonable apprehension of bias, RAB) which outweighed oath, need to represent general interest. It is asking too much of human nature to hold that chief executive of an organization which had announced a declared policy of destroying another organization would sit to decide dispute between the two organizations or their constituent affiliates.A man might well be a member of a trade union and be free to act with respect to matters before the Board affecting another trade union. However quite a different thing where a member of the Board has a dual responsibility, on the one had to carry out declared policies of the Ontario Federation of Labour and on the other hand to decide impartially any matters that may be in conflict with those policies.Such v Alberta (Minister of Forestry, etc)(1991), 85 Alta LR (2d) 234Facts: Lawyer preparing certain licences. Case forwarded up to minister because minister has to make decision wrt to those licenses. Issue: lawyer prepared dept position and now advising minister, does that creation RAB?*RATIO: The lawyer, supposed to give legal advance to minister, should not play role in prep or prosecution of case before the minister.Decision: Reasonable apprehension of bias. Lawyer cannot give advice to minister.Hutterian Brethren Church of Starland v MD of Starland et al(1993), 9 Alta LR (3d) 1 (CA)Facts: Hutterite brethren wanted construct new colony. Municipal district opposed to this colony and its development. They had sided against development in court proceeding. Matter goes before development appeal board. 3/7 members of dev appeal board were also members of municipal district council. Municipal district already taken position on this. Lawyer for municipal district now lawyer for dev appeal board. Now council lawyer is advising appellate body. The municipal district also paying that lawyer because dev appeal board has no funds of its own. Lawyer gave advice to dev appeal board when adjourned. Advice made public when dev appeal board returned to meeting. Development denied.Issue: Does this create a reasonable apprehension of bias? *RATIO: Even though advice disclosed, always lingering doubt as to what was said and how was said. Like Kane. Here, lawyer has been lawyer for one of parties being paid for by one of parties is supposedly giving advice to decision maker which already has three members of overlapping membership. Decision: Reasonable apprehension of bias. F. Bias Through Investigators or Legal or Other AdvisorBaker v Canada (Minister of Citizenship and Immigration)[1999] 2 SCR 817Notes kept by one officer pronounced in certain views in conducting hearing of baker. Seemed to emphasize or accentuate certain matters by big block letters. Suggested that she was not suitable because immigrant, serious issues, likely a burden. Not much discussion about if there are H&C grounds for her to stay in Canada while apply for residence.Issue: was this decision maker biased? Yes.What one guy shows to other becomes official position. That’s the info decision maker relies onIn Baker because no reasons on part of minister, whose decision was based on second officer, left with notes, which clearly establish element of hostility/attitudinal bias/prejudgementIn that case, reliance of the second officer in making his decision/recommendation has been tainted by bias of so-called investigator.Mitchell v Institute of Chartered Accountants (Manitoba)[1994] 3 WWR 704 (MNQB)Clearwater was a legal adviser, but could not be found independent of the parties. At the very time of the discipline hearing, he and Brett were still associates and partners in TDS law firm. At all material times, Clearwater was member of the TDS firm. Graham, Brett and Abra adverse in interest to Mitchell, at all times, either directly or by association with each other in law firm. Problem is Clearwater cannot be separated from his adverse interest. Therefore, Clearwater cannot escape identification with prosecution’s interest relative to the charges, and thus is connected to one of the parties to the proceedings. So Mitchell did not receive the kind of hearing to which he was entitled by rules of his association. G. PrejudgmentMunicipal council are not strictly adjudicative councils but they are elected with political responsibilities.Old St. Boniface Residents Assn v Winnipeg (City) – supportive councillor case, Savoie[1990] 3 SCR 1170 – Judged with Save Richmond Farmland Society, judged in concertSCC was willing to say that we have to be more flexible, must be context specific, nature of tribunal, nature of situation in which powers are being exercised. Illegitimate bias becomes very highly context sensitive; what may be biased in one setting, may not be reasonable apprehension of bias in anotherFacts: In both cases, alderman taking position. In both cases, suggestion is alderman was able to carry the day with his views because these developments were indeed approved. SCC in Old St Boniface concluded that there was no violation of natural justice and fairness, no reasonable apprehension of bias. Hearing in front of municipal councils, they support proposals, they are subject to lobbying, they take sides in matters of controversy. In that sense, they are different, qualitatively, from people who are just there to make decision, where you want them to come to decision with neutrality. These people should have some sort of opinion. Court was willing to accept some prejudgment in light of political and municipal functions. *RATIO: Bias will only exist where councillor takes it a step further. Where councillor has clearly made up their mind and comes to proceeding with closed mind, that his or her decision is irrevocable, immovable on the matter.Test: a certain amount of prejudgement tolerated, nevertheless, must see that municipal council is amenable to persuasion, haven’t completely closed their mindSave Richmond Farmland Society v Richmond (Township)[1990] 3 SCR 1213Facts: Alderman Mawby vociferous supporting of the bylaw to rezone, and gave numerous television and newspaper interviews in which he stated that although he would listen attentively to the public hearing process, his intention was to vote in favour of it. Rezoning may appear to be legislative act because it is a bylaw, but is quasi-judicial because it’s for a particular issue. Test in Old St Boniface was applied. *RATIO: In favour of rezoning, but was open to persuasion, not demonstrating a closed mind. Had not reached final opinion on matter which could not be dislodged. Follows that was not disqualified by bias. Decision: councillor had not prejudged the matter to the extent of no longer being capable of persuasion.Minority position: asking people to posture, appear to be capable of persuasion when they’re notIf your test is simply that prejudgment will not render in certain cases, then simply say so. A closed mind will not preclude a reasonable apprehension of bias. Politicians are capable of double speak. Very good with committing to two positions flexiblyNewfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities)[1992] 1 SCR 623Facts: Wells taking a particularly strong position against pay made to the senior officers of nfld telephone company. He doesn’t like that their salaries, pension and perks are charged as a cost of nfld phone company in terms of setting rates. Rates should be for service, not enhanced pay package for leaders. He not only raises an issue, and then makes the commission to investigate, and then continues his commentary. Continues in his commentary in local media outlets. SCC after having admitted that there can be prejudgment in some situations, they find themselves here with tribunal member who apparently wants to politicize the utilities commission.*RATIO: Can’t take concepts of natural justice and slather it over all tribunals. Must be context sensitive. Instead of drawing lines, it’s a spectrum. On a spectrum, the more you are like a true judicial body, ie, applied rules in a limited settings, then usually you must adhere to reasonable apprehension of bias standard. But when you move along the spectrum, there will be more flexibility shown in recognition of the various functions of these entities. And a more lenient stance given to elected bodies like municipal councils. Decision maker must be amenable to persuasion. At a so called investigative stage, he can take a strong policy preference or view. But must temper that when he moves to the adjudicative stage. He must pass the threshold of a reasonable apprehension of bias. He consistently was adamant that these were inappropriate, and no matter what was said, he would find them inappropriate for setting utility rates.Decision: While they were prepared to cut him some slack, he went past the limitationH. Personal Attitudinal Bias/Personal HostilityIn many of these cases, must build actual hostility/bias from transcriptRe Gooliah and Minister of Citizenship and Immigration (1967), 63 (2d) 224 (MNCA)Facts: Special Inquiries officer dealing with immigration issue. He’s a good and loyal member of group, but forgets he has adjudicative duty. Appeared to be prosecuting for department. He wasn’t conducting a fair impartial assessment of matter. He appeared to be establishing that department position was right.Gale v Miracle Food Mart(1993), 13 OR (3d) 824 (Ct J (Gen Div))Facts: Argument is that she’s biased in conducting this investigation/making this determination. Because she’s a strong advocate in matters concerning sexual discrimination/harassment. Issue: Is that enough to give rise to reasonable apprehension of bias? Does the commitment to eradicate sexual discrimination? Does that mean rab or can that be overcome by being a neutral adjudicator?*RATIO: Just because she is engaged in these causes doesn’t necessarily mean that she will be biased. There’s room for some advocacy, but you must not allow that advocacy that you become a party to the proceedings. That your personal beliefs/attitudes make you a party to the issue itself.Problem was that she was part of a similar complaint of a similar complaint to the commission. Even though she had withdrawn from the matter, she did so after she was appointed to this commission. So she is indirectly a party. Yusuf v Canada (Minister of Employment & Immigration)[1992] 1 FC 629Facts: Demonstrates clear hostility/personal animus/tribunal involved in the fray, but also how you use a transcript. Refugee board. Throughout, behaviour of panel which can be hardly described as judicial/judicious. Commentary was laced with certain innuendo that they don’t believe her. The language is demeaning. Doesn’t treat party with dignity with which they deserve. Not designed to test credibility of personal events, but it was for destroying her evidence. That’s the role for the department if they want to do that, not a role for tribunal. Sexist and demeaning, doesn’t seem to have a good understanding of society in some Middle Eastern states. There was hostility toward her, not examining truth.Chapter 3: Remedying Defects on RehearingLook at possibilities presented by a rehearing. Whether it can cure any defects in natural justice of hearing. Also look at functus officioFirst principle: you can’t have a rehearing unless legislation permits.Why provide for rehearing? Some admin efficiencies. Fits into the notion that judicial review is extraordinary remedy; intervention by courts in admin process.Tribunal may rehear a matter if the statute expressly permits rehearing, or build from language like, “vary”, “reconsider”.There is no inherent right to rehear at common lawSecond Principle: If a tribunal screws up so badly that its decision is a nullity, it can start again. (Chandler allows for this to occur even without permission from legislation).Make sure it’s a very clear nullity, then tribunal may rehear/start afreshThird Principle: All evidence reheard, new can be brought it, it’s not picking up where you end. Fourth Principle: Where legislation allows rehearing, courts have seen this in a mandatory matter, so where someone requests to rehear and legislation says may, courts have said they have a duty. So read permissive language as directory.Chandler v Alberta Association of Architects[1989] 2 SCR 848Facts: practice review board. Took a fairly expansive view of its jurisdiction to the point where actually acted w/o authority. Then realized wrong committee, but we want to go back to do what we should have done. Case arose out of collapse of a major AB architectural firm. This led to AAArchitects to lead inquiry into the bankruptcy to examine the practice of this particular firm, to find out what went wrong because there were substantial financial repercussions from this event. What we have then is the practice review board conducting hearings from a lot of people. Comes up with 21 specific findings of unprofessional conduct. Levies $125k+ of fines. Also says people are suspended from practicing from 6m to 2y. Parties subject to these orders sought not only to appeal this to the council of association, but also sought judicial review on basis that practice review board did not have jurisdiction to do what it did. So instead of reviewing their stuff, they were being considered for wrongdoing. They were actually exercising powers belonging to complaint review committee. So exercising a power given to another power of association, so acting without any authority whatsoever. So not only breached natural justice, but acted without any jurisdiction. Their role was to investigate and give recommendations. Could have actions out of these recommendations but that’s for complaint review board. So when Practice board wanted to make recommendations, can it or is it functus, which means that it’s done. Can’t go back and hear it again. We need finality. Have other ways of looking at decision (appeal) but must be some finality. Issue: were they functus or could they return to this?Court points out that act did not give power to practice review board to reconsider, review, vary the final decision that it made.Two exceptions to functus officio1) Make a clerical error in drawing up of entry2) Decision not reflect true intention of boardSo slips and errors or decision so badly written that it doesn’t represent true intention of tribunal. Suggestion that tribunal did so badly that its decision is a nullity, then can redo. FO: done, can’t go back, can’t continue. Prevents reopening of same matter before same court/tribunalRes judicata: matter is determined between the parties*RATIO: Sopinka argued for flexible approach when used in admin proceedings. That it wouldn’t apply as strictly as in judicial proceedings. We have a tribunal that was supposed to inquire into practices, make recommendations and it did do that. Even though its chairman said that’s what we’re all about, went and did job of complaint review committee. So it can return to do what it was supposed to do.Acted totally without jurisdiction, so can go back and do what it should haveL’H D min: she asked the question “when is it done”?Must bring a certain certainty to thisMust know when to get judicial review and appealsWill create nothing but confusionHere, it made a final orderIt issued suspensionsIt had no power to do so, it made an order, that’s realIt is functus officio when it handed down this ultra vires order, it’s doneIf not, we just end up with a lot of uncertaintyLaw likes her view because it offers certainty and clarityKing v University of Saskatchewan[1969] SCR 678Facts: King wanted to graduate from Law school but did not have all the requirements; Had been considered by special committees, executive committees, Faculty council, whether he should be granted degree on compassionate grounds.He finds himself finally making appeal to Chancellor when FC says no. Chancellor says this isn’t appeal to me, it’s to senate. Senate then hears matter, gives him a full hearing, opportunity to be represented by council. Issue: does that full hearing cure any defects in natural justice below? Or can he say I didn’t get enough at senate because denied natural justice at other levels below?*RATIO: Senate had original jurisdiction to grant what he wanted. That would cure any defect in other proceedings where he wasn’t allowed to appear at lower levels.O’Lachlan case, it was a body not with original jurisdiction but appeal jurisdiction. Appeal body in that case simply reconsidered evidence, looked at finding of trial tribunal so it was conducting a fairly limited appeals, so on that basis, count said could not cure defect in lower proceedings.PART V: Remedies for Illegal ActionPrerogative remedies at first, then private damages like injunction, damages, etc used in public law resulting in some adjustment in principles underlying these remedies. At one time, each one of these remedies had these own processes. They had very narrow scope, very technical kinds of issues.Now we have common form of application: original application for judicial review. What you must provide in these applications is fairly standardized. We still use the references to these remedies but they are codes for what these remedies do. Take all the scope of these remedies and bunch them together.Chapter 1: Charter Remedies by Administrative TribunalsDo administrative tribunals have the power to issue a remedy under s 24(1) or (2) of Charter and even before that, can they deal with constitutional based challenges to their own legislation? You can certainly challenge the legality of the action on charter right/freedom. Under s 52, supreme law of Canada. Does nothing more than state that. Is that a remedy or is it a simple expression of supremacy of the charter? Still, courts have made declarations relying on s 52, declaring that this particular legislation violates s 52.S 24: enables courts at first blush to fashion a remedy that is just and reasonable under the circumstances. Appears to give court quite a bit of flexibility. What do you mean a court of competent jurisdiction? Is it court of law? But didn’t say that. Could have said s 96 court of s 101 court. But it just said court of competent jurisdictionIn terms of the remedy, does it mean courts can come up with new remedies? The language, “just and appropriate fashion” or “grant such remedy as the court considers appropriate and just” seems to be invitation to court to create new remedies. Courts have not created any new remedies. They are so wedded to existing remedies, they read it as remedies that they grant. Can an administrative tribunal consider a constitutional challenge to its legislation? Would make sense that it should. If admin says we can’t deal with charter, would have to wait and say go to court first, then come back. That draws a very sharp distinction between courts of law and tribunals. It supports idea that courts are special, do not confuse us with other tribunals etc. Calls for fairly protracted, involved kind of sitting. Tribunal would have to wait for a court challenge, stand by. Other view says why not let them decide. Many of these tribunals have very capable members. Many have law degrees. They can deal with these kinds of matters. They are equipped and probably better because they can do it in the context of a particular scheme or situation. If they make mistake, they have record, reasoning and decision and a court can look at that. The arguments are that actually allowing tribunals to decide these things, would improve and enhance the legal process.Cuddy Chicks Ltd v Ontario (Labour Relations Board)[1991] 2 SCR 5 Facts: Farm workers were specifically exempted from legislation because can’t have unions when it comes to picking grapes, could lead to downtime in the vineyards. Better to have people as itinerant workers. Argument then was that it violates their mobility rights, freedom of assembly, it’s unconstitutional, so argument is that must deal with constitutional challenge. Decide that decision that precludes these workers is ultra vires. Now they’re eligible. Also, OLRB held that provision of its enabling legislation which prohibited agricultural workers from collectively bargaining violated s 15 of the Carter and SCC upheld. SO expanded jurisdiction of OLRB to cover a class of persons who the legislature had specifically decided should not have right to access collective bargaining.Tetrault-Gadoury v Canada (Employment & Immigration Commission)[1991] 2 SCR 22Facts: Dealing with employment insurance. There is a process in the legislation that involves a series of internal appeals. Retirement after 65. She just wanted to keep working.Issue: was it appropriate for one of these bodies (to which appealed) to deal with charter challenge on basis that rules violated Charter?*RATIO: Administrative tribunal can decide charter issues, and specifically held that tribunals must not apply provisions that they determine violate the Charter. The court stated that tribunals can make these Charter decisions if two conditions are met:Tribunal must have clear jurisdiction to deal with questions of law in its enabling legislationTribunal must meet tripartite test enunciated in R v Mills (The Mills Test – for what it takes to be a court of competent jurisdiction)Tribunal must have jurisdiction over partiesJurisdiction over subject matter of the proceedingsJurisdiction over remedy soughtDecision: board of referees (one of internal appellate bodies) does not have jurisdiction to rule on challenge to legislation based on charter. Board of refs have limited jurisdiction and cannot raise those question of law related to charter. In these two cases, have acceptance that tribunal can deal with constitutional powers, but must be given express authority to deal with questions of law.In Chicks and Tetrault, not dealing with jurisdiction in classic sense under s 24. All asking for is that this underinclusivity of the legislation was ultra vires and unconstitutional. Not asking for something that would bind all other tribunals. Some doubts are raised about having everyone allowed to talk about charter stuff like:Weber v Ontario Hydro [1995] 2 SCR 929. Strong dissent against majority opinion that arbitrators have power under s 24(1) to remedy Charter violations they find provided they have necessary jurisdiction in the enabling legislation. SCC says in those cases that we may have gone too far. We are courts of law, we are unique, we are bound by stare decisis, we have authority to issue certain things, by having courts argue these, you get consistency, we have INDEPENDENCE.Issue: whether labour arbitrator could issue damages for violation of employee’s charter rights under collective agreement.*RATIO: Maj suggested that arbitrators can be court of competent jurisdictionMooring v Canada (National Parole Board)[1996] 1 SCR 75Exclusion of evidence under s 24(2)NPB held not to be a court of competent jurisdiction because it was said that it couldn’t issue such an order, didn’t have authority to make that particular remedy. Was bound to consider all relevant evidence, by excluding something that was relevant, couldn’t do that.Cooper v Canadian Human Rights Commission[1996] 3 SCR 854 – It’s not the majority decision. He may be chief justice, but he is dissent in this caseLamer CJC openly questioned the reasoning of the Supreme Court in the Cuddy Chicks and Tetreault decisions, stating that court’s previous decisions authorizing tribunals to overstep their constitutional role were in serious need of revision. The power to decide Charter questions and consider constitutionality of legislation begins and ends with the courts. Only courts have requisite independence to be entrusted with the constitutional scrutiny of legislation when that scrutiny leads a court to declare invalid an enactment of the legislature. Mere creatures of the legislature, whose existence can be terminated at the stroke of al legislative pen, whose members…usually serve at the pleasure of the government of the day, and whose decisions in some circumstances are properly governed by guidelines established by the executive branch of government, are not suited to this task. Allowing admin tribunals to assert jurisdiction over Charter essentially inverts hierarchical relationship where fundamental matters of political choice are left to the legislature, and the executive is bound to adhere to those choices.After putting out these warnings, there was some doubt that SCC would continue on Cuddy Chicks/Tetrault line of reasoningLegislature responseMake it really clear that certain tribunals HAVE jurisdiction to deal with a charter challenge or con challengeIN THE MAIN, most of them do notIn BC legislation, must fire it off to a court or have an expedited hearing, AG gets to participateYou, again, as much as minority suggested, you’re putting these kinds of question because of importance, back to courts, and keeping them out of the admin processNova Scotia (Workers’ Compensation Board) v Martin & Laseur[2003] 2 SCR 504Facts: statutory exclusion of chronic pain from scope of provincial WCB scheme. Instead of benefits, sufferers got a four-week Functional Restoration Plan – no benefits after that. Argued before NS Compensation Appeals Tribunal that these provisions should be ignored as a violation of the charter; that they amounted to illegal discrimination on basis of disability. NSCA held Appeal Tribunal did not have jurisdiction to consider constitutionality of challenged provisions of the act.Issue: Can the appeal tribunal wrt to this workers comp claim deal with s 15 challenge? Does it have jurisdiction over questions of law?Decision: Court then looks through legislation and says it does. CA erred. Admin tribunals which have jurisdiction to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. This presumption may only be rebutted by showing that the legislature clearly intended to exclude the Charter issues from the tribunals’ authority over questions of law. Following cuddy chicks, if you have the jurisdiction express in this case by reading statute to determine questions of law, you can deal with con challenge. Helps court establish record, make better decisions, etc. Ultimate safeguard is that any decision by tribunal on con challenge to legislation, is subject to standard of correctness of appeal by the courtsDore: remember, allowed for balance exercise of discretion against charter imperatives faced by tribunal. All they were expected to do was making reasonable decision not correct.Must draw a distinction between cases of challenge to enabling legislation. When a tribunal effectively rules that its enabling leg is underinclusive or violates charter right (primary or sub reg), courts will hold that to be a question of law of general importance to a correctness standardWhenever you’re talking about charter considerations in the exercise of discretion like Slaight Communications and Dore, then in these cases tribunal bound to decide in accordance with the Charter but the courts will allow them some room for manoeuver; some opportunity to balance stat imperative with charter and come to reasonable balanceR v Conway2010 SCC 22Facts: Someone in a mental health facility, found NCR. He decided to challenge mental health review board on the basis of the Charter. He wanted to be absolutely discharged. ON Review board said we don’t have power to grant absolute discharge because we think he is still a threat to society. They do not have the power to discharge someone they think is still a threat to society. Abella looked at various lines of authority. Looked at Mills approach, Charter cases (Slaight and add Dore) and Cuddy. New approach: Does the tribunal have jurisdiction, express or implied, to decide questions f law?Has legislature clearly excluded jurisdictionCan the tribunal grant the remedy sought?Given the stat scheme, is the remedy one that fits in the tribunal scheme?If tribunal could provide charter remedy, then it is a court of competent jurisdiction. In that sense, she has moved away from Mills. We aren’t looking at parties, etc. Just going to ask if express/implied jurisdictionDefining “court” in the broadest of sensesDecision: The board is a court of competent jurisdictionNvtl, there is a particular remedyGoing back to Mills here, does tribunal have power to grant this particular remedy? NoThe Crim Code doesn’t allow the board to grant a remedy of absolute discharge if he’s still a threat to society or order a type of treatment.Court is a court of competent jurisdiction but not to grant remedy wantedChapter 2: Remedies Against Provincial Government AgenciesWhen you’re dealing with provincial statutory authorities (divided prov and fed because as a result of the federal court act, if you want to seek judicial review against federal decision as defined by fed act, then you must be in federal court. In matters of suit against federal crown, could have concurrent jurisdiction. But federal crown has some exclusive jurisdiction) there are appeals. In some statutes have curious statutory remedies. Application for judicial review, the originating application in our new rules of court will provide access to superior courts. They will be granting prerogative remedies, historically within purview of inherent juris of sup courts, and certain public law remedies: injunction and declaration.Then damages. Question becomes under what circumstances you can hold gov liable in money. Damages are not a matter that can be dealt with in a summary proceeding like an original application. They are arrived at after a trial, must more fulsome process. Summary process/jurisdiction: you’re making an application; contents of that application are spelled out in that app and you are supporting your case through affidavit. No witnesses to give viva voce evidence. Just documents to support your legal argument.Trial is a much more involved/lengthier/different proceeding.A. Statutory AppealsAs a creature of statute, nature and scope of appeal will be determined from interpretation of enabling legislation. You may encounter sometimes distinction between judicial review and appeals (legality vs merits not fair or accurate distinction). Wrt to appeals, can have appeal provisions that say a question of law and jurisdiction, that sounds just like judicial review. So that distinction is not a terribly helpful distinction. There is no consistent pattern to how you create appeals. There’s no general standard formula or uniform formula employed in this respect.You have appeals to courts/admin bodies/ministers of crown on the merits/on question of law and jurisdiction/on facts/on the remedy/question of fact and law/appeals (those drive you crazy, what do you mean by appeal? What KIND of appeal?). Must interpret that provision with other pieces of legislationUnqualified appeals suggest everything in, all forms of remedy available, but courts didn’t interpret that way. Courts have taken different approaches to the question of what an unqualified appeal is in terms of nature and scope, what kind of material is available and what remedial powers available.Remedial power: power restricted to sending matter back or can you issue something on merits?The model that courts have adopted in terms of looking at administrative tribunals and their appellate bodies, is that deference is called for:We are not hearing these matters de novoWe are reviewing the record and looking for legal errorsProfessional Discipline TribunalsProfessional discipline tribunals in a good position to make decisions because they are composed of professionals in the field. So deference but look for legal errors, etc. Courts will only interfere when not reasonable. If legislation says appeal de novo, can bring in all evidence from previous proceeding, and any new evidence, starting fresh. If all of that material is before you and you’re starting fresh, then that suggests that appellant tribunal can substitute decision of lower tribunal. What if legislation does not speak about or use words “de novo”? Courts will see as more restricted. Restricted to record. More closely to judicial review. If so, who makes the decision? In more restricted forms of appeal, you send it back down. In cases where not bringing in new evidence, just reviewing the record and if reveals an error of law/reasonable decision/whatever. Materials suggest that if you see the words “on the merits” that that is essentially talking about a de novo appeal. On the merits is a retrial of the facts and can bring in new facts. That language is approximate to de novo.SKK Investments Ltd v Alberta (Director of Social Care Facilities Licensing)150 AR 351 (QB)Appeal is not a new trial but restricted to appeal of the record. Based on the notion that appellant has already had a full trial before the lower body. If the appeal is then so limited, the material before appellate tribunal is indeed limited. This is a consideration when asking self should I pursue the appeal or should I get judicial review? Because if record before appellate tribunal is limited, may say I can’t establish the grounds I want to establish on the basis of that record, so I’ll go to judicial review because I can bring in evidence by affidavit. You have to think about the material the appellate tribunal, the nature of the tribunal, nature of the question, to determine whether or not it is an adequate remedy for your client. If it’s not, you may prefer to go for judicial review.Why important? Because standing rule wrt to appeal is because appeals are internal mechanism, the general rule is they have to be pursued first. If you don’t use appeal first and do judicial review, you may be met by antagonism. Your argument must be that appeal doesn’t work, not a good remedy, and therefore judicial review is better. Going to be looking in most cases of whether or not decision falls within reasonable range of outcomes.B. Statutory ReviewStatutory review (unusual kind of provision): one wonders why as opposed to simply proceeding through originating application for particulation for particular remedy. Review by a committee, as stipulated in a statute, of the provisions or operation of an Act of Parliament.To avoid any difficulty that this is a legislative function and therefore certiorari. At end of day, it is a stat way of attacking by law or resolution. Be aware of it, might be appropriate remedy for you. Might be able to argue that they could have opted for this (Law says “good luck with that”). Privative clause: no bylaw may be attacked on idea that it is unreasonable. Can’t challenge content or substance of the by law on basis that it is unreasonable by law. That’s not good enough. It would be difficult on judicial review to have a court review the policy decisions of municipal councils. Don’t bring a lot of needless litigation in that that’s an unreasonable by law.C. Prerogative Remedies – GenerallyLaw expects us to remember certain key provisions of rules of court. Know your way around these rules concerning judicial reviewJudicial review has always featured a wide number of remedies. Prohibition: to prohibit inferior statutory tribunal from dealing with matter outside of its jurisdictionOrder from a court not to go any particular direction because that would be ultra viresCourts reluctant to issue prohibition except in most obvious cases, it’s prejudging in a wayMandamus: to compelCoercive order to compel a public authority to perform a public legal duty owed to the applicantHas been used in a broad senseQuo Warranto: useful medieval remedy but no longer needed. You can get to the same place by a declaration. AB and federal government still have itLaw will not ask a question on quo warrantoVery limitedUsed to challenge a person’s exercise of office and by what authority exercising that officeHabeas corpus: great antiquity. See it as being one of the pillars of individual liberty. SCC decided to expand upon jurisdiction of provincial superior courts under habeas corpus in relation to federal mattersFederal court act reserves habeas corpus to prov courts and there are reasons for thatSCC said can be used in prov sup ct to examine reasonableness of decision to transfer prisoner form one facility to anotherCan also use HB to look at whether or not decision made in a procedurally fair mannerMission Institution v Khela 2014 SCC 24Arisen out of context of civil suits, declaration in particularDeclaration: great remedy, very flexible, few conditions on its use. AKA declaratory orderInjunction: another remedy from fight between court of chancery and royal common law courtsEquitable remedyCan be cast in prohibitory terms or mandatory termsSimilar to mandamus. Prohibitory overlaps with prohibitionWhy use these remedies if have prerogative?Prerogative remedies have a lot of technical conditions that makes them difficult to use them for public law settingsAnd so moved these from private law into public law systemsTo better accommodate the public law settingsInjunctions also very useful in maintaining status quoInterim/interlocutory injunctionCan have interim prohibitory/mandatory injunction to freeze things until can deal with somethingTo make sure that at end of day you may be successful in your suit but nothing to gain because destroyed, so to preserve thatIdentical to another remedy in AB rules of court material: a stayStay: power a court has to freeze things pending the resolution of the application and both the federal court and AB sup cts have power under judicial review to grant staysAlso know that courts have recognized that the law relating to the granting of interim/interlocutory injunction is same as the law of granting of a stayPage 395 is originating application3.8(1) a-dReview and set aside (plain language of certiorari) application must be brought within 6 months. Limitation: if you are making application, you have 6 months from day rule/order madeNote that court has discretion to add parties to applicationIt’s beyond every person directly affected by application or by person who directly brings itJudicial review concerned with attacking exercise of statutory authority3.18(2) – the record is a very important part of the process. Re Northside-Victoria District School Board and Yorke(1992) 112 NSR (2d) 315 (SC(AD))*RATIO: Handwritten notes of the arbitrator did not constitute part of the record. Could not be brought in under the record of “anything else relevant to the decision” because they’re unreliable (3.18(2)(e)). Just reaction to what writer has heard. Not a transcript. Not a real objective statement of what is heard unlike real record. They are personal observations. That’s just an example of the court saying there is a broad record but certain limits on what constitutes a limit.D. Availability of Judicial ReviewAgainst Domestic TribunalsJudicial review is against statutory authoritiesHistorically, always been a distinction drawn between domestic and statutory tribunalsYou can’t go to court and review decision of domestic tribunals (gov associations of clubs, etc)Belonging to particular association, volenti where you decided to joint this groupOnly exception is in police situations because disciplining them has public issuesVancouver Hockey Club Ltd v 8 Hockey Ventures Inc(1987) 47 DLR (4th) 51 (BCSC)*RATIO: Court won’t interfere except in two circumstancesConstitution of group sets authority. Use a declaration in this case and hold a decision maker to that jurisdiction, to exercise their powers within that jurisdiction, there are legal limits. If there is a measure of natural justice called for, some sort of process ought to take place, will also require domestic tribunal to do that.Looking for jurisdictional errors and serious defects of fair process.Facts: Pat Quinn under contract with one club, tries to make him GM. He talks to agent, and then gets him a new deal. New deal with Vancouver. In those days, Van and LA in same division. Now he’s coaching LA and looking forward to coaching Vancouver. Conflict there. Comes to attention of board and president, unhappy. Action taken is heavy fine against Vancouver and Quinn, fine was to the maximum, and said every day was a new offence. Decision: what Ziegler did was well intentioned, but didn’t have authority to turn an offence with a maximum fine to a fine with an offence for every day. Actions null and void.Chapter 3: Remedies Against Federal Government AgenciesFederal Courts Act created a federal court trial divisional and FCA in 1971. It was amalgamation of a number of federal courts, principally the exchequer court of Canada and the tax court. It was thought that as part of new pan Canadianism, it was important to have federal court to deal uniformly with matters concerning federal government across country. By having people dealing with prov issues with claims against fed crown, was leading to a certain lack of uniformity in treatment of federal crown. S 101 court, not a s 96 court, it does not have inherent supervisory jurisdiction. So you have to spell out in the legislation what judicial review involves. They spelled out remedies, the grounds for remedies, etc. They’re all an attempt to put into statute common law. Has interesting jurisdiction and subsequently take out a tax body and made TCA. Court has interesting jurisdiction, maritime matters, prisons, copy right, immigration, etc. Does not typically deal with contractual actions, tort suits unless they are brought against a federal body. FCA sits in Ottawa. FC can also have hearings in Ottawa, but also on circuit, and will come out to various locations. Our concern is judicial review jurisdiction, difference between fca/fc, be aware of two concepts of jurisdiction in that statute (exclusive jurisdiction in FCA/FC and concurrent jurisdiction in prov/fed), and what is meant by federal board, agency, tribunalAlso applies to Indian bandsFederal Court Act (page 402)Thought to ensure more even treatment of federal agencies/values in terms of civil actions brought against them, particularly wrt judicial review. Whether or not statute accomplished what wanted to, hard to say. Revised in 1990 significantly. Must be read with Crown Liabilities and Proceedings Act.It is a s 101 court, can see that in stat provisions because doesn’t have inherent powers to exercise judicial review, it’s given those powersTwo divisions: Federal Court (formerly Trial Division) and FCAFederal Court commissioner of the tribunal means any statutory decision maker empowered by act of parliament. Indian bands do fall within federal court act. Senate and HoC excluded. Also excludes certain parliamentary officers. Definition in s 2(2) excludes a parliamentary officer added back under B1Parliamentary integrity officerMust fit within that definition in order to exert proceedings under federal courtCarruthers v Members of the Therapeutic Abortion Committees of Lions Gate Hospital(1983) 6 DLR (4th) 57 (FCA)Facts: Deals with therapeutic abortion. Provides certificates to authorize abortion procedures in interest of health of mother. Challenge brought to federal court. Issue: is this a federal court or tribunal? It was not because not created by an act of parliament.It was recognized in CC as a possible defence but it was not created by federal legislation. This particular committee was not authorized by fed leg. This hospital did not have to have therapeutic abortion committee. Because it operated under hospital, more likely provincial, but definitely not federal.S 18 and 28 on pages 403 and 404 two most important provisions. REMEMBER THESE TWO SECTIONSS18 deals with judicial review jurisdiction of federal court and 28 with FCAIf FCA has jurisdiction, FC does not; IF it’s under 28 then it CANT be under 18FC has EXCLUSIVE jurisdiction to issue all remedies of judicial review with one exception, habeas corpusEXCEPT member of Canadian armed forces serving outside of CanadaFCA given jurisdiction over 17 named bodiesBefore, had to do crazy characterization to fit under s 28 but provision has double negativeIf you fall within list of bodies, you go to judicial review to FCAYou go to FCA because felt that a panel of three is better suited to hear these tribunalsThese are major social and economic tribunals In Martineau, there are two casesMartineau said there is jurisdiction under s 18 to issue certiorari, especially for duty of fairness, s 28 now lists what’s under s 28Habeas corpusThe jurisdiction to issue habeas corpus seems to lie with provincial courtCanadian prisons located across the countryHistorically, prisons were a good means of local patronageR v Miller[1985] 2 SCR 613Issue: whether, having regard to role of habeas corpus and exclusive jurisdiction of FC in respect of certiorari against any federal board, commission or other tribunal, a provincial superior court has jurisdiction by way of HB with certiorari in aid to determine the validity of the confinement of an inmate of a federal penitentiary in a special handling unit, a particularly restrictive form of segregated detention, and if such confinement be found unlawful, to order his release into association with the general inmate population of the penitentiary.Importance of making HB jurisdiction of provincial superior courts effective one and distinction between certiorari to quash and certiorari in aid, regarded as a procedural or evidentiary device to make BH more effective. There is a marked difference between certiorari, used to quash a conviction or an order by its own strength, and certiorari in aid of HB to make the latter remedy more effective by requiring production of the record of proceedings for that purpose.In many cases it may not be possible for a court to determine whether there has been an absence or excess of jurisdiction if the record of the tribunal which imposed or authorized the detention is not brought before it.Because of clear intention to leave the HB jurisdiction over federal authorities with the provincial superior courts and the importance of certiorari in aid to the effectiveness of habeas corpus, it cannot have been intended that the reference of certiorari in s 18 of FC Act should have effect of undermining or weakening the habeas corpus jurisdiction of the provincial superior courts by the exclusion or denial of certiorari in aid. Can be avoided by application of the distinction emphasized by Laskin between certiorari as an independent and separate mode of review having as its object to quash the decision of an inferior tribunal and certiorari as an ancillary procedure used to serve an essentially evidentiary purpose.Decision: provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to review validity of a detention authorized or imposed by a federal board, commission or other tribunal as defined by s 2 of Federal Court Act.Issue of certiorari in aid of habeas corpus. Dealing with a unique kind of remedy. Certiorari in aid is a procedural remedy, different from certiorari. Want matters to be dealt with expeditiously at the local levelMission Institution v Khela2014 SCC 24Facts: Deals with habeas corpus involving movement of a prisoner serving a life sentence for murder from medium back to maximum security. Change in conditions of custody. His much more limited liberty. Courts have recognized that this falls within scope of habeas corpus because talking about liberty of individual. He also meets other criteria for habeas corpus, he’s in actual custody. Why move? He engaged in further criminal behaviour while incarcerated, orchestrated of a stabbing of another prisoner as a result of a failed drug deal. Issue: Habeas corpus, what is jurisdiction of it? What scope? What court do you bring it in? *RATIO: habeas corpus is a broad and flexible remedy. As a broad and flexible remedy that evolves to meet changes, it is open to prov court to inquire into decision such as this. Was the decision to transfer Khela was within the reasonable range of outcomes? The second thing in Khela was, failing that, an allegation that transfer was procedurally unfair. There had been a failure on the part of the warden to disclose the information that she relied on. So this is a disclosure issue. Warden moved him to protect confidence of other prisoners that she would protect them from injury. Talks about historical role of HB, and the fact that it makes sense for HB to be able to examinee reasonableness of a person’s custody. Court came to this conclusion because they see the arrangement of federal court act as providing for some choice in parties as to where they seek a particular remedy. Shouldn’t be forced by legislative straight jacket to go to one court or another. Applicant should be able to determine venue. No evidence that FC is more expert in dealing with these kinds of matters than provincial superior courts. Seeing HB as a broader remedy facilitates access to courts.In HB onus is reversed. All he has to do is make the claim, the party justifying custody must justify. Whereas in certiorari, you must argue that particular something is reasonable. Transfer decision doesn’t fall within range of reasonable outcomes, and not defensible on the facts. SCC said really what we have is breach of procedure, warden failed to provide information she had to based on natural justice. She didn’t even provide a summary of the information called for. This individual was treated in a procedurally unfair manner, and this will be addressed by provincial superior court with HB.Canada (Attorney General) v TeleZone Inc[2010] 3 SCR 585Facts: Result of a highly questionable FCA decision. Plaintiff denied certain licensing, has expended a lot of money for that licensing, wants to sue for that. Brings a claim against Canada in negligence/K for these damages. FC has jurisdiction to hear claims against the federal crown (s 17). Concurrent original jurisdiction means it has jurisdiction with provincial court. So can bring negligence/K actions with provincial superior court or federal court. Said can’t bring claim against Canadian the ON court of justice because it was a collateral attack on the decision of the gov.Collateral attack: attack the validity/legality of the decisionCollateral attack should be brought in the federal court. Based upon case Grenier, there was the belief that before you could bring an action for damages where that action for damages involved a question as to the legality of the decision. You had to first go to the federal court to get the decision quashed. Then and only then could you go back to prov sup ct and bring damage action. SCC said it’s over, Grenier was wrongly decided, TeleZone is the new law. Grenier is example of kinds of unnecessary legislation that plays for federal court act. Court says this seems to run entirely contrary to language of legislation. These multiple proceedings don’t benefit anyone, not the parties or expedition admin of justice. It’s not really a problem to have a provincial sup ct deal with both legality of decision and whether or not damages because tort all in context of one proceeding. On that basis, to demand two proceedings, is incorrect.Negligence liability is not necessarily based on legality, it’s based on concept of fault. Only in some cases will you be actually dealing with question of validity in context of a tort action, so there is a real need for concurrent jurisdiction for two courts and let parties decide which they want.Chapter 4: Nature of Prerogative RemediesA. Certiorari and ProhibitionCertiorari is your main remedy: order to review and set aside. Certiorari has been historic prerogative writ. Designed to provide royal courts, to have them supervise inferior courts/tribunals. Courts extended their jurisdiction from purely judicial/summary things to actions of justices of the peace as administrators. Did so because justices of the peace were acting as judicial or quasi-judicial functions. A lot of law as to what was judicial vs admin/leg. Very incoherent and contradictory Then there was this super added duty. Not only must decide important interests and right, but the tribunal must look like a court and act a court. Cleaned up in 1970s-80s in Canada. That’s Martineau, sets out the history of this, but also concludes that certiorari is a broad, general remedy for supervision of government decision.Rights is not used in context of legal rights, but rights generally and broadly defined. So if there’s something of significance (to the applicant) then the courts will not be unduly timid in using certiorari to enforce fairness. The broad reach was predicated on duty of fairness. In those cases, may need to adhere to natural justice and fairness, certiorari will lie. Prohibition goes hand in hand with certiorari. Prevent or prohibit a tribunal from proceeding in an unlawful/ultra vires manner. Wilson: didn’t get particulars, court said you could have taken steps to get those particulars before you got judicial review. Courts hesitant to get involved before things get started.B. Quo WarrantoExists in AB and in federal court jurisdictionLimited purposeQuestions a person’s right to hold an officeSometimes their authority in the occupation of that officeAlmost every other jurisdiction has replaced it with declaration (that you do or don’t have the right to hold that office)Jock v Canada[1991] 2 FC 355 (TD)Dealing with authorities of certain members to hold that office. 11 conditions for the remedy. Refused to grant the remedy because the plaintiffs took 2 years to do it. WILL NOT BE ON THE TEST.C. Habeas CorpusOften seen in crim matters were there is a challenge to holding of a person in custody. Order/app to discharge a person from custody. Originally conceived to bring body before the court. Actually bring the person in custody before the court. At which point there would be obligation on person by what authority they hold this person.SituationsPrison situations like KhelaNot releasing a person on day should be releasedDetention orders for people in mental health facilitiesApprehension of individuals under immigration statusUsually attacking custom. Used to be all custodian had to show is that had, on face, authority to hold this person. Now SCC saying more than that. Can look at reasonableness of decision and hold it to same std of review as other admin decisions. Secondly, will also recognize that HB might attract certain procedural obligations associated with natural justice and fairness, and those too can be reviewed by court.Helpful because 1) non-discretionary remedy and 2) reverse onus.D. MandamusThere to deal with wrongful inaction or failure to make a decision. Used to compel the performance of a public legal duty. It is a coercive remedy. Certiorari quashesProhibition prohibitsMandamus compels performance of a public legal dutyIs it owed to applicant? Has there been a demand for performance of that duty? Has there been a refusal to the demand? Mandamus also lies in relation to adhering to the law. Court must adhere to relevant not irrelevant considerations, must accord with natural justice and fairness. Fairly flexible remedy. At base lies the concept of the public legal duty. If public authority fails to follow mandamus order, may lead to contempt order, or a fine, and maybe prison but highly unlikely.A more recent case is Apotex v Canada (pharmaceutical patent infringement case), more exhaustive case, some expand on Karavos caseKaravos v Toronto and Gillies[1948] 3 DLR 294 (ONCA)Commissioner of buildings states that he does not consider building owned by applicant at SW corner of streets constitute existing hotel, and he gives reasons. Mandamus is properly called and recognized as an extraordinary remedy, and it is not granted by the Court if an applicant for it has any other adequate remedy. The object and purpose of it is to supply the want of other legal remedies. It is appropriate to overcome the inaction or misconduct of persons charged with performance of duties of a public nature.Before remedy can be given, applicant must show Clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced.The duty whose performance is sought to coerce by mandamus must be actually due and incumbent upon officer at time of seeking relief and writ will not lie to compel the doing of an act which he is not yet under the obligation to performThat duty must be purely ministerial in nature, plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powersMust be demand and refusal to perform act which is sought to coerce by legal remedyAs a general rule, mandamus will not issue to compel a board or tribunal which exercises a discretionary power, to exercise that power in a particular way. Mandamus may be used to order the tribunal to exercise the power, but not to dictate how power should be exercised. But in certain circumstances, a court will order a board or tribunal with discretionary power to use it in a particular way.Bailey v Town of Spruce GroveSupreme Court Action Number 88819 [unreported]Court apparently ordered town to issue a permit even thought it had the discretion to issue permits. Argument is that court can issue mandamus to compel a statutory decision maker to perform duty. Duty is to be contrasted with discretion. So court cannot compel the decision maker to exercise discretionary authority to achieve a certain result, ie, issue permit. All court can do is compel statutory decision maker to consider the application but can’t compel it to decide in a certain way.In Bailey, court said that’s true, there’s this longstanding distinction but here, if the decision maker had acted lawfully, there is only one decision: grant the permit. So at the end of the day, court ordered the permit, in effect saying to decision maker to act according to law.General Duty to Enforce the LawAll deal with question of: I have authority in admin of a scheme, to exercise my discretion as to best utilization of my resources, to make certain kinds of administrative resources in admin of that scheme. Can mandamus be used to enforce a law or make me enforce it in a certain way?Selective enforcement because there are only so many resources to deal with a large issueSo can you actually go to a court and compel?Blackburn caseHe was particularly upset because commission police in London was not enforcing certain provisions wrt to gaming in London because there was a question as to legality of gamingOffending Blackburn because he wasn’t even making an attempt to enforceYou will not investigate or prosecute any matters involving theft of property over a particular amount that would be failure of duty lying upon police to enforce the law. Unreasonable and unjustified.Mirrored in Vancouver caseCorporation of the District of North Vancouver v National Harbour Board(1978) 89 DLR (3d) (FC TD)Facts: Deep Cove was populated by all manner of house boats, etc. Board had discretion in this enforcement. But here court issued mandamus. Because this wasn’t a carefully considered decision based on resources and results, it was a total failure to do anything. They said it was consulting. For 2 years? Court said you have duty to manage the harbour, by not doing anything, failed in that. In other words, this was an unreasonable decision that could not be justified.Distribution Canada Inc v Minister of National Revenue(1993) 99 DLR (4th) 4 (FCA)Facts: People back and forth from Canada to US. Department took the view that it’s costing us more to collect these small amounts of duty, to process these numbers of people creates huge line-ups at border crossing. At the end of the day, the responsibility of the minister is to maximize remedy under the statute. This would cost the government money, which runs contrary to one of the purposes of the statute.Pecover v Bowker(1957) 20 WWR (NS) 561 (ABCA)Facts: Application against U of A saying attendance was legal right if met academic standards specified. Counter argument was that attendance at a university was a privilege and that university had power to set own standards. Court held mandamus would not lie to compel U of A to accept a particular student as that was a matter of discretion and court could not compel a discretion to be exercised in a certain way. Mandamus was issued to compel proper authorities to consider application as it was demonstrated to Court that authority who had made the decision did not have the delegated authority to do so. Mandamus and the CrownThe crown enjoys certain immunities. At one time, the largest of these was immunity from tort liability. That has now ended, but there are some remaining immunities. From pov of this course, the crown is immune from coercive orders such as mandamus or injunctive relief.Why is the crown immune? Both of these orders are coercive in nature, that is, failure of crown to comply, means you can take steps against the crown to impose fines on it, find contempt of court and perhaps even…imprison? Why impunity? No one knows, product of history. Used to be ruled by King. Couldn’t see how could enforce torts, say, against the King. But they’ve confused the personal immunity of King with immunity of the state. Problem is that these immunities have been carried on in unthinking way for a long time. We got rid of immunity of tort because made no sense because the way that courts using the law to do that was starting to make law look foolish.Courts will, generally, with exception of Belzil in Opi, work very hard to narrow scope of these immunities so that they cause minimal interference with award of remedy in deserving case.Lee v Workman’s Compensation Board[1942] 2 DLR 665 (BCCA)Shows operation of this immunity or language concerning this immunity and you’re dealing with the continued payment of worker’s pension.Facts: Act precluded voluntary transfers of property. The argument was it wasn’t a voluntary transfer, he was paying it in settlement of a bona fide debt, so ought to be restored. Argument is that mandamus ought to issue the pension that was unlawfully withheld. Here you’ve got statutory authority saying can’t do that, Crown’s money, can’t compel the crown through mandamus. This is an argument of a desperate litigant. Court pointed out that it’s different there. Different because you have distinction because used historically to narrow use of mandamus against crown. Authority to issue the pension has been given to WCB. They are a persona designata (stat authority conferred directly on this statutory authority/officer). As a persona designata, mandamus will issue against them. Similar distinction employed between agent of legislature and servant of the crown. When you say agent of legislature, you simply mean legislature has directly conferred by crown. Servant of Crown just given job to do, not directly conferred. If you can step out of the immunity, you very much narrow the scope of any immunity. Here, it was moneys provided to WCB. Other question is what do you mean by “the Crown”. It’s more than just jewel headgear sitting in tower of London. That’s where any attempt at definition ends. Law says it refers to any central department and apparatus of the state. In addition, you have servants of the crown, public servants in those departments. Then you have agents of the crown, individuals/agencies/tribunals which are set apart from central apparatus. These are all very amorphous kinds of distinctions. They’re not nice pigeon holes.Chapter 5: Use of Private Law Remedies in Administrative LawA. Declaratory JudgmentsDeclaration is perhaps most flexible of the remedies in administrative law. Imported from private law for that very reason. Because of difficulties with certiorari, there was resort to declaration as an alternate remedy. Got around some of these technical issues. A declaration comes from civil proceedings between citizens. It is simply nothing more than an authoritative statement of a court as to legal rights/obligations/status.“you’re liable in negligence”“You owe $500”It doesn’t quash like certioriIt doesn’t compel like mandamusIt just declaresIt is seen as a remedy without any biteIn civil proceedings, would usually issue a declaration on law or legal rights, may issue injunction, etcIf someone didn’t adhere to declaration or statement of the law, then you would have to take enforcement proceedings on the basis of the damage award or injunction. Can’t really do much more with a declaration. It’s just a declaration. Why it was thought to be a particularly remedy in public law matters is it’s free of technical requirements and you can trust government to conduct itself according to law, right? Came in in 1910, Case called DysonMr. Dyson said I’m being asked by inland revenue authorities to provide statement of my landThey will let me know how much tax I’ll have to payWhy should I do this work for you, thinks Dyson. Requiring such a statement from me is illegalCould have just waited for them to proceed against him then said not want to do that, they can’tThen he decided to be proactiveHe went to court to seek a declaration, that their requirement that he provide a value of his land was unlawfulThe court said yes, very useful remedy It declared very authoritatively that gov agents would followNotion also engaged wrt res judicataIf you go to a court and see declaration as to your rights/what law is, then it becomes res judicata between you and another partyIssue is determined as between the two of youIn that sense the declaration has determined the legal situationYou can appeal it, but you can’t go back and question it againNvtl, it is not res judicata between any other partiesIt’s precedentThe parties whose behaviour is ultra vires can ignore itBut do so at their perilThe parties for whom the declaratory order made can also ignore itThe government expected to follow the law, and if they don’t, set themselves up for malfeasance of a public officeAlso have, in Lobar, a nice claim for exemplary or aggravated damagesThe deterrence of this kind of unlawful gov action will be primarily in court’s mindLobar was a prisoner so only got $430 but $10k was a smack to governmentIt is the primary means of remedy when impugning subordinate legislationTo avoid any kind of argument that the particular matter is legislative or policy, therefore not ok for certiorari, then go for decUsed for administrative orders Used in a planning context to attach to planning approvalsIf there are a number of conditions, and you only want to attack some of them, must be careful in getting declaration for some doesn’t strike the whole planning approval downThere to decide questions of personal status like right to hold office (so we don’t need quo warranto)Secondly, there for right to pursue particular occupationGenerally not available to a hypothetical issueWith the matters placed in exclusive jurisdiction of another tribunal, can only use declaration in supervisory way, ie, to declare action ultra viresBut if not in exclusive juris of another tribunal, could go to court and strike mater down as ultra vires and then ask court to exercise that jurisdictionFor our purposes, general use is challenge general action or inaction you believe to be ultra vires or illegalArose out of context where people used decs for Ks or relation to commission of a tortIt was said that party seeking declaration must have a legal right which is effective, a legal right that has been violatedIn public law, the remedy has expanded in terms of the standing of parties to seek itIn this regard, courts have said you have a private right affected, good to goIf violating of public right, case law shows you should also show you have private right affectedBut courts lenientAll you have to demonstrate is you have been extremely prejudiced by decisionRelation to con matters and other public matters, courts ready to allow public interest standingCourts esp concerned with if there is no other way to bring this challenge to legislation to court’s attentionRestrictions on public interest are largely gone nowOther parties may be more directly affected, courts might say you don’t have necessary standingDiscretionary remedy, goes back to equitable rootsCourts not grant if compliance will be impractical, lead to serious harm or inconvenience or party has sat on rights and not sought remedy in a timely mannerLast question to think about; interim declaration (odd)Arose because of crown’s immunity from injunctive reliefWhere necessary to seek injunction to preserve status quo (ie interim junction), if can’t get injunction, maybe can get interim declaration and thereby stop government at the interim stageProblem with remedy is you’re basically saying at early stage with limited examination of facts that parties have the rights they allege to have and then will determine that at a full action laterAn interim declaration that a party has a certain right must be determined later by full trial to see if they have the rightFor that reason, courts have said generally said no such thing as interim declaration (Law agrees)It’s another attempt to circumvent an unexplainable immunityLebar v Canada[1989] 1 FC 603 (CA)Facts: Person expected he’d get out of jail at a certain time. His calculation of end of detention was based on another case in which court talked about calculation of certain credits for remission of sins. Should have gotten out at a certain date. Sues on tort of unlawful imprisonment. He’s being held without authority for 30 days incarcerated when he should be released. He got $430 for imprisonment, $10 a day (so 43 days). He got $10k in aggravated damages. Government’s argument was simply: the Macintyre case was res judicata between Macintyre and prison authority/Canada. It was only the law wrt MacIntyre. Didn’t govern any other case. It was a declaration in that case. Therefore, each and very prisoner thought to be treated the same, would have to get a declaration to have their incarceration determined accordingly. That we can rely on the fact that Mr. Lebar would serve out his full sentence because he didn’t get application for abbreviation of sentence. Issue: value of the declaration.The court took the view that yes, suit may have been res judicata between the two parties, but it affects hundreds or thousands of others in similar situations. We can expect government to follow the law. If it doesn’t like it, should have appealed decision in Macintyre, asked for a stay of decision in Macintyre and debate that but not require each and everyone to apply. Here, government not following the law.Therefore have aggravated damages. Egregious action of the government. Didn’t act in good faith, in full adherence to the law. On that basis, that Lobar does establish that even though declaration is res judiciata, can have wider influence, government is bound.B. InjunctionsVery useful remedy in public law. Can be prohibitory/mandatory. Some overlap. Injunction can be interim or permanent.In interim form during course of proceedings permanent at end of proceedings. In public law, we are more concerned with interim proceedings than permanent injunctions. Example of wanting interim then permanentInvolved with dispute with landowner who has leased part of property for something like cell tower or transmission lineWant more moneyNegotiations broken downThen they said will go on to the land and sever some linesYou want to stop thisSo you go for an interim injunctionAt end of the trial of action dealing with the claims and K argumentThen want permanent injunction that stops them permanently, after them for contempt of courtInjunctions can be obtained ex parte but usually on notice. Courts don’t like ex parte proceedings; hearing from one side without other doesn’t fit within adversarial model. Only in most extreme circumstances will a court grant ex parte injunction like if you alert the other party, they will go out and do that damage you’re afraid of. As equitable remedy, parties must come with clean hands. Can’t sit on rights or not have pure motives. Can have opportunity to resist an injunction based on equitable nature. It’s discretionary like all public law remedies. It is like mandamus. A failure to comply with order of the court can lead to further sanctionsThere are a number of questions for its use in public lawWhen resort to injunctions, they are to be granted equally, ie, use the same principles, make no adjustment for the fact that it’s sought against public authority. Apply in same way with private individual. Some people resisted because government authority is different from individuals. Now, clearly established in Metro Stores and RJR McDonald that you must consider the public interest. When you’re dealing with two individuals on an application for interim injunction, you don’t usually consider the public interest. So there has been the development of a different treatment or approach when dealing with statutory authorities vs private parties. Injunction in private law is very different in public lawStanding similar for declaration, ie, you’re looking for some infringement for private right or interest but court has assigned significant latitude to thisYou’re not looking solely for strict infringement of private legal right or K.Ex rel: att gen or minister of justice always have standing before the courts because this person represents the public interest. AG have control over your rights and that discretion can never be challenged in court.Don’t happen so much anymoreAlleged infringement rested in tort or K, sometimes property, but you had to establish some sort of right recognized at private law. This is no longer recognized at public law. We are recognizing broader interests. More often than not, go for interim injunction until have final determination. Courts more ready to grant prohibitory interim injunctions. Less willing to grant mandatory injunctions solely because that may be granting the whole remedy at the interim stage, ex, prisoners argued have right to vote. Quite involved piece of legislation, want to vote in the next election, want a mandatory interim injunction to permit them to vote. Problem: court on summary proceeding to compel gov authorities to allow them to vote. So what if they turn out later that they don’t have the right to vote. You’ve given them the whole remedy. So courts wary of mandatory injunctions.In US, greater use of mandatory injunctions aka civil something. Used to compel parties to comply with rights of African Americans, to desegregate schools, etc. These civil rights injunctions allow a court to become the superintendent of a school district, court will determine how that district administers, funded, etc. Concern on this kind of remedy is it’s extreme, involves the court in undertaking work of administration, so violates their separation of powers in the States. So again courts are leery about mandatory injunctions, may take them in direction not want to go. Has arisen in Canada for redrawing electoral boundaries on basis not comply with constitution. Could have court that says boundaries not follow constitution, so will redraw electoral lines. So instead, courts simply say they violate the constitution, then allow government to comply with the necessary action to comply. To avoid the conflict with judiciary and executive. What are the principles that govern availability of injunction?Wittal v Saskatchewan Government Insurance(1988) 51 DLR (4th) 641 (SKCA)Looked at notion of the interim injunction. Court said not useful remedy. Not supported by law. But concluded that cases all wrongly decided so impugned provision permits interim declaration of rights or correctly decided in which becomes necessary to reconcile with the cases.RJR-MacDonald Inc v Candid (Attorney-General)[1994] 1 SCR 311Principles are taken from a private law patent infringement case. In that case, court suggested there is a three-fold-stage test for injunctionYou have to try to establish that the claim is not frivolous or vexatiousIt used to be, before American Cyanamen, must establish a very high threshold caseIn that case, said that plaintiff establishes a serious issue/question to be triedIe, there is some merit to the claimNot just a flight of fancyApplicant must establish that he/she/it will suffer irreparable harm if injunction not grantedUsual way we remedy harm is by damagesSo if you’re talking about violation of interest or right which cannot be adequately compensated by damages, irreparable harmSo if you have interest not easily quantified or if violation occurs you will never be restored to position before, then you’ve established irreparable harmBalance of convenience (or inconvenience)Court is asked to balance what is the inconvenience to the defendant for granting the interim injunctionWhat is the benefit to the applicant?If I don’t grant, what is inconvenience to applicant, what is benefit to defendant?Look where the equity liesSo if the balance of convenience favours applicant, then the injunction should be grantedIf the balance of convenience not favour applicant, then injunction should not be grantedLook at who will suffer greater harm from granting or not granting of interim injunctionThere is some law to the fact that you may be asked to provide an undertaking in damages if injunction grantedFacts: Protracted litigation between gov of Canada and major manufacturers of tobacco products. The government wants to restrict the sale of these products. Without taking the step that should be taken, which is to prohibit cigarettes. Those kinds of broad prohibitions just lead to additional illegal activity. The tobacco manufacturers don’t like ugly pictures of deteriorating organs. Companies said violates freedom of expression. Canada’s leading tobacco manufacturers are seeking interim injunction (aka stay, which is same thing but different context), to stop government from enforcing these regulations pending the final resolution of this challenge in the SCC. The companies will have to spend a lot of money to change their displays, packaging, etc. They think they’ll be successful. Government thinks this is very important so must move forward. Court basically applying standard approach from Metropolitan Stores case. In that case, court was asked to consider what would be criteria for a stay, which involved a constitutional challenge. The court in that case said that a stay is the same as an interim injunction. Stay operates in relation to tribunal proceedings and is an order of the court telling stat tribunal not to proceed. But injunction usually between parties, but effectively same remedy with same principles. With one important thing: at balance of convenience stage, court must broaden investigation beyond convenience/inconvenience of parties to look where public interest lies. What is the harm to public interest if application is granted or not granted? Look beyond he parties’ interest to public interest. You start with basic premise that legislation valid until struck down. If it is legislation having broad reach and impact then to grant an interim injunction suspending that legislation could have considerable impact on the public interest. So the court on those things, courts will be on the side of allowing those cases stay in play until final decision madeBut in exemption cases, where a few parties are affected, usually stays, may be more willing to consider interim injunction to restrain apparently valid legislationIs this a frivolous or vexatious matter? Is there a serious issue to be tried?Yes serious issue.One of the chief indicators is the trial and appeal courts different on the challengeThis is a live legal issueNot a vexatious matter to grind the government down the application of the legislationCourt said at this stage must be careful because taking a really brief lookNot really ruling on the meritsSo not getting really deep if there’s issueOnly if there’s a pure question of law might you be able to dig deeper into caseIs there irreparable harm?Is it something that can be compensated by damages or will it involve, ex, significant loss of business? Or really great harm to the business reputation that can never be fully repaired?As you see in Musqueam, when you’re dealing with land disputes between aboriginal and gov, and they say we have historic connection going back centuries, but gov says will sell it or do whatever. Can’t just give them money, that’s irreparable. On that basis, courts have tended to say yes, must recognize thatHere, if you’re going to spend some more money to change POS marketing, change packaging, that won’t be irreparableWill hurt, but likely won’t destroy the businessSeems like a good case for damagesCourt came up with interesting argumentSaid it’s a charter claim and there is opportunity under the charter to grant damages (S 24) but that part of the law really isn’t developed. It’s really unclear as to whether or not a P will be successful for damages so we haven’t decided for sure, so could be irreparableBalanceCourt talks about validityApplicant must convince court of public benefits which will flow from granting of reliefRespondent must show public benefits from not granting the reliefIn addition to convenience and inconveniencePublic interest considerations will be more important in exemption cases than suspension cases (make sure you didn’t mix those up)Harm to public health if you suspend this legislation will be significantInjunctions against the CrownCrown enjoys immunity at common law from injunctive relief. There has been statutory recognition in crown proceedings legislation. If you give injunction against officer/servant of crown that has effect of injunction against crown, can’t do that. Crown liability legislation found across Canada. It wasn’t found in federal legislation for federal crown before, so common law governed. When they last changed crown liability act for federal crown, imported the provincial provision in federal statutes. The common law position was this: you can’t get an injunction including interim injunction against the Crown. So you have a fight about what constitutes the Crown. There is a lot of confusing case law. Generally agreed that Crown consists of the central departments of state, things like cabinet, etc. At common law, servants and agents of the crown could be restrained by injunction in their personal capacity but not as servants or agents of the crown because must act lawfully, but when they’re not acting lawfully, then acting in personal capacity, can restrict. Given people a public and private case: to limit scope. Say this is a statutory power, powers on which directly conferred and you can get injunction against them. Degree to which you can limit crown to a narrow scope, you have a major exception, at common law, to crown’s immunity.Canada (Attorney General) v Saskatchewan Water Corp(1993) 106 DLR (4th) 250 (SKCA)When they put place the legislation, fed and prov, were they adding to the crown immunity or were they simply reflecting the pre-existing common law with the big exception wrt crown servants or agents?*RATIO: yhey’re not doing anything more than reflecting the common law. There was no major change to common law position, just codifying. Here, see if SK water corporation is really crown or if it’s apart from the crown and therefore subject to injunctive relief. He concludes, for variety of reasons, that it is an agent of crown, but it is separate and part. It can be used in its own name. It can K in its own name. It can act on its own without the necessity for authority by orders in council, so stands apart. Sufficient grounds to see that its exercising stat powers but not functions or powers of crown. If it’s a function of the crown, immunity. If not function of crown, on person, exercising powers in own name, then subject to injunctive relief. This particular kind of opinion is in keeping with modern views it that immunity based on medieval common law no longer appropriate. We hold government accountable in a lot of ways and gov hasn’t collapsed. So he’s on the right side of that, good way of doing it. Law thinks best way to deal with itAUPE v Alberta(1996) 197 AR 1 (CA)AB case dealing with crown’s immunity. Suggestion is court ought to limit scope of stat immunity. Argument based on crown’s immunity from crown act relates to civil proceedings and not crown application for judicial review. So in attempt to limit scope of any immunity to only civil proceedings, but not to make it applicable to judicial review applications, which is what we’re primarily concerned with.Belzil asks for authority. No one could quote any. Court is really restricted to AB, and dismisses one because it arises out of telephone application. He was suggesting it was a quick and hurried process so can’t count on it. But if he had followed the same spirit as previous case, he should be looking for ways to limit immunity, not ways to uphold. HL said it only applies to civil cases for judicial review. There is a nice authority on which to rest the distinction, Belzil did not.Musqueam Indian Band v Canada (Governor-in-Council)2004 FC 579Facts: Serious issue, irreparable harm, balance, public interest. But now engaging rights of aboriginal groups wrt land to which have claim. They do have a legitimate claim that ought to be explored in relation to aboriginal land claims. The band was worried that claims will not be hard, not be dealt with, land sold, something beneficial occurs like towers built or residential. You suffer not developing as quickly, but not a real harm. There’s the irreparable harm of the musqueam. The argument is can’t grant injunction because it’s the Crown. Court said we prefer to see the crown immunity legislation, doesn’t change common law, but also restricted to civil proceedings, suits under s 17 of the federal court act, not judicial review under s 18. So following the lead of M in the home office, we see a good line of authority which suggests that crown immunity, you can circumvent it. There is growing authority for this if you’re on judicial review application. Courts are loathe to recognize the immunities in a constitutional action because of broad remedial abilities. If courts see any limitation to these remedies as bad. If you have a constitutionally based claim, could be protected from any crown immunity argument.C. DamagesLargely forgotten. Are a way of remedying people harmed by gov action. Crown has complicated notion because for much of history until 1952, crown was immune from liability in tort. The case law is all over the place. Dealing with isolated cases, hard to sense any common theme or principle involved. This particular remedy is in no-man’s land between public and private law. Not the usual remedy in admin law and judicial review. Largely supplanted by other remedies. Have to do damages proceedings. In private law perspective, courts looking at it saying public auth and private individual are different. You are not under obligation to protect someone from harm of another. You can stand by. You may have to with children, but ignore that for now. The law won’t hold you blame. From moral point of view, you’re scum. But you’re not obligated to go help. But we have government in place to protect us from others. Government is different because it does things we don’t do. So difficult to take a private model of tort liability and import to public. Also, government is world’s greatest defendant. It has the deepest pockets ever. Other issue that arises is if we sue them and hold them responsible for making mistakes in making decisions, you know what will happen to them? They will be frozen, fearful, no one will make a decision for fear of liability.Maybe we should argue is that all we want to prevent is making bad decisions. But we are really worried about people who exercise discretion. One of the people who enjoy the greatest amount of immunity are judges. They will be afraid to make decisions, to take bold initiatives if they think they will be responsible. Same with crown prosecutors. Sometimes better to protect even someone who’s a bad judge than put the whole system at risk.Invalidity by itself does not by itself create liabilityThe fact that a stat tribunal or official acts in an ultra vires/unlawful manner does not make it liable in damagesYou have to find that it’s not only ultra vires or illegal but that the conduct or harm complained of falls within parameters of a recognized tortThe fact that conduct is tortious doesn’t mean its ultra vires.You can act perfectly lawfully and find yourself liable in damages for tortWe are not so much about the ultra vires of the question, we are looking at situation where gov action or inaction constitutes a tort.You are offered four possibilities:Nominate/intentional torts: Cooper caseNegligence Misfeasance in a public officeConstitutional tortsThe last two are uniquely government tortsProblem with Dicey was that government was fundamentally different form individuals. The recognition that the crown should be held to same extent as a person in like circumstances. But Dicey still holds because talks about equality under the law, and we still like that notion.Nominate tortIf act of conduct falls within a recognized tort (ie, trespass, usually), you’re there. All the defendant can argue is that they have statutory authorization for their action. Ex: police officer arrests someone, trespass to person. Holds in custody, that’s false imprisonment. Defence is statutory authority to do this. If they have statutory authority, end of action. State has said that action is lawful. Cooper demolished the house. Acted ultra vires to in issuing order, so you don’t have stat authority to demolish the house.Two elementsExercise of statutory authority is unlawfulThe conduct complained of is tortiousNegligence/Misfeasance in a Public OfficeHere, doctrine of ultra vires not very clear, really focussing on if there is a tort, in this case negligence. Government tends to make mistakes. To what degree can we hold government liable and on what basis?Principlesif government doing something like you and I, probably not hard to hold it liable in negligence. I drive a car negligently, I breach a duty of care to pedestrians, I injure them. I will be found liable. If you’re driving a government car, it doesn’t make a lot of difference. (He said this was one..he didn’t really number these…) They’re just not the same as a private citizen. Must make sure laws of negligence are consistently applied. The famous power/duty distinction. Duty you fail, can be held negligent. Power, can’t be held in negligence, unless did it negligently. Then changed into nonfeasance/misfeasance. Not helpful. They’re grappling with how to insulate and immunize certain kinds of government decision making that don’t make them satisfactory targets for a reasonable analysisGovernments act unreasonably but doesn’t mean same unreasonableness as negligenceAnns two-pronged approach for public authority case:Is there a prima facie duty of care? Determined by reasonable foreseeability of harm. Willberforce collapsed the prima facie duty question into reasonable foreseeability of harm. Proximity became something on reasonable foreseeability of harm. This is a plaintiff friendly-testAre there any factors which served to limit or negate the existence of the prima facie duty of care, the persons to whom it’s owed, or the nature of that duty? At this level gave birth to policy operational distinction. For things that are not reasonably looked at on a reasonableness standard. For day to day things that we all do, they are operational distinctions. The other side is policy. How do we distinguish? Finally ended up with statement in the Just case from BC that policy are broad policy-type decisions made in a high level of government administration that are not suitable for re-examination in a court of law. Operational is the practical implementation of policy decisions. Ex: Policy is examining rock faces to make sure rocks don’t fall down when people climb them. Operational is how go about doing that. Court also said do not brand as policy that which is doubtfully so (like in CUPE). Said majority of things will be operational in nature. Someone else said it had to be more than reasonable foreseeability of harmYuken yu? CaseHe said it has to involve something else, its proximity, and proximity is a policy decision and whether or not in these circumstances it’s fair to recognize a duty of care. Then when he went to Anns after a few years, he got the HL to say Anns was wrongly decided 13 years later. They suggested that you have a different kind of question at the first stage. The SCC refused to acknowledge that they jumped to fast to adopt Anns; to this day they don’t admit they have broken with Anns.Cooper v Hobart[2001] 3 SCR 537They basically went to the same approach that the English are using. New case of liability. Holding government official liable in regulatory scheme to a potential broad best of investors who can all claim there was failure to protect them from harm. SCC refined Anns, kept the two-stage approach, but basically went back to main stream of things. First stage: prima facie duty stage. No longer based on reasonable foreseeability of harm. It is based on: are the parties on a proximate relationship? A relationship of sufficient proximity that the defendant ought to have taken care not to cause injury to the plaintiff. Definition of proximate based on existing definitions and built incrementally. And/or can be new categories recognized where parties are in a close/direct relationship where it would be just to impose duty of care on defendant not cause harm on P. What kinds of things will result in such a close relationship? Reliance, the expectations of the parties, the nature of the statutory scheme, representations, the kind of property that’s at risk, etc. The courts will look at situation between parties and essentially conclude as a policy decision that there ought to be recognized a duty of careThey openly admit that it’s a policy decision It will entail a balancing of interest.Second stage: Are there factors that could alter the duty of care? Need to look at the effect on the legal system, the position of the parties. In this approach, we have retained, outwardly, the Anns framework, but we have put proximity in the first stage to determine the prima facie duty of care which calls for a very close and direct relationship. At the second stage, we have another policy decision, which is to look at other policy considerations. So two policy considerations.This is a scheme that is passed to protect the public, no specific duty owed to the publicWould have changed if p before investing had asked registrar of mortgage brokers if there was concern with particular something. Then gotten direct response. Then you would have had reliance, etc. But that didn’t happen. Don’t have a sufficiently proximate relationship. Second stage, would be a policy decision. There’s the unlimited liability issue. Edwards v Law Society of Upper Canada[2001] 3 SCR 562Essentially applied the same approach, the new one, primarily focused on proximity. There was not sufficient proximity between P and LSUC. These people were part of a 3P scheme, not related, so to turn to LSUC to police lawyers’ trust accounts is a bit of a stretch.Odhavji Estate v Woodhouse[2003] 3 SCR 263New 2 stage approach. Proximity, direct close relationship. Are there considerations to limit the prima facie duty of care? A shooting, investigation of that shooting by police. In allegations, police fail to comply with statute. As a result, relatives suffered significant emotional harm. The suit is broadly based, he is the chief. The court applies Cooper v Hobart two-pronged approach.They thought at the end of the day that it was reasonably foreseeable that the failure of the officers to follow statute would harm appellants. Would chief’s failure to ensure such cooperation or compliance with statute, does that, too, give rise to foreseeable harm of appellants? Yes. Do we have a sufficient proximate relationship to give rise to a prima facie duty of care? They said the chief has certain obligations under statute, and these obligations are designed to ensure the public is protected and well-served. The court saw that there was sufficiently close relationships between chief’s alleged failure to do that and the harm. If the chief failed in this duty and officers failed in conduct as a result, public harmed so sufficiently close relationship. In this case, court as a policy matter, thought it was just and appropriate to recognize something on chief.Tort of misfeasance in a public officeRoncarelli v Duplessis: premier did not have the ability to do something about the JWs through the law. Action brought under civil code because restaurant of Roncarelli was effectively closed. SCC presented with opportunity to talk about unusual government tortMalice in this sense, makes the action ultra vires, also provides basis for liabilityWhere he went further in this case was notion that if a public officer knows that he does not have authority he exercises, and he exercises it causing harm to the plaintiff, that that will be malice. Malice was defined broadly: knowing exercise of authority for a purpose foreign to the statuteYou are exercising your authority deliberately for an improper purpose, you know it will cause harm to a party, then have tort Weakness of case was at the end of the day the court ducked out under Quebec civil codeSince that time, tried to pull all cases together and create independent action…these efforts largely started in Australia. The concept of misfeasance in a public office is an Australian idea, then picked up by UK.Three riversCould arising in one of 3 ways1) conduct that is deliberately intended to harm or injure a person or class of personsCalled targeted malice 2) public officer who acts with knowledge that he has no power to do the act complained of and act likely to cause harm3) Deliberate unlawful misconduct? (missed this)This is distinguished from a public officer who, in good faith exercise of office, acts in ultra vires fashion and causes loss or damagesNot after people through inadvertence or accident causes lossLooking for deliberate misconductVery unique government tort because only government or public officers can be held liableConstitutional tortS24 of charter, gives court a broad, unfettered, ill-defined power to remedy charter violations or breaches. The question is can you award damages for charter damages or breach. For acts that are unconstitutional can cause damage to people. Not a private law tort. It is a suit against government for the unconstitutional actions of its servants/officers/etc. So you’re suing government directly. This isn’t vicarious, this is direct liability against the state for charter violation.Warren1) SCC recognizes concept of a constitutional tort2) the potential in bringing such an action and succeedingA) must establish that a right of charter might or has been breachedB) must establish that damages are an appropriate and just remedy, following language of s 24. That means an alternate remedy might be better than damages. How to determine if just remedy? Look at related functions of remedies.In the latter you are more interested in deterring others, not just the same person over and over.In terms of constitutional damages, compensation is a primary focus, but damages are reward to vindicate the constitutional right or interest to defer state agents from committing future breachesLooks like negligenceEstablish breach as just and appropriate and then look at other policy factors which could come into play which could negate or limit that liability at constitutionLook at existence of alternate remedies like private law action, declaration under s 24 and again, one of primary concerns, preservation of effective government, that the chilling effect on the fearless administration of law is just too great to allow liabilityJudges enjoy a total and absolute immunity of their discharge of officeA judge can be motivated by bad faith but you can’t sue the state about thatAllow them absolute immunity, not qualified one, which is a good faith immunitySo look here, if you awarded damages, would you have chilling effect? If so, then probably not a good idea to awardMackinCourt cannot hold gov constitutionally liable for simply enforcing statute found unconstitutional later. That makes sense. Why should anybody worry that they shouldn’t enforce something that there is the potential that it may be unconstitutional? As long as there’s good faith reliance.Damage awards are made in s 96 and s 101 courtsThe court is a court of competent jurisdiction in the sense that it can deal with charter challenge and has jurisdiction to grant remedy soughtA provincial court did not have this jurisdictionVancouver (City) v Ward[2010] 2 SCR 28Statutory Attempts to Limit LiabilityPrete v Ontario (Attorney-General)(1993) 16 OR (3d) 161 (CA)ON legislation. Limitation of actions provision. When you’re talking about a constitutional violation, any statutory attempt to immunize government from liability or limit gov liability will be seen as unconstitutional to the extent that it limits the court’s broad and unfettered jurisdiction to grant a broad remedy under s 24. In this case and Nellis (referred to in this case). Chapter 6: Limitations on RemediesA. Locus StandiStandingLegal status to seek remedyUnder court’s discretion because court has some discretion as to whether or not a party has standingThe broader court views standing, greater availability of judicial review, narrower, more limitedCertiorari (Martineau) is very broad standardThis is a remedy which lies to correct the general machineryMandamusYou must be that person to whom that public legal duty is owedHughes v Henderson(1963) 42 DLR (2d) 743 (MNQB)Applicant was seeking mandamus to compel the municipality to terminate or rescind a contract. So they could get the land back because he wanted to buy the land. They owed him no duty to institute legal proceedings so not have sufficient standing to seek the remedy of mandamus. Ladies of the Sacred Hard v Armstrong’s Point Assn(1961) 29 DLR (2d) 373 (MNCA)In order to seek assistance of a particular court, must have standing in that court. An unincorporated home owners association cannot have standing. It does not have standing or status in a court of law. How would it seek a remedy as in this case?Incorporate. Corporations have standing, rights of a natural person at law.One of the members of homeowners association. All of us have standing as natural people. If you have standing, you can bring the action on behalf of your neighbours in a representative capacity.Stein and other cases that followSo the court says looking at the statute, this statute is designed to get the broadest participation in this so we will recognize itSo standing is a discretionary decision, and court will look to legislation to see if broader standing is called forStanding to appealDoes a tribunal have standing on an appeal from one of its orders/decisions? Right of a tribunal to appear in a judicial review existed where decision being appealed was quasi-judicial and the ground of appeal was a valid exercise of the jurisdiction of the tribunal.Tribunals have much more restricted standing in appeals in contrast to individuals. Here standing must be provided by statute or go to jurisdiction only.Northwestern (page 496)It seemed to be unseemly for an adjudicative tribunal to enter the ring in any appeal to its decision, to make itself an effective party, to defend its actionsThis is not an adversarial situation, it’s adjudicativeSuggested that tribunal can participate as amicus curiae but not to take a positionThe tribunal has a limited role because of the fact that such an adversarial representation may really cast doubts about the justness of the administrative proceedingsO’HanleyBut says if legislation is very specific and says lower tribunal shall have full rights to participate in appeal, then court will recognize that full right of participationPublic Interest StandingMinister of Finance of Canada v Finlay[1986] 2 SCR 607These cases primarily deal with injunction and declaration. When talked about them, talked about private law routes which affected standing of private parties to get them. You had to demonstrate that legal right was violated or threatened. If it was a public right you were complaining about in terms of violation or threatened violation, you had to show that a private right was also threatened, your private right, or that you would suffer some special damage. This is the test taken from public nuisance cases.Subsequently to that, the courts, in a series of decisions, involving constitutional challenges to legislation saw that there was a need for ab roader recognition of standing. This is the famous trilogy: thorsen, Mcnail and..something. Thorsen involved former chief justice of FC who attacked bilingualism. Mcneil involved censorship laws. Borowski had to do with abortion laws. All of these cases were constitutionally based, before charter. So the question before the court is they’re basically talking about an exercise of a public right to challenge constitutionality of legislation. Court concluded that in an effort to ensure there’s always access to courts, to rule on constitutionality, ie, we shouldn’t let standing immunize legislation form constitutional stuffSo they came up in these three cases the public law formulaIssue is judiciable: it’s the kind of issue court can deal withSerious issue: the applicant has a genuine interest. The anti-busy body rule.Is there no other effective way of challenging this legislation?On subject of charter challenges, charter uses different qualifiers on different rights: everyone, every person guides the standing to complain of a charter violation.Facts: We are not dealing with a constitutional challenge. We are essentially dealing with plain old illegality on part of gov of Canada and its counterpart in scheme, gov of MN. While applicant, finley, can show he’s affected by gov of MN’s policy of social welfare, he has problem establishing that failure of gov to insist that goMN live up to this policy has affected him. That somehow there’s a legal right that would give him sufficient standing that goc ought not to pay money from consolidated fund to pay goMN until comply with cost sharing agreement. Issue: whether you can take public interest standing which you recognize in constitutional cases and can you recognize it in ordinary administrative law judicial review cases such as this on the basis of alleged illegality. Yes, you can. You use the same approach: justiciable issue, serious question, genuine interest and no other way. Want to see all gov officials to act lawfully.CUPE Local 30 v WMI Waste Management of Canada Inc(1996) AR 297 (CA)Refused to use the doctrine of public interest standing to more broadly define stat reference to person aggrieved or directly affected. Language is direct affected, that’s what I means, there is no reason for court to interpret these terms on basis of public interest standing common law. Time limitations for judicial review he leaves to us, not too difficult.CAIMAW v Paccar of Canada Ltd[1989] 2 SCR 983Building on Northwestern case. Probably is not a good idea to limit the participation of a tribunal on an appeal from its decision to simply be amicus curiae or talk about application of jurisdiction or explain record. Very useful to accord when standard is patent reasonability that tribunal gets to argue that decision is not patently unreasonable, that it’s reasonable, that it falls within range of reasonable outcomes, justified/transparent/intelligible. The court benefits on judicial review to have tribunal there to talk about reasonable nature. It’s not just correct, it’s reasonable so therefore must be left alone.Leon’s Furniture Ltd v Alberta (Information and Privacy Commissioner)(2011) 502 AR 110 (ABCA)Building on northwestern case. Reflects further flexibility in courts in their respect. Northwestern dealt with adjudicative tribunal, here dealing with privacy commission. More actively involved in investigation, prosecution and adjudication than northwestern utilities. Court said in that case (Northwestern) must look at particular scheme. Look at role tribunal plays. In adjudicative matter, may be, subject to cases like packer, tribunal plays restricted/limited role. But in case such as Leon’s, court said actions of commissioner, his investigators and appointed adjudicator are more akin to a participant in this particular situation. Therefore, it is important that we hear from commissioner who can argue the merits for decision. Offered to remind you of highly contextualized nature of administrative law. At all times, particularly limiting factors such as standing the courts will speak to flexibility that is adapted to certain cases. So much look to other factors, existence of other parties to make, maintaining impartiality, participation in fairness. If the tribunal does not get engaged in the appeal, no one will defend the decision. If appellate court is to do its role, there has to be two sides. When the tribunal participates in the appeal, it cannot add new reasons, it cannot add further justifications for its decision.Canadian Council of Churches v Canada[1992] 1 SCR 236All the Canadian council churches is there to point out that while public interest standing is broad in right circumstances and Canada recognizes broader pub interest standing than other countries, there is a limit. Limit is there may be other party better to bring the action. Could better assist the court to make decision. This particular body was helping change Canadian immigration act, didn’t like how it came out. They are engaged in activity, so genuine interest. But are they best party to bring to court? Have we hit threshold that if they don’t bring it, no one will bring it? In Canadian council churches, said no, three are real people, 3000 of them, each one of them in a better position to bring these challenges. Will present the court with real case, real facts on which court can make its decision. Why have this limit because we have limited judicial resources. In this case, with such a decision, there was no need to ensure public access to the courts. There was really no case of ensuring this legislation was not immune from judicial review.B. Judicial DiscretionMarion v Regina(1982) 22 Sask R 72 (QB)Alternate remedyCourts in granting extraordinary relief like prerogative writs or counterparts see these as extraordinaire intervention by courts, so parties should be required to exhaust internal review or appealC argue that if statute provides for reconsideration, then that’s something they could be required to takeIf there’s appeal, they could be required to do thatArgued sometimes that court in its discretion, even though grounds exist, should refuse judicial review or remedy on judicial review here there is an appeal that serves as an adequate alternate remedyFooks and Johnstone v Alberta Association of Architects(1982) 38 AR 132 (QB)Discipline of two architects, one is suspended, one on probation. There are flaws in hearing. Both in terms of natural justice and allegation of bias. The suspended architect can appeal under the statute. The probationed one cannot. It’s just the way legislation is set out. So one who could appeal commenced appeal. One would couldn’t sought judicial review. Issue: if suspended architect also seek judicial reviewCourt had another 2 pronged approachOn occasion where exceptional circumstances een found to exist, courts will grant certiorari. Exceptional circumstances is in the case lawAppeal not suitable venue to raise questionWhether question wanted to raise was technically complex so review by non-law body not as effective as appeal to courtIf you fail to exercise right of appeal, that’s not an exceptional circumstanceAsk yourself was the right of appeal an adequate remedy?Look at nature and scope of appealDe novo? Restricted to record?Power of appeal tribunal, can it grant you remedy you’re looking forLook at form of the appeal proceedings; how complex/technicalLook at constitution of appellate tribunal; lay or legally trainedTry to take your grounds and try to make argument that appeal is or is not adequate to deal with those groundsAs Harlequin suggests, look to expeditiousness of appeal proceedings as compared to judicial review, cost associated with appeal proceedingsIf find appeal remedy adequate, then court may be asked to look at special circumstancesIn this case, failure on both grounds. Applicant wanted to complain on both grounds, denial of fair hearing. Hard to approve on an appeal of the record. Now yes, can say revealed through supporting affidavit, but that depends on if tribunal says just look at record and nothing else. At judicial review, can look at affidavit. Bias also sometimes very difficult to establish on the face of a record. Here, the fact that this is a restricted appeal not de novo, can’t cure any defects, makes this not an adequate remedy. Second: in terms of special circumstances, court said here you have people disciplined for same set of circumstances, one has to use appeal, other can use judicial review, this seems unnecessarily duplicate in terms of proceedings. In this setting, special circumstances is should deal with both in same proceeding is how dealt win initial discipline case.Canadian Pacific v Matsqui Indian Band[1995] 1 SCR 3 - Just tells me to see Chapter 2R v Consolidated mayybrun Mines LTdWaiverSee a defect you don’t like, object, make your case, ask the tribunal to make a ruling you like that is procedural fair or just and if it doesn’t, then make sure objection go on record. If you don’t and you sit in weeds and decision comes out and not favourable, then you may find you have waived your right to rely on the procedural irregularity. What if it’s a substantive ground?The law seems to suggest different treatment of procedure vs substantive defectsCan’t really waive a substantive issueCan argue that other side’s view is wrong, but can’t waive it for failure to raise an argument You can’t just by sitting there give tribunal jurisdiction it doesn’t haveUnreasonable delayWaited too long, haven’t moved with certain measure of dispatch to pursue remedy. Highly circumstantial. But if court feels you’ve sat there, haven’t pursued remedy and delay has caused prejudice to a third party, then they may well exercise their discretion against you and not grant you remedy. Bad faithYou’re bringing this not because of legality, just want to grind the other side. You’re bringing it for all the wrong reasons.Abuse of processMelcorDeveloper decided attack certain conditions on a development agreement one condition at a time. Court said bring them all in and we will deal with them at once. Cannot sue by installments.Futility of RemedyRemedy not granted if futile or matter has become academic, or remedy serve no useful purpose.Defects in Form and Technical Irregularities: likely refuse relief where no substantial wrong or miscarriage of justice has occurred. ................
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