FETTERING DISCRETION BY CONTRACT - Amazon S3



ADMINISTRATIVE LAWThere are two main parts of the course:Judicial ReviewSubstantive Grounds – Substance, Exercise of discretion, legal limitsProcedural Grounds – Natural Justice and FairnessRemedies: There is a wide range of remedies available under Admin Law unlike other areas of law that have a limited scope. This includes prohibition, mandamus, certiorari, injunction, declaration, and damages. Administrative law is the review of judicial decisions to decide the legality and correctness of the decision. Any study of Administrative law involves a consideration of the allocation and exercise of public power. It deals with legal controls over administration. The legal controls basically set the structure of administrative decisions. For example, the concepts of natural justice and fairness set out what types of hearings can take place and its structure. The weakness is that Canada appears to not have thought much about government decision making structure (why create a board vs tribunal vs single officer vs public corporation). Administrative bodies were formed out of a pragmatic and organic approach. Why control government decision? We are seeking to enhance individual liberty and, from an administrative law perspective, to protect private property from government interference. We do not want to be slaves following the direction of an omnipotent government. There is a deep seated fear that if government is not controlled and limited by law that it will take away all of our dignity, liberties, and property. Administrative law is also about the allocation of power and its limitations. This is done through constitutional arrangements, experience, history, and tradition. Who exercises public power in Canadian society?Parliament and the legislatures decide who gets power, defines that power, and assigns it. They are seen as sovereign bodies. They are defined fields of authority; they can legislate within their scope in any manner they wish. This was the case until the Charter which put some limitations on the way that Parliament and the legislature could go about this. They can do everything but contravene the supreme law of Canada – which is the Charter. Parliament expresses their power by delegation through legislation. It passes this power to bodies that it, in many cases, creates through legislation and empowers through legislation. Some delegates include the Governor General (federal), Lieutenant Governor (provincial), government boards, Crown corporations, municipalities, and tribunals. The Government still has complete control over defense, foreign affairs, taxes, judicial, and police matters. Over-arching concepts of Admin LawAdmin law was not developed through planning but through pragmatic needWe are concerned with the legal principles that limit public power and the remedies used to enforce these limits. Parliamentary Sovereignty is the principle used to justify judicial review of administrative actionsThere is a debate about the amount of centralization of powers requiredAdmin bodies have been created to deal with mass adjudication, specialized questions, out of a desire for a de-centralized government They are involved in regulatory and social welfare programs which grant them powers of:Adjudication, Rule Making, Policy Making, Enforcement, Research, Investigation, Prosecution, AdvisingThe government does NOT get involved in these questions because They are ill suited to mass adjudication with their formal procedures and long trial time. It is expensive and many affected citizens would be barred remedyThe procedures of the court are not flexible for different approaches to decision makingThe courts lack the expertise of some of the matters and many take too macro of an approach to a micro problem in an industryJanuary 10Debate re: the nature of gov - its size and role in society.Negative view of governmentgovernment is inefficientthe more powers given to government, the more individual freedoms are impairedPositivegovernment (particularly the welfare state) is necessary to protect individuals and provide certain basic rights and opportunitiesStages of expanding government1. Railwaypost WWI - dismantling of the extensive gov. regulation of economy during warPost WWII - creation of the modern welfare stateTerms (in case book):adjudication: decision making regarding disputes or alleged breaches of the lawadministrative adjudication: discretion more broad than that given to courts, because it can be based on what is best in the circumstances in achieving a particular social/political goal. More likely to be between many parties than judicial adjudication rule making: for the better administration of a legislative scheme. created and limited by the enabling legislation and the constitution/charter. (eg. by-laws, regulations, orders-in-council, ordinances (rules of territorial governments).subordinate legislation (regulations, having effect of law) vs. policy guidelines or rules (procedures, may have force of law in practice but not perceived as having force of law.policy circulars: no formal steps to issuance, expresses goals, particular practices of an administrative body.enforcement: civil servants to enforce legislation, regulation, adjudicative or policy decisionsinvestigation: bodies conduct own compliance investigation. eg. liquor board sends in officials under-cover to observe the bar.prosecution: when contravention of legislation, regulation, or policy occurs. eg. law society proceedings, there is a prosecutions branch in the organization. research: where research is important to the ongoing development and relevance of a regulation or administration. eg. environmental, food and drug, etc.Principles:Parliamentary sovereignty: english conception applies most perfectly to a unitary government w/o an entrenched bill of rights or other constitutional restraints on power (b/c these limit the power of parliament) Role of court in such a society is only to apply the law, based on the will of parliament (influenced by common law legal rights).With charter, parliament is not as sovereinWith regards to administration - the job of the administration is to implement the will of parliament (in past legislation was specific and limited in scope, now legislation often lays out broad, bare bones of policy, giving administration power to interpret and implement. Laws are short, regulations are huge. Discretion of the administration is expanded). Separation of Powers: judicial, legislative, administrative have different respective roles and one branch’s responsibilities should not be undertaken by any other. From Montesquieu, who saw that all powers vested absolutely created problems and checks and balances ought to exist through the separation of powers. CONSTITUTIONAL FRAMEWORKParliamentary SovereigntyThe parliament has unchecked and unparalled powers; it does not have to answer or abide by any checks, balances, limitations, or rules. This is an English concept. JudiciaryThe courts role is to apply the law. They have some wiggle room in that the interpretation. They are influenced by some common law rules and conceptions (the right to liberty, property). For much of Canadian and English history, the courts were there to apply Parliament’s will but not to affect or change it. CHARTER EFFECTSNow the Parliament/Legislature is still sovereign, but not as sovereign as it used to be. It is a constitutionally sovereign legislature which means, in Canada, that their powers are limited by the Charter and the Division of Powers. Administration: the role is to carry out the will of Parliament to the extent that Parliament directed the will. They would pass statutes that included:Direct or application of the courtSpecific things that specific people had to doParliament no longer does this; they now legislate in shorter amounts and allow the courts to interpret it. Administration has seen its role grow under the constitutional sovereign parliament.Separation of Powers: No entity should control all aspects of power. This originated in France where all the powers were vested in the King and he ruled with an absolute right. There were elements of this in the English government which the Americans resisted. The Americans have a legislative branch (congress), the executive branch (president) and the judicial branch (supreme court) because they wanted a separation of powers based on the Montesque’s theory. Legislative function: a policy making pronouncement that comes in the form of a statement or command. These prescriptive rules are designed to regulate individual conduct. These are rules of general rules. Judicial function: the application of those general rules to specific circumstances and then a declaration of what the law requires in that circumstance. It is an authorative ruling. This is typically reserved for the courts of law and a wide range of administrative bodies. Executive function: they have a limited function to execute the ruling of the court’s. They will enforce judgments, sentences, arrest, and imprisonment. This is most restricted function under the check and balance scheme. This leads, in theory, to a more balanced government that resists transforming into a tyrannical government. The problem with this function is that it can lead to massive delays, inertia, and gridlock. REALITY OF “CHECKS AND BALANCES” SYSTEMExecutive function: they are arguably the most powerful as they exercise powers that touch all these areas. They make declarative orders based on questions of law, fact, and mixed. They passed legislative orders through orders-in-council.Courts: they do not have a tiny role of taking the law and applying. They have great power under their interpretation to determine what the law is, should be, and how to apply it. The courts have been persuaded by the common law and therefore look for the least intrusion on individual liberty and property. The courts have significant interpretive powers and much greater discretion than would be apparent under the theoretical definitions. Legislature: they are now held account of the Charter and so its former broad ability to pass laws as long as it was within their division, has been severely curtailed. The legislature rarely passes laws that are direct and clear. Modern legislature is plagued with ambiguity, uncertainty, and a boggling lack of clarity. Ministerial Responsibility: you take responsibility for your department’s actions, and if you are the head of that department you would take the fall. Law says that this never happened and that it has become laughable. Law feels like ignorance is now a true defence to malfeasance because the ministers will just say that they didn’t know and that they were not involved. It is used as a codeword for a very important principle. Some actions are not appropriate for review by a judicial body. Courts will say that this is a matter for parliament or the legislature. They are sending their powers to a policital control through elected members rather than the court.RULE OF LAWAlberta van Dicey wrote a book on the role of the constitution and talked about the rule of law:Supremacy of Ordinary or Regular lawLaw is supreme over arbitrary or discretionary power. We express it as a notion that laws govern us and NOT political actors. Everyone is Subject to the Ordinary Law of the Land and the Jurisdiction of the Ordinary CourtsThe role of the courts is the interpretation and application of the legislature and in this they are bound to follow the ordinary law of the land. Dicey was referring to the common law. He was resisting the European trend of a special section of the courts to deal with the state. Law feels that this actually makes sense because government does a whole host of activities that private actors would never be involved in! He feels there should be a special law that recognizes government liability. We have a system however that takes negligence (a private actor theory) and imposes it upon government actors. Law feels this is just simply wrong. Elements of the Rule of the Law: Rule of law means that the law has certain fundamental conceptions of individual rights and liberties and they are embedded. The right to individual liberty and autonomy, the right to equality, the right to fair treatment of all citizens, interference with an individual should be held to a minimum, that legislation should be as minimal as possible. This is the inner morality or political morality of the Rule of Law. CONTROLS OVER GOVERNMENTPolitical: Parliamentary discipline and control is pretty much gone according to Law. Individual MPs do not stand up and challenge the government anymore. Legal Controls: this was brought about to stop government from affecting individual liberty and property. Judicial controls have come from the Charter, Bill of Rights, and always from the Common Law. The power was always limited by CL principles of how things should work. Jurisdiction: The authority to act and the authority to decide. It is the power that is within a certain defined limit. The court makes sure that the powers are exercised within the limits of the statute and the area that it can be used in. This is another exercise of their interpretation powers. Law feels that interpreting legislation is one of the most important powers of lawyers and courts. Intra Vires: you exercised the powers within your jurisdiction and your actions were proper.Ultra Vires: you exercised the powers outside your jurisdiction and therefore not legally. These are limitation powers, not plenary powers, and therefore always have to abide by jurisdiction. Law says that courts have a role to facilitate administrative action and the will of the legislature/parliament. The court must respect the creation of administrative bodies even though they are taking away some of the powers that would have formerly belonged to the court. The administrators are experts in their fields, they may be able to decide the matter better than the courts or at the same level, and the courts have to respect the government’s decision to put the power in their hands. In judicial review, the courts have to give the administration some room to maneuver, free from judicial interference, because they must show deference to the government. Courts have to allow reasonable decisions from the tribunals due to this. HISTORY OF THE JUDICIAL REVIEWOut of the operation of a limited number of remedies, prerogative writs, and private lawsMany people denied that administrative law existed, it was seen as a subset of the British constitution and didn’t develop in a comprehensive fashion until the 1960sCertiorari: a writ that demands information from the royal court to a subordinate body to determine the lawful conduct of a party. They used this to exercise control over the justices of the peace. They are like inferior courts, have limited jurisdiction and powerThey would look for defects in the indictments and were very strict in technical rulesThey would look at the record for errors of law and, if found, quash the proceedingsJustice of the Peace had administrative responsibilities – they were responsible for roads, public services, etc. A form of local government; there was no distinction of the workThe Royal Court’s said that they exercised authority over the JPs and that the JPs work was always judicial (even though some was administrative) so it is intra vires In the 18th century, there was a dichotomy that arose between judicial vs administrativeIn the 19th century, the characterization was based on the nature of the power (broader public interest more of an admin function) and nature of the processThe case law was chaotic and you could find precedents for basically any decisionIn the 19th to the 20th century, JPs sent some functions to Admin bodies, and the courts would say that they still have authority based on it being judicial or quasi-judicialIn the late 1980s, there was a proliferation of interference with admin decisions that ruled that they had exercised their discretion unreasonablyHIERARCHY CONSTITUTIONCHARTERThe duty of the courts is to make sure the Parliament’s will is subordinate to the Charter. This makes the courts almost a co-existing branch of law-making. PARLIAMENT / LEGISLATUREConsider the Division of Powers; Both are supreme in their area that was granted by the BNA act and defined in sections 91 and 92. DELEGATIONHodge v The Queen (1883 – PC)The provinces wanted to delegate authority to bodies of their own creation, a license commissioner for liquor. A bar owner challenged the authority. There are two arguments from Hodge:The Parliament was a delegate of power and cannot assign powers without the express permission from the grantor (the Queen)If it was within their power, could they delegate these powers broadly or was there some kind of restriction?ANALYSIS: Canada was a sovereign nation so they were allowed to delegate powers to a body of their own creation so long as it was within their jurisdiction and competence. It can enact regulations to facilitate the administration of the Act and has a broad discretion on how much power it can delegate. The court says that the delegation cannot move so far as to become abdication of power. However, as long as you retain control over the body itself and you can change the legislation that created the body, you can give as much power to it as you want. Law believes that this is a red herring argument in that you would not ever be able to abdicate power. RATIO: A sovereign legislature or parliament can never abdicate their powers as they still retain the power to vary the statutory body by passing different Acts. *There are provincial case law that shows that there can be a complete abdication of power. The first one of these is known as the Initiative and Referendum Act (1919). Provincial legislation gave the electorate the power to repeal or enact legislation without taking it to the legislature. The Lieutant Governor would be forced to sign the bills. The court said that it was unreasonably to for the LG to do that and it was an abdication of the power of the legislature. Under the Hodge test, this would not be the case!The second one comes from Alberta and is called Credit Foncier v Ross: FACTS: This occurred during the depression. This is legislation passed by a legislature that was seeking to remedy Albertan’s debts by treating previous interest payments as payments toward principal. The LG in council was given the power to exempt certain debts from the scheme. ISSUE: Is this an abdication in power by giving the LG in council the ability to fundamentally alter the legislation? ANALYSIS: It was seen to be an abdication because, even though Hodge appears to run contrary, they say that it was talking about an ancillary abdication while this one gives the LG in council the power to change something central to the legislation. This put them on par with the legislature. RATIO: A change that is central to the legislation that doesn’t have to go through Parliament, even though they retain control over the legislation, is an abdication of power. The next case is a Federal case called Re Grey (1918 – SCR):FACTS: A man didn’t want to go to war and relied on legislation that provided for exemptions from conscription for agricultural purposes. The Governor in Council used the War Measures Act to overrule the exemptions in the conscription statute. The WMA allowed for a sovereign executive to make all the decisions as opposed to a sovereign legislature during times of national security. ISSUE: Is this an abdication of power because of the War Measures Act?ANALYSIS: The Hodge test would say that it is not a complete abdication because Parliament retains the power to amend and change the legislation. This the test that the SCR applies and finds that it is a broad delegation but not a complete abdication of power. RATIO: The definitive test for Federal cases is the Hodge test which is: Does Parliament have the power to retract, amend, or nullify the power that they have delegated. Law feels like this is likely the best test for the Provincial sphere as well. INTER-DELEGATION – Section 96 ProblemParliament cannot delegate its authority to the legislature of a province and vice versa. This would be a way of amending the constitution in a way that is against the spirit of the constitution. Power can, however, be delegated to the administrative bodies from both levels of government. Section 96: this appears to deal only with the appointment of judges by the Federal branch and the regulation of the court’s administration by the Provincial branch. We are talking about judicial authority here. When you create an administrative body as a province and you appoint the members and give them adjudicative powers, have you offended Section 96? The province’s liked to appoint members for political patronage reasons. FIRST NOTIONAre these judicial powers? If they are, then this offends Section 96. The problem is that you cannot pass schemes that have any adjudicative or decision making capabilities. This really stops the abilities of provinces to create administrative schemes to deal with problems on a local level. Residential Tenancy Act - Ontario (1981 - SCR)Justice Dixon comes forward with a principled approach to decide when Section 96 applies. There were administrative bodies created to help ease the burden of the courts that was being imposed by these small issues. The court characterized the issue as looking at whether the powers of compliance with a statute or eviction of a tenant were judicial powers. Historically, the superior courts had control over these powers and exercised this. The court develops a 3 part test to determine if the power was judicial: (Page 23 – RH side)Historical: Does the power conform or is it similar to a power that superior, district, or county courts exercised at Confederation? If it conforms, you got to the second stage.Institutional Setting: Here you look at the nature of the question and consider is it still a judicial function? Is this about two private parties seeking opposing rights (judicial)? Or is this about policy and competing views of what is good for the community?Centrality to Body: If there is a larger, institutional setting and the power is ancillary or incidental to the larger admin context, it may not be a judicial function. Law says something about micro and macro powers. If yes, then... JUDICIAL POWERResidential Tenancy Act – Nova Scotia (1996 - SCR)They refine the 3 part test. Section 96 is designed to preserve the Core jurisdiction of superior courts. There is a narrow jurisdiction that is protected. The attitude of the courts is supposed to facilitate the provincial legislation and NOT strike it down. The court must allow the province to deal with the wide variety of issues that are unique to their land. Is the legislation an attempt to respond to a new societal interest and approach to the subject matter of the legislation?Is it based on principles of law that make it distinct from similar legislation?Is there a social policy that is different from the policy goals of similar legislation?The court says that the legislation deals with something new and up coming in society so it is novel and therefore does not fall under the historical system. The court goes on to say that this is not a core power of the superior courts as it would have been given to the Justices of the Peace. WHEN DOES THE CHARTER APPLY?SECTION 32: This says that the Charter applies to all government action. Law warns that it is not as clear as it first appears to be. The problem is that government is expansive in Canada. The jurisdiction of government has expanded into novel areas, with different fact-finders, and different expertise. DOLPHIN DELIVERY (1986 – SCR):FACTS: There was picketing of the premises even though they weren’t directly involved in the strike. The strikers called it freedom of speech while the business said that it was trespass. The strikers wanted to challenge the court’s decision. Superior court issued an injunction on the secondary site picketing. This was between a corporation and a union. ISSUE: Does the Charter apply to the decision that is not based on government actors?DECISION: The court said that the Charter would apply to the executive and administrative branches of government. It has to be a government action by a government actor that is carried out with the authority of a statute. It also applies to the council and cabinet. It does not apply to the judicial branch of government. The Charter does not apply to private action that is divorced from government action. The SCR says that the decision was based on common law and not statute so there was no government action. This is to avoid the Charter implicitly affecting all private relationships. BLENCOE v BRITISH COLUMBIA (HUMAN RIGHTS COMMISSION) – (2000 – SCR):A minister is accused of sexually harassing his assistant. The minister became depressed and was unemployable while waiting more than 2 years for the hearing. He alleged unreasonable delay. ISSUE: Does the Charter apply to the BC Human Rights Commission?ANALYSIS: The fact that a body is independent of government and/or that no statutory provision is impugned DOES NOT mean that the Charter does not apply. Bodies exercising statutory authority are bound by the Charter. The Parliament and Legislature are cannot breach the Charter and these limitations apply to the statutory authority and their regulations, bylaws, policies, and actions. The body must act within its statutory limitations. RATIO: When an independent body is implementing a specific government program or policy and exercising powers of compulsion, they will fall under Charter review. To hold otherwise would allow circumvention of the Charter by creating immune statutory bodies. Admin Notes________________________________________________________ Jan 17, 2013Background MaterialChartersince 1982(85) the Charter has come to dominate public lawone of the fundamental questions is the application of the Charter2 thought groupssee the Charter as constraining - constrains the government to protect freedom and liberty of the individualex. they would be very angry at Obama for enforcing gun control - taking rights away from the individualyes the Bills of Rights restrict the government, but the government has been a positive force in Canadian society - different kind of relationship between government and citizens than is seen in other societiesScope of Charter is governed by s. 32 Charter32 Charter“(1)This Charter applies:the 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; andto the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” What do we mean by government?there are different views on what constitutes government and the different forms that government can takeDolphin Deliverycourt issued injunctive order in labour dispute between 2 private partiesthe order might have violated right of assembly/free speechcourt held that charter applied to leg/exec/admin branches of government parliament/legislaturedelegates of the above, with power to carry out legislative schemesthe Charter wouldn’t apply to any action completely divorced of any connection to government Charter not there to provide code to living in an organized societynot designed to govern all relations between all people or businesses(but the limit varies depending on case law)In subsequent cases the courts look at the Charter’s application in broader areas don’t know if they’ve given us more clarityLooking at bodies that aren’t really governmental, but are connected somehowex. following statues, publicly funded...For example - university in Canada, university are publicly fundedbut universities do claim a fair amount of autonomy in the way they conduct their businessdon’t see themselves as civil servants Early cases tend to involve universities and hospitals.ex. mandatory retirement in universities and a hospitalif the Charter applied, the policies of mandatory retirements would be in trouble - ageism so the courts found that they weren’t government under s. 32universities were communities of scholars **Note that Law doesn’t actually believe that universities aren’t government, provided he just came from a meeting with the government on university improvements…**there is usually some element of coercion/compulsion in a government body Factors (university cases) - La Foretwas the body created by legislation? - not determinativeyes, the university is created by statute good thing this isn’t determinative, all corporations are created by statute is the entity subject to common law/judicial review - not determinativethe university is subject to such review does the entity perform an important public purpose - not determinativedoes it receive government financial support - n-dit is subject to government regulation - n-d Concluded that in both the university and hospital that they exercised significant autonomy, at least in employee matters, so they didn’t qualify as government in these cases. The degree of government control in a particular function, the more likely that the function will be seen as governmental action. There was a dissentdifferent test, developed in deciding whether a particular statutory body was “the crown” significant control by the crown or government ministry (or accountability to them)universities are largely funded by the government, boards of governors are largely appointed by government,found universities (and hospitals) to be governmentlook to the function - are the main functions traditionally down by government, or analogous to functions traditionally done by governmentwas it acting pursuant to government statutory authority - is yes, the charter could apply this view is starting to gain more tractions, as previous judgements are increasingly seen as too narrow - wants broader application of the CharterExamplesthe blood service agency (after the Red Cross debacle) who are they - non-for-profit funded by provincial government, but apart from government because it was felt that the last time the government controlled the agency it was screwed up the rule - they wouldn’t take donations from men who had sex with other men - argued that this was discriminatory court found that the agency wasn’t government, the Charter didn’t apply, policy couldn’t be challengedcharacterized the agency as a drug manufacturer and not a government agency this is an unusual decision considering what the agency does - function is traditionally government, funded by government…universities - Pridgen (Calgary)2 men made their prof the subject of Facebook postings - went beyond mere criticismuniversity made it the subject of a non-academic offence procedure, found guilty, put on probation felt that freedom of expression was violated, wanted the Charter to apply university argued that they weren’t government, they could set up their own systemCourt found - the university wasn’t government, but they do provide an important public service and therefore in the provision of that service they are government in relation to that public service so the Charter would apply in that area Highlights from Pridgencourts found that the Charter can apply to private entities in 2 waysis the entity government entity due to funding and controlare they undertaking actions/activities which are government - implementation of statutory scheme or government program - look at the nature of the act there was a concern that government would get around the Charter by contracting out to private enterprises courts found that the university was acting in the furtherance of government policies about education - university’s policies couldn’t offend the charter CoA - upheld, but only 1 of the 3 dealt with the Charter application issue (the others concurred)Situations in which the Charter might applylegislative enactments government actors by natureex. municipalitiesdoes this mean that all actions are responsible to the powers? - they make a lot of decisions and deals - Shell case extensive government control, little autonomyBodies acting statutory authoritymust follow Charter Blencoeallegations made against BC MLA, ultimately went to human rights commissionhe was excluded from the party and cabinetnearly three years after complains, case still hadn’t gone before the Human Rights commissionhe is arguing s. 7 violation because of the delayis the BC Human Rights Commission government for in Charter?Government - it was created by government, exercising government powers, empowered by government…Not Government - they are acting judicially, courts aren’t considered government, they were set up independent of government as an adjudicative body court held that the Charter did applythese was compulsion in how the investigation took, exercising statutory authority Elridge - non-government body enacting government policy... Keep the Charter in mind when challenging official powerLegislative and Executive Control of the Admin ProcessLegislative Controlhow does legislature provide for the control over its delegateprovide for the schemedelegate authorities to others to carry of the scheme legislative - to make subordinate legislationexec - carry out legislative rules if we believe in the system of checks and balances, and that parliament is sovereign, then we want parliament’s will to be carried out, and parliament should control the delegates to make sure its will get carried outnote that today the legislation passed by the legislature is fairly skeletalmuch of the detail is delegated to other people/bodies where it is filled out by schemes or regulations Glass Seagull Act37 pages - 1993 - dealing with regulation of banks, dealing with a possible financial collapse Dod Frank Law -2010 - 848 pages - only skeletal, could have amounted to 30,000 pages and they wonder why their schemes of regulations fail?So parliament doesn’t legislate fully, because they aren’t the experts. We want greater flexiblity to adjust and tune legislature to changing times and problems. LEgislating itself is also time-comsuming.So we have subordinate regulations - how to we control thesethere is little public contact, and no transparency, must people don’t know about themSubordinate legislation- who creates it - boards, commissions, prof bodies, regional authorities, governor in councillook to see if they have been given the authority to enact regulations to further the political schemeprepared in house, come in front of the cabinet, but rarely come before the legislature require these laws to be filed and published - gazettes in some cases, if this isn’t done properly, the regulation may not be effective (but not always) Grounds to challenge subordinate legislation legislation is outside the delegated authorityparent legislation is repealed (all regulations fall)conditions precedent weren’t complied with the delegate that purported to exercise the power to regulate is not properly constituted regulations conflict with primary legislation, or parent legislation the regulations themselves contravene the Charter In some jurisdictions you can try to put these regulations back in front of the legislature - want an affirmation or a disallowance - Watchdog Committees - sit and examine the regulations Internal review by parliamentary council/drafting by people with experience in legislative drafting Consultation with affected parties - typically informal filing annual reports - MPs can ask question about the administration of that particular agencyOmbudsman**read the Ombudsman Act the concept - a citizen’s advocate on issues of maladministrationwhere citizen’s complaining of government admin can get helppoor practice, abusive behaviour, errors - try to bring these matters forwarddoesn’t cost anythingofficer of the legislature - reports to and hired by the legislature5 year term, with tenurehas their own staffall matters kept privatejurisdiction - any matter of administration government department, agencies of provincial governmentdefined in the Financial Administration Actexception - officers/employees of the legislative assemblyAuditor GeneralChief Electoral Officerboards of universitiesregional health authoritiesmunicipalities What do we mean by matter of administrationBC Development Corporationread the term as broadly as possibleBC Dev. - dealing with a lease entered into by the BC development Corporation and a private developer - ombudsman has jurisdictionAfter the investigationideally, the ombudsman wants to be able to call the head of the agency and say there was a problem and it needs to be fixedif the head says yes, we’ll fix it, everything works outif the head says no, nothing happened - the ombudsman effective authority ends because he can’t compel a changebut through an annual report he can point that the agency hadn’t responded or addressed the report and put it out into the public - civil servants generally don’t like seeing themselves in the press - publicity sanction PART TWO: Legislative and Executive Control of the Administration ProcessOmbudsman: this means citizen’s defender. They were meant to take feedback from people that have gone through the government’s impartial assessment system and have complaints or comments about it. They can investigate cases that pique their interest and expose bureaucratic maladministration or solidify faith in the public authority with a positive report. The Ombudsman is a creature of statue designed to be a legislative officer that helps exerts it’s control over delegates. The Ombudsman can:Start a complaint on his own or on the direct of a member of the publicTheir jurisdiction is “all matters of administration”; so it is very broadThey have no real power but can publicize their results to “scare” the governmentPart 3 - Judicial Control of the Admin Processsubstantive mattersprocedural matters Judicial Control assert control over admin activity to ensure the administration acts according to lawdealing with a desire to enforce the rule of lawinherent supervisory judiciary jurisdiction of the superior court over inferior bodies to ensure they act according to law - one of the core jurisdictions of superior courts different than an appeal - doesn’t exist unless provided for in statutethe nature of appeal will be defined by the statute - ex. qualified, unqualified, on the merits, questions of law and jurisdiction…when you have an appeal on matters of law and jurisdiction it is difficult to distinguish it from review but they are different - inherent v statute **Law says: don’t say appeal when you mean review and vice versa - even if it is the same effective process SUBSTANTIVE REVIEWJudicial Review: an inherent power exercised by superior courts over administrative tribunals. This power lies at the core of their jurisdiction; it is an inherent supervisory power. Appeals: they are creatures of statute and there is no such thing as a right of appeal. Appeals only exist from statute and are therefore defined by the language which creates them. Problems arise when the legislature does not properly define the function (de novo, on merits, error/question of law, etc). The courts have taken a fairly restrictive definition of appeal: Does the authority have the jurisdiction to make this decision? There is also error of law appeals – this would arise when someone/the tribunal misinterprets the legislation.When you appeal to a court of appeal, you are not given an appeal de novo, but one where you would argue that there has been an error of lawWe don’t want the courts to review the administrative bodies; why is that? This would be overriding parliamentary sovereignty because they passed the statute that created the board. Courts, it is said, should not second guess the tribunal or parliament. The counterpoint is that we should let the laws apply and courts are experts in interpreting and applying the law. We don’t like the idea that tribunals can exercise their authority in a manner that is inconsistent to the law. Tribunals say that they can make decisions just as well, if not better, than the courts. JUDICIAL REVIEWThis is based on the concept of the rule of law. This is meant to represent the supremacy of law; all government action is authorized, limited, and constrained by law. Government cannot act except in the extent and manner that is permitted by law. Law includes the common law, statutory law, and the Constitution. The courts role is to enforce the rule of law. The rule of law (in England) is said to also embody some standards and principles. The weakness of this concept is who makes the standards and whose values. Do common values exist in all societies that operate under the rule of law? Some scholars have said that there is. Law must further personal liberty and protect and further personal property. This involves things like prospective laws, participation, transparency, etc. Jurisdiction: The power or authority to act or to decide. Judicial review is premised on the power of the courts to make sure that statutory delegate stays within its power or authority. The antithesis of this is that no delegate possesses unlimited power or authority. When a public authority exceeds its jurisdiction, it is said to act ultra vires. Once a decision is ultra vires, it is declared null and void and has no weight whatsoever. If you act outside your authority, you are also said to have defied the will/sovereignty of parliament or the legislature. This is how the courts justify their judicial review of the administrative bodies. If the legislature does not like the court’s decision, they can repeal, amend, or pass a law that changes this. Through these interactions, we can say that there is a running dialogue between the two entities. Correctness: It is the court’s decision that counts. If the courts interpret it one way, that is the only way that the case or issue can be decided. Reasonableness: There is more deference and the decision of the issue can take place on a continuum of reasonableness. If it is justifiable and transparent, it will likely be reasonable. You cannot make a decision that is in bad faith or arbitrarily. Areas of Jurisdictional Review Limit of the Statutory Delegate’s Power or AuthorityDo the tribunal members have the proper qualifications as set out by the statute?Have the members been appointed in accordance with the statute?Have the necessary conditions been complied with? (written complaint, time frame)Does the tribunal have authority over the subject matter in dispute?Can the tribunal issue the order or remedy sought?Legal and Factual Issues with the Exercise of PowerApplying the wording of the statute to the facts. The labour board can deal with unions, employees, and employers so the parties must fall under the statutory definitions. There has been a distinction drawn between:Facts and Law Jurisdictional in NatureThose that within the Delegate’s authority or jurisdictionErrors of LawThis can be a failure to abide by procedural norms (proper service)Or a substantive error such as a judgment made in bad faithAnisminic Ltd v The Foreign Compensation Commission (1969 – HL): This case outlines all of the above and it says that courts should not review decisions by tribunals that have been delegated authority through parliamentary sovereignty. Courts review the granting legislation and supervise the delegates to ensure that they abide by it, don’t make errors of law, and have fulfilled procedural requirements such as natural justice. They should not review decisions that, whether right or wrong, were properly under the jurisdiction of the tribunal to make. IMPROPER CONSTITUTION OF THE TRIBUNALThe members of the tribunal have to follow the process of the statute in order to be members of the board or tribunal. The terms have to be right, the right people have to hear it, and they have to have been appointed properly. The more difficult question is the one of Quorum. This concerns the number of people that have to be present for a valid decision. RATIO: If there is no quorum set down, but a majority of the board is present, that is enough to have a valid decision. (pg 44-50)What if the tribunal sets its quorum at 2 and 2 people are present; is that enough? Yes, if they have the ability to set it and it has been set at the time of the hearing. IMPROPER SUB-DELEGATIONThis is when the delegate has an administrative or judicial power and delegates it to another. The answer to this question depends on the legislation. Re-delegation is, prima facie, not allowed. If they are expressly authorized to sub-delegate their powers, it will be valid. There is the maxim of construction that says that a delegate shall not delegate – delegates non potest delegare. The other exception is where the power is implied. You look to the entire statutory scheme and its context and then make the argument that the scheme would be almost impossible to carry out if there was not an implied power of sub-delegation. The scheme requires that ability as a necessity. This is mostly used by ministers of the Crown to create deputy ministers and such. The ministers are so “busy” that they have to have the implied power to sub-delegate. This has been recognized by the courts. It is a balance between the presumed desire of the Legislature to have that person use that power AGAINST the desire that the process of government will be effective and done. COOK v ALBERTA (Minister of Environmental Protection) (2001 – ABCA): Cook wanted to set up a campground but they needed the consent of a company (Sunpine) and Alberta. The minister had expressed support for the plan but they couldn’t get Sunpine’s consent. They appealed and a committee decided that it was a good use of land and that the minister should exercise his discretion and allow the campground. The minister cannot delegate his power to the committee however so the project failed. This recognizes the above principle and says that the minister in question could not delegate his power because the person was not in the chain of power. EX PARTI BRENT (1955 – OCA): There was a decision to deport a lady back to Buffalo. She had left her husband in Buffalo to meet Mr. Brent and marry him. The D asked for a ruling of unlawful custody and/or unlawful decision (certiorari). The argument was the special inquiry officer was not acting within his lawful authority because he didn’t possess the delegated powers to do this. ANALYSIS: The governor in council was granted the ability to create regulations for the Act. The governor in council passed a regulation (D) that said the special inquiry officer can deny admission on enumerated grounds. This was found to be impermissible sub-delegate. There was no express delegation and there was no implied power of sub-delegation. The conclusion of these cases is that Parliament wanted the power exercised by the bodies of which they have originally empowered for regulatory or legislative powers. For administrative powers, the delegator must retain some measure of power over the sub-delegate or that will also be outside of their jurisdiction to do. MANDATORY PROCEDURAL REQUIREMENTSThese must always be complied with or the tribunal will have exceeded their authority. There is such a thing as permissive procedural requirements which will not automatically stop the decision from being overruled. Typically, “shall” has been interpreted as condoning a mandatory procedural requirement and “may” has been mainly decided as a permissive procedural requirement. Renkell: This case found that the term “forthwith” did not mean that something had to be done immediately. There could be a slight delay. The court is able to interpret the words as they wish. Costello (1983 – SCR): This deals with expropriation. Courts have typically insisted on fairly exact compliance with legislation when dealing with expropriation because personal property is a very entrenched right and we want to get the interaction right. The city of Calgary wants to make a highway on the land owned by the sisters Costello and they were holding out for more money. The city passed legislation and expropriated the land. ISSUE: Did the sisters get the required notice for expropriation to happen?ANALYSIS: One got the notice correctly but the other one was given the notice a few days too late. This was found to be the case even though the sisters would have been in contact, knew of the proceedings, and what was at stake. The court said that you have to exactly comply with the notice requirement because it is a mandatory procedural requirement. DECISION: The by-law expropriating the land is null and void due to no mandatory notice. The court tends to read these very strictly and apply them that way too. Robertson v Edmonton: (Courts are reluctant to hold to mandatory procedural requirement)The court held that there was no prejudice to the applicant and therefore the particular rule was directory as opposed to mandatory. Alberta courts are more likely to weigh the effect of not following the rule when determining if a procedural rule is mandatory or not. Chapter 5 - ERROR OF FACT AND LAW REVIEWS1-2-3-2 = The evolution of standards of review in CanadaIntrajurisdictional Error of LawWe want to control the jurisdiction of a statutory decision. In North Umberland, Lord Denning came up with the notion that certoria will lie in respect of jurisdictional and intrajurisdictional errors of law (errors of law made when the tribunal actually did have jurisdiction). It has to:The tribunal has jurisdictionThere was an Error of LawThe mistake is on the face of the recordThis can be found on page 60. In Alberta, we have it defined in statute on page 397. Error of Fact: this involves primary material on which evidence must be provided. Once these are provided, it will be a question of law whether it fits under an Act. There is a line of thinking that an unsupported finding of fact is an error of law and therefore reviewable by the courts. Mostly, courts leave this alone because the tribunal is the primary evidence hearer. Error of Law: the determination that something fulfills a legal requirement or definition.When courts determine whether they should interfere with a tribunal decision, they are balancing parliamentary supremacy (leave them be) and the rule of law (everyone must follow it). Collateral Questions: the other issues that have to be decided that aren’t central. This is based on the decision makers idea of the merits of the case and is in the realm of the tribunal. The tribunal must not make any errors on these. Preliminary Questions: all of the things that have to be decided before the main decision can be arrived at. These are for the courts to control and make the final decision. The tribunal must get them correct or they will have their decision overturned. Jurisdictional Facts Theory: The most important and defining issue that is central to the outcome of the case. Certain facts must be decided before the tribunal has jurisdiction. This is similar to the collateral/preliminary questions theory. What separates a jurisdictional question from an intrajurisdictional question?If the question is intrajurisdictional, there can only be a review for errors of law on the face of the record. This ground is anomalous as the court will intervene to correct an error law even though the tribunal acted within its jurisdiction. This is done through certiorari. Error on the “Face of the Record”: This is the record of the proceedings before the tribunal and the scope of “on the face” can be determined through statutory or common law. Often, the granting legislation will define it but if not there is North Umberland and Lord mon Law “On the Face”: contains the document which initiates proceedings, the pleadings, and the adjudication. It does not include the evidence or reasons unless the tribunal included them. Privative Clauses: It is a signal by the legislature that they don’t want that decision or order reviewed. This makes it clear that the tribunal has exclusive jurisdiction over the question. This is used to exclude judicial review and end proceedings before they go to the courts. It is part of the notion that administrative proceedings are accessible, efficient, and a good alternative. Final and Binding Clause: This is the weakest and oldest of the private clauses. The courts have looked at it and interpreted it to say no appeal. There can only be an appeal if the statute allows for one and if it doesn’t, this makes it a useless clause. You can upset the clause by showing there is a jurisdictional error of law or fact.Exclusive Jurisdiction Clause: This is an attempt to say that all of the jurisdictional questions are within the tribunal’s jurisdiction. This brings all decisions within the jurisdiction of the tribunal and when combined with the no certiorari clause means that no decision can be reviewed. Today, the courts see the clause as an important statement of legislative intent that the issue is to be decided by the delegate and the resulting decision is entitled to some measure of deference on review. No Certiorari Clause: It says no certiorari. This stops the one remedy for dealing with intrajurisdictional questions from being available – you cannot get certiorari for a mistake on the record. You would have to argue something like natural justice, abuse of power, or jurisdictional mistake in order to succeed. Time Limitation Clause: you can question or review it by way of certiorari or mandamus but it must be filed within 30 days of notice of the judgment. If you fail to act does it revert to a no certiorari clause or something else? Does it bar all judicial review after the time limitation has expired?Combination: You cannot stop all judicial control or you have a s.96 problem. The book also says that jurisdictional or preliminary questions of law and fact could still be reviewed. Crevier v AG of Quebec (1981 – SCR): You cannot stop complete appeal from tribunals because that would violate section 96 as they have the absolute jurisdiction over subject material they dealt with at the time of confederation. Any attempt to exclude judicial review on jurisdictional reviews completely will fail because it is a violation of section 96 and therefore unconstitutional. When you put that clause in, you have undermined a core jurisdiction of a section 96 court. STANDARDS OF REVIEWThe First: Unreasonable and CorrectnessCUPE v New Brunswick Liqour Corporation (1979 – SCR): The liquor workers went on strike and the liquor board used management to fill some of the employee positions and keep the store open. The union says that you cannot do that. The legislation said that they won’t fill the jobs with scab labour and in return the union would not picket. The legislation said you cannot replace the employee or fill their position with any other employee. There are two privative clauses: a final and binding clause and a no certiorari. It makes its way to the SCR. RATIO: Dickson J brings in the new standard of patently unreasonable. If a tribunal makes a decision that is not irrational, bizarre, or completely unsupported, it will be upheld. Was the interpretation rationally supported by the relevant legislation? Does it demand intervention?Blanchard v Control Data: A patently unreasonable finding of fact (no evidence of the fact) is equivalent to a patently unreasonable error of law. The “Functional and Pragmatic” ApproachBebault – “Functional and Pragmatic Approach”: This is dealing with a successor’s rights provision – if you sell your business, the employees contracts that are existing will be available. This is to stop employers avoiding CBAs that they do not like. This was to be decided by the labour commissioner but others argued that it should be open to review to make sure it was right.FACTORS:Privative ClauseWording and Purpose of the LegislationExpertise of the TribunalNature of the QuestionISSUE: Can the labour commissioner’s decision be judicially reviewed?ANALYSIS: The court concluded that this was a question that was not given to the conclusive or exclusive jurisdiction of the labour commissioner based on the above factors. The issues were civil law, common law, and legal concepts that could be dealt with by the courts without any appeal to an expertise or a specialized knowledge. The privative clause cannot restrict all judicial review and the question was of a legal nature. The LC was wrong so it can be reviewed. Reasonableness Simpliciter: The Third and Intermediate StandardCanada (Director of Investigation and Research, Competition Act) v Southam (1997 SCR)FACTS: This was an appeal from a highly specialized tribunal. Southam had bought up a lot of newspapers and it was alleged that they had shut down the advertising market for real estate. The tribunal found they had and told them to divest themselves of some of the newspapers.ISSUE: Is this a reviewable question? On what basis would we review it?ANALYSIS: You look at the nature of the problem (law, fact, mixed law and fact), the rights of appeal and privative clause (unfettered right to appeal and no privative clause), and expertise needed (a market expert). They determine that this is a question of mixed law and fact. The court said that there should be some deference to the tribunal for fact finding but none afforded for questions of law. DECISION: The court finds that the members of the board were very knowledgeable about the economic, regulatory, and financial expertise which would suggest deference and the standard of patent unreasonableness. Other factors showed correctness and that there should be no deference (legal question, right to judicial review). He introduces the new standard of reasonableness simpliciter. It was supposed to fall in the middle of the spectrum between both existing standards. He is referring to the obviousness of the defect. PU is something unreasonable on its face that you cannot leave unchanged. RS is where the decision seems reasonable on its face and there is no obvious defect that would beg for it to be overturned. Labour Relations Boards: they typically have strong privative clauses and are staffed with experts. They are normally given the patently unreasonable standard. Labour arbitrators are given less deference (more reasonableness) because they dealt with a wider range of outcomes. Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998 – SCR):FACTS: This is taking place in Federal court and is a challenge based on an immigration decision. Push was a refugee and claimed persecution in his home country of Sri Lanka. He gets caught selling heroin and is sentenced to 8 years. His status as a permanent resident was threatened so he brought back up the refugee status and it made its way to court. ISSUE: What can the federal court do in judicial review?ANALYSIS: The board decides that Push falls within an exception to the definition of refugee by reason of his criminal offence. The court agrees but decides that this raises a question of central or serious importance. The FCA agrees with the board and trial court. He was guilty of an act which is contrary to the principles of the United Nations. The SCC determines the standard of review by using the functional and pragmatic approach (privative clauses, expertise, nature of the act and problem). The SCR concludes that the standard would be correctness because in order to find that he was not entitled to claim refugee status the courts had to correctly apply the standard to exception; it was a question of law, expertise was low, and it was an important question. DECISION: Determinations of abstract principles with wide application is a factor militating against deference. The factors suggest a correctness standard. RATIO: If the decision of the case would affect future ones, have precedential value, this is a strong indicator that the standard of review should be correctness. THE REVISED STANDARDS OF REVIEWDUNSMUIR v NEW BRUNSWICK (2008 – SCR)FACTS: A person was appointed to a public office as clerk of the court. He was also employed by the judicial branch of the Attorney General. He was suspended for questionable work but was kept long term. Before one of his reviews later on, he was deemed not a fit and dismissed. He was paid in lieu of notice. Dunsmuir wants the decision reviewed and to be reinstated or paid a longer period of notice. ISSUE: Can the arbitrator review the reasons for dismissal?ANALYSIS: It goes to an arbitrator, who looks at the legislation, determines he has jurisdiction and says that Dunsmuir’s procedural rights were violated, the decision should be overturned, and he should be returned to office. The trial court uses the functional and pragmatic standard. It is a jurisdictional matter and therefore the standard of correctness applies. The COA says that it is a standard of reasonableness simplicter. The emphasis is put on a privative clause, the expertise of the arbitrator (he knows the statutes), which leads to more deference. It goes to the SCR.The SCR says that the courts must not unduly interfere with the discharge of statutory duties by a legislated created body. The function of judicial review is to ensure the reasonableness, legality, and fairness of administrative bodies. Privative clauses are an important signal for more deference but, as stated in Crevier, it cannot completely insulate the administrative body from judicial review. Correctness remains but reasonableness simpliciter and patent unreasonableness is formed into reasonableness. What is the difference between the two standards of Correctness and Reasonableness?The courts are to accept the notion that there are perfectly reasonable answers to the questions than that what the court would have decided. Reasonableness involves a range of decisions and remedies that are reasonable when it comes to dealing with administrative problems. The court should allow more deference in these cases. You have to look at the reasons and the outcomes. Reasonableness is concerned with support, justification, transparency, and intelligibility. This makes the reasons laid out by the tribunal extremely important. The process is important. The court must ask if the particular outcome falls within a range of reasonable outcomes? If so, it is considered reasonable and under a standard of reasonableness it should be left alone. DECISION: Three standards is not necessary. The standards are collapsed down to two: Correctness and Reasonableness. Jurisdictional questions are still reviewed on the standard of correctness. A question of fact, policy, or discretion means deference and therefore reasonableness. This includes its own statute’s interpretation and those close to it. Their expertise with common law rules in accordance with their home statutes indicates deference. Correctness will apply in respect of jurisdictional questions. Jurisdiction is used in the narrow sense. It applies when it is a general question of law which is of central importance to the legal system; a question of law that doesn’t relate to that statute or a common law rule related to it. It will apply to a jurisdictional dispute between two tribunals. They refer to this as “the standards of review analysis”. Law feels this is just like the functional and pragmatic approach. Nature of the question is now more important but still look at privative clauses and expertise. For Dunsmuir, they say that this is a question of reasonableness because the legislation laid in the administrator’s home territory and so even though it was a question of law it was within his ability to decide it. His reasons however did not hold up and his decision did not fall within a reasonable range of outcomes. The contract of employment says that an employee can be discharged with notice or pay in lieu. KHOSA v CANADA (MINISTER OF CITIZENSHIP + IMMIGRATION) (2009 –SCR)FACTS: Khosa was in a serious accident that stemmed from street racing. He denied it but was convicted and was now facing deportation. He asked that the board not impose it based on humanitarian and compassionate grounds. They refused to do that. ISSUE: Can this decision be reviewed by the court? What is the standard?ANALYSIS: The compassionate and humanitarian grounds is granted based on discretion. It is based on the serious of the offence, ability to rehab, time in Canada, and effects on family. If you have a mistake on these factors (which are apparently the legal test according to Law) by not using them it may be considered an unreasonable decision. Courts will look to precedent to help decide the standard of review. If there is not a clear precedent, you go to the standard of review analysis (expertise, privative clauses, nature of the question, question of law). The court says looking at this it is a discretionary decision based on the facts and circumstances on the case, the tribunal saw Khosa and his reactions, and they have experience making these calls. They look to the reasoning to see if it is justified, transparent, and intelligible. If the decision falls within a reasonable range of outcomes, it will meet the standard of reasonableness. The board felt that Khosa did not appreciate the severity of his actions and was not remorseful. Their decision was found to be reasonable and was upheld. GTFORATIO: A reasonable decision should be based on transparent and intelligible factors/reasons.Chapter 6: ABUSE OF DISCRETIONDiscretion: this means judgment. It means selecting between a number of options. There is no uniquely right answer meaning that you do not have to always arrive at a same decision. In law, this discretion is limited by precedent and past decisions. It must be exercised properly and in accordance with its governing legislation. If a body fails to do this, it will have been used for an improper purpose and opens itself up to judicial review and overturn. Fettered Discretion: discretion that is limited by certain notions. These include being exercised by the proper body, being of the nature of the measure of control/structure for delegation, and should not fettered. Fettered discretion is a decision that is made under constrained conditions. This could create an inflexible rule that must be made time and time again. Bad Faith: This means knowing that you didn’t have the authority to do what you did but that you did it anyways. This was developed in Roncarelli v Duplessis. There is a notion that discretion cannot be exercised unreasonably. These are the common law limitations on the use of discretion. The courts say that they are upholding parliamentary supremacy by properly interpreting the legislation. In Roncarelli, they brought up the idea that discretion is not unfettered and that it must be exercised within a prescribed area created by law. Who Exercises Discretion?Unauthorized Sub-DelegationDelegation will be exercised formally (person named in statue) and;Practically by lower level officialsThis can be expressly – stated in statute - or implicitly determinedThe courts are reluctant to imply when it is in a completely unstructured fashionRule Against DictationThis is when the formal person decides but was told to by someone elseIrrelevant Considerations: the views that influenced the decision were not validRule Against Fettering of DiscretionAn inflexible rule has determined how the discretion is exercisedHow Discretion is ExercisedProper PurposeYou cannot use your authority for a purpose not contemplated by the statuteRelevant ConsiderationsNot taking into account all considerations or considering irrelevant onesUnreasonablenessAssociated Provincial Picture House v Wednesbury Corporation (1948)FACTS: Unreasonableness (the old definition) was that it was an answer that no right thinking court would arrive at based on the facts. The important part is the notion that the administrative board should be able to exercise their discretion without the threat of judicial review. Here, the picture house had made restrictions that people 15 and under could not watch certain materials. It would require overwhelming evidence to show that the decision was so unreasonable that no right thinking authority could have come to it so that the courts could review. ROBERTS v HOPWOOD (1925 - UK)FACTS: There was a decision by a local authority to give its employees a minimum wage (4 pounds a week) that would be paid to both men and women. The auditor says that the minimum wage was too high and that you could get people to work for less. He also found the pay equity to be an unfounded notion.ISSUE: What is the purpose of the rule? Is this a proper exercise of discretion?ANALYSIS: The English HOL agrees with the district auditor and deems this to be a mismanagement of funds. They term it to be a socialistic and feminist agenda to have that pay equally for both genders. SHELL PRODUCTS v VANCOUVER: Improper PurposeFACTS: The city of Vancouver wanted to make a political stand against apartheid and refused to do business with Shell on that basis. They would not buy products from the Canadian subsidiary of Shell. ISSUE: Is this an improper purpose?ANALYSIS: Was this a municipal purpose – for the health, welfare, or safety of that community with emphasis on that community – which is a territorial limit. The court says that this is overreaching the territorial limit and is therefore an improper exercise of discretion. It was not about the health, safety, and welfare of Vancouver and instead about a political stand. DISSENT: McLaughlin says that municipalities are a body set up by the legislature. We should give them deference when they are making decisions about their local representation. She would say that it is a policy based discretion representing a community view that should not be changedSMITH & RHULAND v THE QUEEN (1953 – SCR): Irrelevant ConsiderationsFACTS: There is an application for a group of employees and the application was turned down because one of the union heads was an alleged communist. ISSUE: Was the discretion exercised for an improper purpose?ANALYSIS: This is classified as an irrelevant consideration. The issue at play here is whether the documentation was filled out properly by the potential union. Communism has never been illegal in Canada. This irrelevant consideration means that the discretion was exercised improperly. WIMPEY WESTERN v DIRECTOR (Standards and Approvals Dept of Environment)FACTS: There is an application to set up a water facility and its passage is important to the development of a business park. The government said that they won’t set up the water facility because they were concerned about the environment, farm land, etc. The government says that they want to wait to figure out where to put a larger water facility that could service many areas and have the least impact. Wimpey wants to truck their waste and get things done right now. ISSUE: Was this an irrelevant consideration in the exercise of the discretion?ANALYSIS: It was denied due to ministerial policy and not because the minister wanted to wait for a report on the feasibility of a central water treatment plant. The court determines that the policy would have reasonably been considered (wasn’t an irrelevant consideration) and would be one of a number of factors. The minister says that his discretion is not fettered and that he had approved programs in the face of the policy. This was enough evidence to show that he had exercised his discretion properly. RONCARELLI v DUPLESSIS: Bad FaithFACTS: Duplessis was the head of the populist government in Quebec. The church basically told rural French Canadians how to vote, act, and behave themselves. Duplessis thought that the Jehovas witness movement was undermining and harming the church in Quebec. Roncarelli has been bailing out Jehovas witnesses because he feels that the government has been acting overly harsh to them for handing out permits. Roncarelli had a liquor permit. Duplessis goes to Archibauld and tells him to cancel his liquor license. ISSUE: Was this an improper exercise of discretion? What about the rule of law?ANALYSIS: Roncarelli was suing for damages and had to show that the decision was ultra vires and caused the damage. But what was the tort? Law says that there was none. Law says that this case is famous for almost establishing a tort for abuse of statutory discretion. It would be uniquely a government only tort. The court says that it was a malicious exercise of statutory authority, with the intent to harm, and was in bad faith; bad faith can be defined as acting for a purpose without the authority when you know you didn’t have it. UNREASONABLENESSWednesbury: This talked about the general ground of unreasonableness. If you exercise your discretion for an improper purpose, you could be said to have been acting unreasonably. The court also suggested that there was an independent ground of reasonableness: the decision was so bizarre and irrational that no right thinking tribunal could have come to that decision. This mirrors the standard of patently unreasonable for tribunals. BAKER v MINISTER OF IMMIGRATION (1999 - SCR)FACTS: There were a number of grounds challenging the Minister of Immigration’s decision to not allow Baker to stay in Canada. They alleged that she was not given a fair hearing, the statute wasn’t exercised properly, etc. There were both procedure and substantive issues. Baker came for a “visit” to Canada and stayed for a long time. She had no particular skills. She had 4 children that were Canadian citizens since they were born here. The minister had the power to exempt her from certain immigration rules on humanitarian and compassionate grounds. ISSUE: Was this an improper exercise of discretion to not avoid the rules based on humanitarian and compassionate grounds? ANALYSIS: She meets with an administrative officer, gets an interview, and he sends it to his superior. The superior says that she doesn’t qualify for humanitarian and compassionate grounds. He says that she would be a strain on the welfare system. His notes made him seem a little biased and frustrated at the situation but none of that was fatal to his exercise of discretion. There are factors indicating deference such as this being an exception to a normal statutory scheme. The fact that the decision is to be made by the minister (well his delegate) and they entitled to more deference. The determination is largely factual. Factors that showed that there should be no deference was the absence of a privative clause and individual (vs polycentric) dispute. Law thinks this is actually a polycentric dispute because the delegates would need some guidelines from the minister to make their decision. DECISION: The court decides that the correct standard of review is reasonableness simplicter. Is this a reasonable solution? It looks like it is because he paid attention to the case and included reasons but the court decides that they didn’t put enough weight on the children (bullshit) and decide that it was an unreasonable decision. She is allowed to stay. RATIO: The effect on the family is the primary importance for humanitarian and compassionate grounds. CUPE v ONTARIO (Minister of Labor – Jim Flaherty) (2003 – SCR)FACTS: There is an arrangement at issue that appoints arbitrators in a scheme of compulsory arbitration that was meant to prevent crippling public sector strikes. The government is trying to pick arbitrators from retired judges. The union said that they were going to get screwed by the conservative judges and the government said that they just wanted impartial deciders. ISSUE: Was the appointing of retired judges an improper use of discretion?ANALYSIS: The court agrees that the minister was trying to stack (!) the arbitrators with people that would not be sympathetic with labor. The court said that they should be seasoned labour arbitrators that make these decisions. The language said the minister could appoint “who in his opinion” was qualified to act and judge the cases. The minority says that the minister’s decision was reasonable and didn’t need to be interfered with. The majority upheld the court of appeal and said that the ministerial appointments must be upheld with the statutory wording and purposes of the legislation. The court says that the scheme is an alternative to strikes and lockouts and must be fair to both sides and provide impartial arbitrators. The arbitrators must be qualified with impartiality, expertise, and general acceptance of the labor community. They decide that the standard of review is patent unreasonableness. They did so because of the subjective language of the statute that empowered the minister, contained a privative clause, and were broad powers of a minister of the Crown. DECISION: They decide that the minister was acting absurdly by selecting the retired judges and was acting patently unreasonably. Law says that the court took an unfettered power of discretion and constrained it with their own policies. LAKE v CANADA (Minister of Justice) (2008 – SCR): Interpretation of the CharterFACTS: Lake is moving drugs across the borders and gets caught in Canada and sentenced to three years. He serves his time and then the Americans ask for his extradition to be tried for drug trafficking. The minister decides that he will surrender him to the USA. He appeals this discretion. Lake argues that this would infringe on his Charter rights to mobility under Section 6. ISSUE: What is the standard of review for this discretion? Is it unreasonable?ANALYSIS: The appeal to the SCR concerned the standard of review. It is a ministerial decision based on policy. Lake says that the interpretation and application of the Charter means that the minister’s discretion must be used absolutely right and therefore the standard of review should be correctness. The Crown says that it is a deference setting because it is based on policy, minister discretion, and foreign relations. The minister had decided that Canada didn’t have the jurisdiction to try the matter so the intrusion on Lake’s rights was justified. DECISION: The court agrees that it is a deferential standard. Charter involvement does not automatically lead to a correctness standard. The minister had to balance many factors including both the Charter and policy in arriving to his decision. It was a reasonable decision based on his own written reasons. The offence occurred in the US, had jurisdiction, and a superior interest. DORE v QUEBEC (Professions Tribunal) (2012 – SCR)FACTS: This is concerning litigation and lawyer tactics that aren’t particularly polite, respectful, and foul-mouthed which hurts our reputation. The bar wants to impose a civility code. The counterpoint is that lawyers have to exhibit zeal and put the client first and should not be limited. Dore was suspended from the practice of law for writing a letter to a judge which explained his feelings on his decision. The judge makes some severe comments back and Dore gets upset. Dore’s letter REALLY slammed the judge later on. ISSUE: Was the discretionary decision to stop Dore from practicing law due to a lack of civility and moderation open to judicial review? What standard? Was the decision reasonable?ANALYSIS: There is a specialized knowledge that the tribunal applies and they should get some deference. The standard of review was decided to be reasonableness. Everyone agrees that there is a violation of freedom of expression under Section 2(c) of the Charter. Do we go through section1 and Oakes or through the administrative review lens? They say consider the violation when determining the statutory pursuit and purposes and if in the pursuit of these things you reasonably infringe on his rights, then that’s okay. The court is concerned upon review that there has been an appropriate balance between the Charter infringement and the statutory goals and their importance. A Charter challenge on legislation is the correctness standard but a reasonableness standard will be used for fact based decisions about the application of the Charter. DECISION: Admin decisions must be consistent with the Charter. Correctness is the standard for assessing laws vs constitutionality. The tribunal should balance the Charter values with the statutory objectives. Consider the statutory objectivesHow the Charter value will best be protected in light of the objectivesDISCRIMINATION, VAGUENESS AND OTHER FOR CHALLENGING DISCRETIONDiscrimination: To treat persons or situations who are alike differently. Legislation does this all the time and is constantly challenged on this. MONTREAL v ARCADE AMUSEMENTS INC (1985 – SCR)FACTS: There was a review saying that the legislation was discriminatory. The first step is to look at the primary legislation and see if it was authorized. It can be expressed or implied but it is better if it is express. We have a bylaw that concerns amusement machines and where they can keep them, where they can be located, and who can enter. The legislation took the amusement halls and put them in a very tightly controlled area. They say that they are being prohibited and not even regulated! They say they have been discriminated on the basis of their clientele and that the bylaw is vague and uncertain. ISSUE: Is this bylaw discriminatory? Is it vague or uncertain when describing “amusement machines”? Is the law valid?ANALYSIS: This line of reasoning can be used for regulations and bylaws mainly. The delegate of the power is using its policy discretion to create the regulation or bylaw and is therefore open to review. There is discrimination saying that 18 years or older can operate amusement machines but those younger cannot. There are provisions for the location of the machines also. The bylaw is designed to restrict the machines and the halls to certain parts of the city and to restrict the age of the patrons. The bylaw has a fine for the first, second, and third infraction. DECISION: It is uncertain what type of machines qualify as amusement machines. It is uncertain and vague. It was also argued it was discriminatory and that it was prohibitory and not about zoning which means it’s a criminal law. The SCR says that there would have to be express power to discriminate in this case. Pg. 69 outlines the discrimination argument and says there is evidence that this type of law would be invalid. RATIO: The enabling legislation must explicitly state that you are able to discriminate. This is for municipal bodies that have partial or unequal in operation laws, unjust, disclose bad faith, or involve oppressive or gratuitous interference that a reasonable man could find no justification.Rule for Vagueness / Uncertainty Test: Would a reasonable person (ordinary citizen), sufficiently informed if it is of a technical nature, understand what the legislation was doing? Can it be understood by an ordinary person?Shell v Vancouver (1994 – SCR): This was ruled discriminatory because the legislation just named Shell but allowed other companies that did business in South Africa to continue business withVancouver. There was no express authorization to pass this kind of business discrimination so they look for implied authorization. The majority says no and that you can’t hide this as business decisions as opposed to the fact it was legislation. Retroactivity: A delegate can only have their laws do this if the enabling statute allows it in words that are clear, precise, and wholly free from ambiguity. Fettering of DiscretionFor discretion, you want there to be an independent exercise of judgment. When you have someone fettering your discretion – telling you to act in a certain way at a certain time – your discretion is no longer exercised independently. Wempey v Director (Environment): The permits weren’t granted because the authority felt it was not prudent to allow a local plant when they hadn’t decided on a making a regional one or not yet. The person made the decision based on the minister’s policy and some said that should not be a consideration at all – some said it was fettered by acting in accordance with policy. You could also characterize his actions as being dictated by the minister. The SCR has said that public guidelines are a good thing as it told affected parties what was expected of them and how the decision would be made. This is good if it leads to a transparent government and better informed population. How do you make it a guideline but not fetter? The public servant must leave the impression that they are making the decision and not just automatically applying the guidelines and that you will make some exceptions. In Whitby, there was evidence that he had deviated from the ministerial policy and therefore they decided that his decision was made unfettered. Ainsley Financial Corporation v Ontario (Securities Commission)FACTS: Some business practices were to go door to door and try and sell – sometimes to at risk consumers. Ontario published guidelines to protect people from the high pressure tactics. Security dealers had to file a risk disclosure and suitability statement and there had to be an agreement between the dealer and buyer in regards to the stock. The policy didn’t apply to security dealers themselves, just the rogues. ISSUE: Ainsley alleges that it is policy statement that fettered decision making by forcing the securities commission to adhere to it always?ANALYSIS: The OSC said that they have the power to pass these guidelines and to discipline and sanction security dealers under statute. That power allows them to regulate. They say that the general public interest to protect investors and promote fair and equitable capital markets supports this. They don’t have a specific provision that gives them the power to regulate. DECISION: They don’t have power to regulate by policy statement. They made the guideline mandatory which is not acceptable. There were penalties also. This was found to be ultra vires. Fettering by Policy Summary: This cannot be too rigid, compulsory, or mandatory. If you can show that you don’t always follow the policy and exercise your discretion independently, you should be fine and the policy will be allowed to stand. FETTERING DISCRETION BY CONTRACTPacific National Investments Ltd. V. City of Victoria [2000 SCC]There was a focus on revitalizing the harbor area. There are Crown corporation that are created to make these developments. One corporation signs a deal with city council which divides the responsibility between the two. The Crown corporation sells its interest to PNI. The commitments of the corporation was dependent on a zoning decision. This happens and PNI begins the developments. The first phase was a huge success and it mostly involved beautification. When the second stage was supposed to start (water lots with commercial and residential developments), there was a public outcry to stop it so the new council reneges on this part of the agreement. ISSUE: Can the city walk away from its contractual obligations? Can it be fettered by the contracts? Can PNI get damages for the change in rezoning? A municipal council cannot bind future councils. In the absence of legislation specifically allowing this the proper approach to municipal powers is to interpret them so that a present council could not bind future citizens. The Crown cannot be bound by contract. There are no damages therefore. A municipality as a corporation arguably does have an implied power to bind successor councils by a contract in the exercise of ordinary proprietary or business powers. There can be no direct or indirect fetter on council decisions (must stick to first plan due to damages – indirect). Bastarache (Dissenting) – Law likes this Didn’t bind itself to pass a by-law but merely agreed to honour its contractual commitments. A contractual term which allows for damages in the event of a change of policy by the city is not void per se for public policy. Councils are free to legislate as they like, but they cannot ignore the contractual obligations that they owe. Why should we punish those that deal with the government council as opposed to other people or corporations?Acting under DictationKoopman v. Ostergaard [ 1995 BCSC] – Same vein as Roncarelli v DuplessisEnergy license for well granted, forestry issues license to cut timber for access road because “felt compelled”. They felt like they were a junior department to Energy and that Forestry had to follow suit. ?Mr. G. fettered his discretion as a result of his misapprehension that he was compelled to issue the licence to cut in view of energy’s approval of the well authorization – in spite of his own concerns and objections of Min. of ForestryPART FOUR: Judicial Control of Administrative Process – Procedural GroundsNatural JusticeThe courts have said that natural justice is the historic term but that they recognize something larger: A general duty of fairness. Cooper v Wandsworth Board of Works: The board said that a person had to give 7 days notice before building a house and Cooper did not so they demolished his half built house. The court says that they should have given him and opportunity to be heard before taking his property.Duty to be Fair – Re Nicholson and Haldimand-Norfolk Regional Board of Police Commissioners: A constable was terminated without reasons and notice. He didn’t qualify for protection as he had been working for less than 18 months. The court still found that he had a right to the reasons of his dismissal and should have been able to make an oral or written submission to the board. They would then be allowed to make the ultimate decision. Martineau v Matsqui Institution Disciplinary Board (No 2) (1980 – SCR):This was due to some intimate relations between prisoners. The Crown argues that the prisoners do not have rights and are in jail for a reason. They say that the prisoners are entitled to no natural justice and that it doesn’t matter that certain obligations were not met. ISSUE: Can certiorari be used? What other admin law areas are impacted?ANALYSIS: The court says that you cannot use certiorari because there are no rights affected as the prisoners have lost theirs. Can they go to the federal court of appeal and claim natural justice? At this time, natural justice only applied to judicial or quasi-judicial bodies and not admin bodies. The court extends this through the idea of fairness. Fairness is boarder and includes any rights, interests, privileges or liberties. Nicholson recognized a general duty of fairness in Canada. Legislative bodies and Ministerial “Broad Policy” decisions are exempted from following the doctrines of natural justice or fairness. The more you go towards natural justice (judicial), the more procedural protections you get and vice versa. RATIO: Certiorari is the chief means of controlling illegal government actions. It is available whenever a public body makes a decision that affects the rights, privileges, interests etc. Knight v Indianhead School Division: There was an officer who was appointed under provincial legislation and signed to a contract. There was litigation surrounding his dismissal and the question as to whether or not he was entitled to fairness arose. It would not apply to private contract law so he argued that he was being discharged from a public office (not at pleasure). They outline factors that affect the obligation to procedural protections (more fairness):The relationship between the body and the individualThe finality of the decision (is it a recommendation or binding?)What is the impact of the decision on the individualThis is the most important factorIf it is a legal right, it is going to have an impact. If it is a highly regarded interest in which the individual has invested a lot, there will be more protections. You don’t have a right to a job that you lose, but it is an impact on your right to earn your living. You have a very valuable interest in the job. The court decides that some fairness is required and that they should have given him notice and allowed him to state his case. He knew that the board was unhappy for a number of months and didn’t take the opportunity to state his case. The court decides that fairness has been met in this case. RATIO: The tribunals are not courts, they just provide an individual with an opportunity to make, hear, and state their own case. Baker v Canada (Minister of Citizenship and Immigration) (1992 – SCR):Baker was arguing for fairness in regards to her deportation decision. This is fairness, not natural justice, because she does not have a legal right that is placed in jeopardy. Has there been a denial or fairness? She argues that her children, spouse should be allowed to be part of the process. ANALYSIS: The court determines that this has an element of judicial decision making. The statutory scheme allowed for no further appeal notwithstanding judicial review and that spoke to more process and fairness. Baker says that this will be a great harm to her children. The court determines that these are very important interests and that she is entitled to fairness here. They say that she has a “legitimate expectation” to receive notes on the decision due to previous representations or assurances that something will happen. A legit expectation is an expansion of fairness to a wider range of interests; those promised to you by an authority or other party. The court decides that there were interviews conducted and fairness was complied with. RATIO: There must be a fair and open opportunity for the offended party to state their case and hear the case against them. They cannot be unfairly or arbitrarily restricted from this. Congregation des temoins de Jehovah v Lafontaine (Village) (2004 – SCR):The Mormon church cannot find available land and it is due to city council decisions on bylaws and its variations. On the second and third times they ask for reasons, are refused, and the city council says they don’t have to because it is a planning matter and we denied it. The SCR holds that the municipality owes an obligation of fairness. They are a legislated body making policy decisions so you would think they are exempt. The court said that fairness was breached when the denial was provided without reasons. This does not require much fairness because it is an administrative decision. It does require some though because religion is really important to some people. The SCR listed 5 major factors (from Baker):The nature of the decision and the process by which it is reachedThe statutory scheme and provisionsThe importance of the decision to the partiesThe legitimate expectations of the MormonsThe nature of the deference due to the decision makerLEGISLATIVE BODIES have NO DUTY of FAIRNESS: with one MAJOR exceptionAttorney General of Canada v Inuit Tapirisat of Canada (1980 – SCR):There are submissions between the CRTC and the Inuits regarding telecommunications. Right before the decision is given, the federal cabinet intervenes and makes a decision based on the CRTC decisions and ministerial decisions. This is the direct involvement of politics into an administrative function. The minister did not share his reasons or information. The SCR says that there is no obligation of fairness to the council since it was a legislative body because it was making policy decisions and acting on its own volition. RATIO: If it is a legislative body, there is NO obligation of fairness. An exception to this is when a council makes a re-zoning bylaw because it is actually a competition between which neighbour gets which boon or eyesore. LEGITIMATE EXPECTATIONSCouncil of Civil Service Unions v Minister for Civil Service (1985 – HL):The GCHQ was the spy agency in Britain that spied on its own citizens. It was a classic example of Big Brother. They were a security agency led by Margaret Thatcher. She doesn’t want them to go on strike or damage things so she wants complete control over the GCHQ. They had, through custom, been allowed to be a union. Thatcher changes that with no consultation or notice. ANALYSIS: The court recognizes that there is no right to have a union which means there is no interference with rights and therefore no need for natural justice. The practice of consultation however created a legitimate expectation. There would be a small burden of procedure on the decision maker. They say that GCHQ was treated unfairly when there was no consultation and this breached the legitimate expectations. RATIO: The SCC has upheld that legitimate expectations are only procedural – the decision is not binding (I promise you the license, I should get the license). They would have to consult after the fact and listen to reasons but NOT have to necessarily change their decision. Reference Re Canada Assistance Plan (1991 – SCR)The federal government didn’t want to spend more on the CAP despite the rising costs. They had agreed to 50/50 but wanted to change it so that they had a limited contribution and the provinces would pick up the shortfall. The provinces say that before the legislation is changed that they are entitled to the right to consent to the change. This case is talking about legitimate expectations as a substantive right because they want the right to consent. The court say no, it can only give rise to a right of procedure – consultation. It is a policy decision and a legislative act. Recognizing a substantive right would interfere with the legislative process. That is not available in natural justice or fairness. Mount Sinai Hospital v Quebec– BinnieSinai wanted to build a new hospital that offered both long term and short term care. Successive governments assured the hospital when it was raising money that they would finance them on the basis of long and short term care. After building the hospital, they didn’t get approval for a permit on the basis of long and short term – only for long term care. The court of appeal said you must grant the permit but the SCC says that the right is only procedural. They have the right to consultation and reasons but not to the permit itself. Sunshine Coast: A school board is changing the curriculum for French immersion and someone says no. The court says that this is a legislative function by the school board and therefore legitimate expectations don’t apply and they don’t need to consult. Furey: They are going to close a school board and people oppose. If they followed sunshine coast, they would say that it is a legislative function and legitimate expectations doesn’t apply. The court says that this is a specific function, not a general one and therefore legitimate expectations were required and the decision maker had to give them a participatory right to make their own case, be heard, or hear the case against them. This was since they did that it the past. SECTION 7 OF THE CHARTER – FUNDAMENTAL JUSTICESingh v Canada (1985 – SCR)This concerns situations that violate section 7 – life, liberty, and security. Singh was seeking refugee status and the typical process was through screening and rarely through hearings. It seems inherently unjust to not have more in person hearings. They read the Charter and its use of “everyone” as being very broad – anyone that is touching Canada. The court reads life and liberty fairly narrow but reads security of the person as being affected by this decision. That triggers the first part of section 7. The second part is the right not to be deprived thereof expect by the principles of fundamental justice. The court said that it may be necessary in some instances for there to be oral hearings and testimonies. Blencoe v BCHe says that the human rights tribunal hearings should not continue because his security of the person is threatened and that natural justice was violated by the delay in his hearing before them. Section 7 does not apply to economic or property interests. Liberty is about making choices that affect your life. Not all decisions fall under this category, they must be associated with your life as an autonomous human being with dignity. They must be core choices that go to your identity of a person. This includes where you live, raising your children, and their medical participation. The liberty interest was not engaged in this case. Neither was security of the person because the psychological trauma inflicted by the state fell outside the scope of section 7. There are two views to the right to life and liberty:Negative View: You have these rights and the state is to be prevented from interfering with those rights. This is the historical approach. Positive View: Not only must the state not infringe on these rights, but they have to provide access to opportunities for a “certain quality of life”. This would impose an obligation on government to provide a certain quality of life, liberty, and security of person. This has been generally rejected for fears of bankrupting the state. GENERAL PROCEDURAL REQUIREMENTSKane v Board of Governors of University of British Columbia (1980 – SCR): Doctor Kane was suspended for 3 months for the misuse of university facilities and grant money. He has the right to appeal to the board of governors and he does. One of the members is the president who imposed the suspension. It is not an unusual provision – collegial governance. The president attended and heard the professor’s case. The president then went out to dinner with the board and Kane was not included. Allegedly, he acted neutral. The court says that he still provided the board with his version of the facts and this in effect allowed him to put evidence in before the tribunal and gave Kane no chance to respond or hear the case against him. They say that his work is his livelihood and it is an important decision which means that there will procedural requirements. It must act in accordance with basic fairness and natural justice. If they do, they can create their own custom mechanisms. Both sides need equal opportunity to enter their evidence and hear the case against them and state their own case. In some cases it may mean the right to make oral argument or written or cross-examination. They should be able to meet the case made against them – you need to know the charges facing you, no ex parte, no one side giving facts and you aren’t allowed to test it. RATIO: An administrative decision has to give each party equal opportunity to make and state their case in the presence of others to be in accordance with natural justice and fairness. Administrative Procedures Act: Don’t have to memorize it but know that it exists. It is a short statute that imposes certain procedural requirements on statutory decision makers exercising statutory power. It outlines the concepts of open hearings (both sides there) and cross examination. It says when oral hearings are needed and when written sections can be provided. There is a statutory provision saying that you have a right to reasons. Everything above is good, but the problem is that it treats all statutory decision makers as the same thing when they are quite different and varied. This applies to only certain decision makers however and it is not every Alberta decision making tribunal – Ontario is much more broad. Ours is about 7. Natural Justice/Fairness – Two PillarsRight to a Fair HearingTypically written for administrative purposesOral hearings will be used when the most important rights are at stakeThese include person, property, and losing a pre-existing entitlement Right to be heard free from BiasRIGHT TO A FAIR HEARING – Audi Alteram PartemFor administrative purposes, it is normally sufficient to allow parties to submit written arguments. Oral hearings are not entitlements and are typically used in situations where credibility is an issue. The greater the right at stake, the more likely you get an oral hearing. If your right to person, property, pre-existing entitlement, you probably get an oral hearing. The central idea is that the person should know the case against them and be given an opportunity to respond. The right to be heard is commonly thought to have 6 main features:Adequate Notice: Notice includes knowing where, when, and what the hearing is about. They must be given a reasonable time to prepareAdmin body should tell people what the possible results of the hearing are but they don’t have to if a reasonable person would have known what they wereOral Hearing Where Appropriate: This is situation specific – normally two things.Situations where the credibility of witnesses is of central importanceSituations where the legitimacy of the administrative process were undermined and participants must be reassured that their concerns are taken seriouslyLegal Representation: This does not include the government providing you with one if you cannot afford it. Before it was at the discretion of the tribunal but not so much anymore. There are a few criticisms: rich people will be advantaged and that the presence of lawyers will make the proceedings too formal and court-like. Information Disclosure: Admin bodies are reluctant to release information when:They believe disclosure will harm the individual to whom its disclosed (weak)The disclosure will harm the person who provided the information (strong –redact)Undermine frank and confidential exchange of info in the future (weak)Problems with Information Disclosure Typically Arise in FOUR situations:An agency has collected info about person and the person wants that info: Courts are reluctant to allow withholding. Furthest they will go is disclosure to an agent instead. Agency gets info about person and person wants to know the source: Courts allow the protection of identities especially where bodily harm is possible. They will normally require the gist of the information to be released; other parts can be redacted. Person wants info about third party disclosed: Not required to release in a business setting unless necessary for the regulatory scheme. Admin body prepares internal reports and party wants to see them: Courts are reluctant to force disclosure but factual information must be provided – not opinions.Challenge through evidence, argument, and cross-examination: Evidence rules for the body are provided in the statute. A person is entitled to present their own case and evidence/cross-examine. The process must be adequate – not strict. Admin Body should make decision based on record: This provides the Doctrine of Official Notice. Decision makers can take into account info that is not part of the hearing process where it is convenient and not controversial. CARDINAL v KENT INSTITUTION (1985 – SCR):A warden had issued solitary to a prisoner. This decision was subject to review, on a regular basis, by a board to make sure that it was still needed and not causing a detriment. The board recommended that it be ended but the warden continued. ISSUE: Was the prisoner denied a fair hearing? ANALYSIS: The prisoner has lost his liberty and probably rights to natural justice but they are entitled to a measure of fairness. The decision was based on the lawful exercise of power by the warden. The unfairness was not from the decision but because it continued despite the board’s recommendation. The court says that the prisoner should have been told the reasons why it was continuing and an opportunity to address them. RATIO: You need to give them the opportunity to address the case against them. SINGH v Minister of Employment and Immigration (1985 – SCR): Immigrants FACTS: The regulations called for a written hearing on the basis that there were too many applicants. There was a screening stage, and if you passed it, you would go to a more formal process probably with oral hearings. The Charter applies - section 7 and security of the person. ISSUE: Did the written hearing constitute a denial of fundamental justice?ANALYSIS: Fundamental justice means, at a minimum, natural justice and fairness. The decision maker must act in good faith, without basis, and a full opportunity to hear and met the case against them. An oral hearing will not be required in every case just where credibility is at stake and it is here. RATIO: Fundamental justice is composed of natural justice and fairness. RIGHT TO NOTICE OF A HEARINGBeaverbrook v Highway Traffic and Motor Transport Board: Restrictions were put out on property but the owners weren’t sent specific notice. There was a posting the newspaper with a description of the land but that wasn’t sufficient. RATIO: Notice must be very specific for it to be sufficient for them to argue the case against them. In a professional setting, you must state the provision and the charges perfectly (Wilson). DISCLOSURE- Right to know the Case that Must be MetCardinal v Kent Institution: You must have enough particulars to know the case and meet it.CPR v Vancouver: - Arbutus: In 1999, CPR decided that it should discontinue operations on this line and develop the land for commercial purposes. They said if they don’t develop it the government could buy it or expropriate it. The city stalled the decision and then passed a bylaw designating the land as a public nature walkway. This closed the redevelopment potential. ISSUE: Was CPR denied fairness when the bylaw was passed?ANALYSIS: CPR said that they didn’t have the proper particulars and full disclosure. Even though this was a legislative function – the passing of a bylaw – and shouldn’t attract natural justice and fairness, it was targeted at only one property and one owner so it was more quasi-judicial. The SCR says that Vancouver had to give fairness on that basis. They say it was met however even though the notices could have been better worded. The CPR knew what was happening and they had the opportunity to resist any of the elements of the bylaw. There was no withholding of material that hampered the right to make a case against the bylaw. DISCOVERY RIGHTSWe have full discovery in civil litigation and it has become a big part of our justice system. Even in criminal trials (Stinchcomb), there is now an obligation on the Crown to disclose. It still gives the Crown some discretion on what and when it releases the information. There is a general acceptance that tribunals should have some obligation of disclosure especially if the tribunal is making a decision that concerns the person. How much information ought to be given to an affected party? What can be kept secret? Can we keep the source hidden? In economic situations, when tribunals get evidence first hand, that is supposed to be disclosed to the parties. Original statements of fact and evidence should be given to all parties so they have a chance to address, meet, or rebut. LATHAM v Solicitor-General of Canada FACTS: Latham was called back from parole and then had it revoked. The violation report said that he had violated a child welfare matter with his daughter. At the hearing, the panel met with prison officials and the parole officer. The info was not shared with the applicant. ISSUE: Was it sufficient disclosure of the case against Latham? Where did the info come from?ANALYSIS: The court said that the notice was not adequate and that he had no opportunity to make a full response and defence. The court’s say that you don’t always have to present the source when it could be detrimental to them. DECISION: You are entitled to the information but not the source. Charkaoui v Canada (Minister of Citizenship and Immigration) (2008 – SCR):FACTS: There were parallel legal actions going on between Charkaoui and the government of Canada. He was subject to a security certificate which made it easier to be detained, deported, and surveillance warrants. This was awarded under the Refugee Act at the discretion by a judge. In 2007, the SCR ruled that the process of the reasonableness of the certificate violated section 7 because he didn’t have a right to a fair hearing but they suspend the legislation to let Parliament come up with new legislation. This was to challenge the reasonableness of the certificate and this was brought under the old legislation. ISSUE: Was their proper disclosure about the imposition of the security certificate? Is CSIS under an obligation to retain and disclose the information in their discretion?ANALYSIS: The original notes of the CSIS officers were destroyed because the statute didn’t say that they had to keep them. It was also internal policy to keep CSIS looking good. The notes contained material that may identify a source or other sensitive material. During the proceedings, CSIS found new information and wanted it admitted but he wanted it excluded. CSIS says that they are spies with extraordinary powers and should be treated differently not have to disclose any of their information. The internal policy to destroy the notes was not stated in the statute and the court found that they would be of great use to both the accused, officers, courts, and ministers. We are talking about an individual’s liberty so the procedural obligations will be high. You must be able to challenge the information because it could be wrong. DECISION: The court says that there has to be some disclosure of the original information to the person reviewing the security certificate but not to the accused. You get the gist of the case and sufficient particulars so that you can effectively address the evidence. The judge gets unqualified access to the original material and then can filter out information to the accused. The officers have a duty to retain and keep the information. RIGHT TO ADJOURNMENTThis flows from natural justice and fairness to allow you to have time to properly construct your case and find the proper legal counsel. The onus is on the party seeking the adjournment to support and justify it with reasons that are not solely attributable to their own actions. In other words, something has happened that is beyond your control and you cannot make a case. Re Piggot Construction Ltd and United Brotherhood of Carpenters and Joiners of AmericaFACTS: Piggot didn’t advise the tribunal that he wasn’t going to show up and his counsel didn’t tell the court that they were looking for an adjournment. They didn’t call the opposing counsel or the board. They gave them absolutely no notice but wanted it anyways. ISSUE: Was the tribunal under the obligation to provide an adjournment?DECISION: The court says nope. You have to have acted reasonably and in good faith. CUPE Local 30 v WMI Waste Management of Canada (1996 – ABCA)FACTS: CUPE was denied an adjournment. They say that they need it to make a case that they needed an appeal. The court said that you have no legitimate excuse, have not acted appropriately, only need the adjournment to delay the proceedings, and the tribunal denied the adjournment reasonably. DELAY IN PROCEEDINGSBlencoe v BC Human Rights Commission (2000 – SCR):FACTS: Political sexual harassment guy who left BC and went to Ontario. Came back to BC and couldn’t find employment and the charges were taking a long time to conclude. ISSUE: Has there been an unreasonable delay in proceedings?ANALYSIS: Blencoe says that justice delayed is justice denied and that there has been an unreasonable delay. The concern for an unreasonable delay is that your ability to defend yourself fully may be jeopardized by the passage of time (witnesses forget or leave etc). The application was under the Charter which they denied but the court applies the common law and natural justice and fairness. They said that delay of a certain extent or degree can be considered an abuse of process and therefore a violation of fairness. The court didn’t think that the delay severely prejudiced Blencoe (though 2 witnesses died) because he could still effectively make his case. What would constitute a delay of such a degree that it was abuse of process? It is possible but the bar is very high. Where an inordinate delay has caused significant psychological harm on the person it such that it brings the administration of the system into disrepute, it will be considered an abuse of process. You must also show a significant prejudice to the accused. RIGHT TO AN OPEN/IN-CAMERA HEARINGMost hearings are open to the public but the court can be closed due to legislation, age, or sensitive matters (such as a really contentious divorce) as well as important country matters. The press challenges this all the time as a restriction on freedom of the press. The courts have eroded these provisions by saying that it can be done in another way that is just as effective. Hearts Of Oak Insurance Company: - Old Case, In-Camera Hearings are availableFACTS: You can get an in-camera proceeding as opposed to an open one. You must ask for it and you must provide reasons for why it is needed. Edmonton Journal Case: There is a fatality inquiry and a question about some of the medical records. An act had a provision that said a mental health hearing was to be closed. The EJ challenges this. The court says that an open hearing is necessary for the confidence and assurance of the public in the judicial system. The court said that an in-camera hearing would be just as effective at protecting the medical records. Statute doesn’t say it has to be public. RSJ Holdings Case: There were complaints about RSJ building student housing. City Council held closed meetings and then passed a bylaw stopping construction. RSJ challenged and it went to the SCR. They say everyone has the right to an open and transparent democratic proceeding and this violated it. They uphold the quashing of the passing of the bylaw. RIGHT TO COUNSELLaw feels like the structure of the justice system favours the party with the best counsel and not necessarily the more correct or just position. Everyone however has the right to pursue or defend their own case. In the Admin context, counsel normally only appears where the stakes are higher (immigration) and more important rights engaged. Joplin v Chief Constable of Vancouver (1982 – BCSC): A regulation apparently allows for counsel during the latter part of police proceedings or at certain levels but rather than that they aren’t permitted. An officer challenged his decision because he said he needs to be represented by a lawyer to make his case and that even though it was only a 1 day suspension it would not be a good thing to have on his record. The court concludes that there was a right to have counsel represent due to natural justice even though there was the regulation. RATIO: There is a substantive limit on the kind of procedural limitations you can impose. They must accord with natural justice and fairness. Law feels the regulation should defeat the CL. They mention the military/police force “Discipline Force” exemption where there is a long-standing tradition to not have a lawyer represent you but another member. Canadian courts have disregarded this and recognized the right to force members to have representation by counsel. Other Areas: There is no right to counsel for domestic tribunals and matters unless there is a significant right or livelihood at stake. In discipline matters before domestic tribunals, typically there is no fairness/natural justice because you chose to join the club and knew their rules. THE ADMINISTRATIVE TRIBUNAL AND COUNSELNowadays, we have 3 lawyers at an administrative tribunal when we used to have none. One for each party and one for the tribunal. The tribunal had a lawyer to help identify legal issues and counsel for that. They have solicitor-client privilege and such. Others allege that this is not fair because counsel for the tribunal may advocate a position that favors one party (I like that argument more) and the other party will have no ability to respond to it. However, even if it’s not shared with the parties, and counsel makes a mistake, it should appear on the face of the record and would therefore be an error of law and a ground you could attack. Counsel for a tribunal is also supposed to help with the drafting of decisions. The tribunal is supposed to have the power to make the decision; are they giving some power to counsel here? This would be impermissible. If counsel has been involved in the proceedings, drafting the decision should NOT be allowed. Even if they stayed out of it, Law still has problems with it. He would prefer that counsel is limited to more of an editorial role. Bovbel v Canada (Minister of Employment & Immigration) The immigration and refugee tribunal has an exhaustive and heavy case load which spans the country. They use panels which causes there to be less consistency. They are allowed lawyers/advisors. This leads to the Minister creating a policy to help reduce this – drafts are presented to legal counsel. The policy is made to exclude outside influence and provide safeguards for the independence of the tribunal. The lawyers are not involved in the hearings. The court says that these safeguards show that the tribunal was compliant with natural justice and fairness. The tribunal was sufficiently set up to leave them free from influence. EVIDENCE GATHERINGAdministrative tribunals are not required to comply with the rules of evidence except to the extent proscribed in the statute. Many statutes will state that the tribunal is not bound by the rules of evidence. The fundamental rule of evidence in administrative proceedings is that the evidence must be relevant and have probative value to the issue(s) at hand. It should be the best evidence possible (direct, first hand evidence, original > copies, capable of X-examination). Hearsay can be allowed when it is essential for the party to make or defend their case. As opposing counsel, you must point out that it is inherently unreliable and has low probative value.Laux Article: Evidence should be gathered in a manner that allows the party to test/respondYou should not hear evidence from one party at the exclusion of the other (ex parte)Any material evidence is shared fully between the parties (disclosure)There can still be redactions – provide the gist so that they can respond/speak to itPg.292 - Murray v Rockyview: the board recessed their hearing to allow the board members to visit different recreation facilities before making a decision on one before them. This was all barred. They had become witnesses in their own proceedings and there was no way to test their evidence! The developer was prejudiced and could not respond. They should have paid a consultant to provide an independent assessment. Lobbying Council Members: Law finds lobbying abhorrent. The more openness, transparency, and disclosure the better according to Law. When someone is lobbied, it is behind the scenes, and the other party has no chance to hear it, let alone respond or test it!RULES OF EVIDENCE AND WEIGHTCan a reviewing court question the weight assigned to certain evidence by a tribunal?Baker says that you can but other cases say that you should not because that would cut down on deference way too much. The other side is that it is an error of law and the rule of law must be upheld. An erroneous finding of fact is an error law. Even when there is evidence, you should advance the argument that it is light and unreliable and relying on it is unreasonable.All hearsay witnesses should be made available for cross-examination.Grand Council of Crees: There should be disclosure to the tribunal that is full. The company says that we showed methodology and had another body signing off on it. The tribunal wants the whole study and everything. The court says that this could reveal important economic information about the company. You couldn’t say that the company didn’t provide evidence and the evidence was enough that you could rule on it. The decision cannot be struck for no evidenceCROSS-EXAMINATIONThis is the notion that if someone gives information we should be allowed to ask them questions surrounding how they obtained it and their own reliability/credibility. It is not an absolute right, but you have the opportunity to show that it is appropriate and necessary for you to meet the case against you. In settings where it is necessary, natural justice and fairness says you need it. Murray v Rockyview: The chair ruled in advance that no cross-examination would be permitted, just the opportunity to rebut. The court says that there is no absolute right, just the opportunity to contradict or meet the case made against you. However, you cannot preclude cross-examination in advance. The blanket ruling violates natural justice and fairness. Catholic Children’s Aid: A man wants his name removed from the child abuse register. The evidence against him was given by a social worker about a conversation she had with the victim. The victim had recanted later on and that’s why she wasn’t there as a witness. The evidence was crucial, he had no chance to test the evidence, and refute the case = denial of fairness. KEEPING A RECORDAs an aspect of natural justice, it has sometimes been said that a verbatim transcript of the proceedings is required because it lets you make a case on review or appeal. These are very expensive however and are not required in all proceedings. ALRB v IEBW:The court says that whether there is a transcript or not is a procedural consideration. In this case, having no transcript was not a denial of natural justice or fairness because it was adopted for legitimate reasons like maintaining the accessibility and cost of the proceedings. Even though a party offered to pay, this was a policy that helped everyone and the other party couldn’t show that they had a right of review or appeal prejudiced. CUPE v MONTREAL: Failure To Transcribe ProceedingsIt was argued that the absence of the transcript was a failure of natural justice because normally the board transcribed proceedings, it was there policy, but they didn’t do it in this case. Absent the recording, the applicant was unable to advance their grounds of review. The court said that we are talking about an inadequate record. RATIO: Is the record so inadequate that the party is not able to exercise their appeal rights or pursue judicial review? If the court can dispose of the matter without the recording, then natural justice is not violated. If they can’t, it probably is a violation. This is a very narrow right. RIGHT TO BE HEARD BY THE PERSON WHO DECIDESThe party/person making the decision must conduct the hearing, hear the parties, in order to make the decision. Aldridge: The case said that the tribunal could send out its own investigators and they could bring the information back and put it before the tribunal. Law feels that this is outdated because when you give information, you put it through your own filter. He doesn’t think it ages well. Consolidated Bathurst (1990-SCR):FACTS: This involved the Ontario Labour relations board that operated under a panel system. There would be around 50 full and part time members that would go hear cases. There is a need for consistency and fair and equal treatment. They followed a policy for consistency which said that it was not mandatory that there was a full board meeting and all matters would be discussed. Law and policy was the issue and not the facts. There were no votes to be taken. RATIO: The decision maker must be independent. They can listen to other submissions but they must retain the ability to decide it. The consultation process allows them to listen to other parties as long as they remain independent. This is not a violation of natural justice because there was no new evidence introduced and no re-weighing of evidence. Tremblay v Quebec (1992 – SCR)FACTS: This involved the Quebec Civil reimbursement system and how they dealt with medical costs. There was a complaint about it and a panel system was engaged. It was a 2 person panel and drafted a decision. It was referred up to the lawyers for review but the commissioner looked at it since the lawyers were busy. He disagreed with the decision and referred it to the consensus table for review. The majority agrees with the president’s view. 1 of the 2 decides to re-think his decision in the wake of this. ISSUE: Was this heard before the person who makes the decision?ANALYSIS: The SCR says that the consensus table machinery violates the safeguards talked about in Bathurst. The panel members independence has been compromised by the president’s interference. There was compulsory consultation with recordings of it which was designed to get to a consensus. The decision maker did not have adequate freedom to decide on their own opinion. This violates the independence of the tribunal and violates natural justice. RATIO: Do not have an even number panel. Ellis Don: You cannot have consultation from a higher authority. The consultation must be restricted to law and policy and NOT the facts. The decision maker must be free to decide on their own conscience. If there are any new issues raised, they have to be disclosed to the concerned parties and they should be given an opportunity to respond orally or written.REASONSThis has not been an important ground in natural justice and fairness historically because at common law there was never such a requirement. This has only evolved during the last decade or so. This was because courts do not have to provide reasons; they do so however so that there is an appearance of impartiality and that they aren’t arbitrary. They didn’t want to burden administrative decision makers with this because writing reasons is a difficult thing to do, it would increase costs, increase time, and unduly complicate things. One of the aspects of the Administrative Procedures Act is the requirement for decisions. Ones that adversely affect a person’s rights must be in writing and outline the reasons for the decision. This is found in Section 7 and only applies to a small range of admin tribunals. Baker v Canada: All that was provided to Baker was the case notes and there were no reasons. The court found that the tribunal violated natural justice by not providing reasons for why an important legal right (staying in Canada) was being infringed upon. RATIO: It’s not absolutely required that tribunals provide reasons but when the decision has special significance to the parties or there is a statutory right of appeal, reasons are required. Reasons may be required for you to pursue your right to judicial review as per Crevier.Can you strike a decision down for inadequate decisions?Couillard v Edmonton: There is a reference between NW utilites and a petroleum case. The requirements set out in section 7 means that the tribunal is under an obligation to set out its finding of fact and to provide reasons that are proper, adequate, and intelligent. This is a requirement for reasons under the Administrative Procedures Act, NOT common law. This is show because we need to give them to the affected party so they can exercise their statutory right to appeal. They went on further to say that stating a decision is not a reason. RATIO: You must address the matters before the tribunal for your reasons to be proper, adequate, and intelligent. Spinks v Law Enforcement Review Board: The decision was struck down because Justice Cote did not like the reasoning. He felt that there was something that went unaddressed. The idea put out is that you not only review the decision on a correctness or reasonableness standard but you should also review the correctness or reasonableness of the reasons. RATIO: Adequacy of reasons, at common law, appear to be a free standing ground of review. Newfoundland v Labrador Nurses Union (2011 – SCR): This dealt with an arbitrator’s decision and the argument was raised that it was unreasonable and the reasons were inadequate. The trial judge found that better reasons were required and struck it down. When it reached the SCR, Abella comes to the conclusion that the adequacy of reasons are NOT a free standing ground of review. It is wrong to separate the reasonableness of the decision from the reasonableness of the decisions. If you have reasons, they are relevant to determining whether or not the decision is reasonable. The reasons help you see that the decision falls within the range of reasonable outcomes. The reasons just need to allow the reviewing court to see how the tribunal made its decision and conclude if it was in a reasonable range of outcomes, Dunsmuir is met. RULE AGAINST BIASCook originated the rule in England with the Dr. Bonham case, which stated that if you knew one of the parties, you could not be the judge. At common law, no man who is party to the proceedings – or is closely related – can adjudicate. The party who alleges bias has the onus of establishing bias. It does not need to be actual bias, it is sufficient to establish on the circumstances that a reasonable person would conclude that the judge favored one party over another. National Energy Board: The chairman had worked with a consortium of companies and had a past association with one of the parties. They were hearing a pipeline application and it was determined that a reasonable apprehension of bias had arisen because a reasonable person would conclude that he favored one interest – building the pipeline. There are 7 ways that a reasonable apprehension of bias tends to arise:Decision maker reviewing own earlier decisionInterested party selecting decision maker/independence of decision makerPecuniary interest in outcome of the decisionExisting or previous association with one of the partiesBias through legal or other advisorPrejudgment Attitudinal bias demonstrated by words or conductAlberta Securities Case: The decision maker made the decision and then was part of the reviewing board. It was not necessary that he sit as there was sufficient membership for quorum from the 2 remaining members. The court said yes it is sufficient. You could argue that the legislation contemplated this bias by making a quorum of two, which he might have to sit on, and then it permits the circumstances that would give a reasonable observer a reasonable apprehension of bias. However, this case produces a reasonable apprehension of bias. Law Society v FrenchFACTS: The discipline committee recommended that French be disciplined and this was reviewed by convocation. The members of the discipline committee were part of the convocation gathering. The court said that although it appears that way, the statute contemplated them sitting on both, and that it’s not really an appeal but a 2 stage process. Law finds this to be thin. Alberta College of Phsyicans and Surgeons v RingroseFACTS: Ringrose was suspended by the executive committee quickly for public safety concerns. A member of the executive committee then sat on the discipline committee that suspended Ringrose for a year. The court said that there was no bias because it wasn’t an appeal, the executive did not rule on the merits of the case, and it was authorized by statute. MacArthur (326): Council is seeking to uphold a permit that is granted to itself. It is acting as the development appeal board which is authorized by statute. The court says that there is no bias as permitted by the statute. Law feels that it should have been a separate board entirely. Duncan v Law Society Investigating Council: Duncan was alleged to have stolen his client’s money. It was referred to the finance committee to see if this was a wrongful misappropriation and they do and they recommend paying the client out of insurance. The investigating council appoint one bencher to decide if discipline proceedings were warranted, sees this, and then sits on the council to determine discipline. ISSUE: Does this lead to a reasonable apprehension of bias since he knew of the finance committee’s finding that it was misappropriated and that the client should be paid out of the insurance fund? RATIO: The legislation authorized this so no reasonable person would view this as being a reasonable apprehension of bias. INDEPENDENCEThis mirrors how judges say that they need to be free from external influence to adhere to the rule of law and upheld citizen’s rights. This includes:security of tenure – you stay on as long as you behave well and until you are found to be in violation of that after due process, financial security – must be paid a reasonable amount so as to avoid bribery and salary typically cannot go down, and institutional independence – the executive cannot control the docket, assignment of cases, and assignment of judges. Is it necessary that an administrative decision maker have the same protections?Bell Canada v Human Rights Commission: It was alleged that Bell was not paying its female employees equitably. The commission would investigate and then would also issue guidelines on the tribunal that was supposed to be binding. They backed off and just said it helped categorize and decide certain cases. There was also an issue with the security of tenure for the tribunal. CPR v Matsqui Indian Band: This concerns adequate alternate remedies. The notion is that you have a statutory scheme that may have a right of appeal, narrow or broad, and it is preferable that you exhaust the options internally before you come to the courts for certiorari. The court should decline certiorari if there is an adequate alternate review/appeal. This preferred because it is said to be respecting the view of legislature who set it up. This is about giving native bands greater powers of self governance so that they could look after reserve lands, develop them, and manage money in them. There was an amendment under the Indian Act to allow taxation of those lands. It was allowed for you to fight the taxes by taking it to a review board and fighting it. The CPR had a tract of land on the reserve and they get a notice that they are to pay tax and they say no, we own the land. It is not reserve land. DECISION: The court said that the legislation is set for the created bodies to deal with the matters. However, there was no security of tenure and there was no obligation of remuneration – they were paid after the fact. The band appointed the members which means that there was no institutional independence. This means that the Indian tribunals lacked sufficient independence. There was no adequate alternate remedy so CPR could pursue their case in federal court. Ocean Ports: Pullback from Imposing Judicial Independence on Admin InstitutionsFACTS: There is an appeal under the BC liquor control board permit granting. A BC inspector conducted a hearing and imposed a weekend suspension on Ocean Port. This was sent to review and the board held a de novo appeal and upheld the suspension. The owner appeals to BC provincial court and wants the decision overturned because the board members were appointed at pleasure and had limited financial security. RATIO: The legislature can decide upon the necessary degree of independence subject to the constitution. Courts have an established degree of independence that is significant. Where the language is unclear or ambiguous, the courts will look at natural justice and fairness. The more they are a judicial decision maker or dealing with an important right, the more independence.PECUNIARY INTERESTS – That violate independenceThere is a concern that if you have a financial interest, that will arise to a reasonable apprehension of bias. The courts have said that you cannot have a direct interest financially in the proceedings. It cannot be too speculatively tied to the proceedings; it must be fairly close. Pearlman v Manitoba Law Society Judicial Committee: Pearlman was a lawyer in front of the discipline committee of the law society and alleges that a financial bias is present from the committee. If he lost the hearing, he would have to pay costs and that would save them money. This was said to be highly speculative and very tenuous. RATIO: A pecuniary interest can give rise to a reasonable apprehension of bias. The power to levy costs does not engage on during discipline proceedings as it’s too speculative. PREVIOUS ASSOCIATIONDoes the interest of a member of the tribunal disqualify them from a hearing about that particular interest? R v OLB, Ex Parte Hall: There was an argument that a labour relations board member having a labour background member that was highly respected in that field was biased due to his interest. This was in regards to a certification that a union opposed. The court found that he was biased because there was a political alliance that he had with the opposing union and that even though he took an oath, a reasonable person would see an apprehension of bias. Committe for Justice and Liberty v National Energy Board: This was involved in a pipeline dispute. A member had been the head of corporation that found the pipeline was viable and was strongly in favor of it. A reasonable observer would say that it was more likely than not that he would favor the pipeline proposal so the proceedings were ruled to be invalid. BIAS THROUGH INVESTIGATORS, LEGAL OR OTHER ADVISORSSuch v Alberta (Minister of Forestry): A lawyer that is preparing to oppose Such on a license application and was serving the minister who would make the decision. The minister took away the license right. This creates a reasonable apprehension of bias. Hutterian Brethern: The hutterites wanted to build a colony. 3 of the 9 members on the development appeal board also served on the municipal district board that had opposed a colony creation before. A lawyer worked for the municipal district board and was paid by them and he gave advice to the development appeal board. This created a reasonable apprehenision of bias. Mitchell v Institute of CAs (Manitoba): There are discipline proceedings for this CA in Manitoba. Mitchell advised and assisted an Indian Band to get money for a development. Mitchell was also acting as an agent for an Alberta investor, unknown to the Band. Mitchell had a falling out with the Band and sued them for the recovery of some money. These matters were eventually settled but the lawyer for the band was from TDS. Another lawyer from that firm advised the appeal board and another lawyer, Clearwater, advised the CA disciplinary board. RATIO: The lawyers were so closely connected that the advisors would give rise to a reasonable apprehension of bias. One firm should not represent all aspects of an administrative body. Waiver: If you are aware of the procedural irregularity or bias, you should object so that the tribunal can make the necessary changes. If you don’t say anything, you will have waived your procedural objection. The court says that is right to a point – if new evidence goes to the fore, it restarts the clock. Baker v Canada: There was a reasonable apprehension of bias because of the notes from officer Lorenz which showed his displeasure with Baker being in Canada. Even though he didn’t officially make the decision, the decision maker read the notes, and this is enough to create a reasonable apprehension of bias. PRE-JUDGMENT There will be a more flexible approach taken in relation to municipal councilors because they are supposed to hold opinions. They are simply required to keep an open mind to all issues. Old St. Boniface (SCR): This arises out of a redevelopment in Winnipeg where a developer wants to buy some municipal land and shut down a road for a time to help speed up development. A councilor spoke in favor of it. The court says that this is a quasi judicial act so that natural justice and fairness apply. Apprehension of bias applies and there was some here because of the views expressed by the councilors. This was overturned and went to the SCR. The SCR says that you have to be cognizant that municipal councilors are unique and natural justice and fairness will bend to operate in this setting. Councilors argue and state positions which make them different from other judicial settings. RATIO: Some pre-judgment on the part of council is both necessary and allowable. Bias will only exist when it is clear that the councilor has made up their mind irrevocably. Save Richmond Farmland Society v Richmond (SCR): A council member has not been biased unless they have made up their mind to the point that they were not amenable to persuasion or could be swayed by the hearing. Here a councilor said that he would listen to a hearing process. The court decided that these remarks show that he had not made up his mind and was still willing to make a decision. Law says this is thin because it allows for simple posturing to avoid any problems. Newfoundland Telephone v Newfoundland Telephone Commission: Wells is appointed to a tribunal for regulation of communications. He was a politician that thought that NFLD telephone people made way too much. The tribunal had to decide on the rates for the telephone lines which essentially determined what they would get paid. The rates reflect the wages of the senior management and their pensions. The board ruled that management could not get any wages.Was their pre-judgment? The SCR said that we have extended some pre-judgment to councils what about these commissions? The court said that a reasonable apprehension of bias will be enough to vitiate a judicial tribunal or a court. If there is policy, you are allowed pre-judgment as long as you haven’t completely made up your mind. The commission deals with policy, Wells was appointed as a consumer advocate, and there is a difference between the investigative stage and the adjudicative stage. If you do it during the investigative stage, you can have strong opinions and state them publicly. In the adjudicative stage, it reverts back to the reasonable apprehension of bias standard. PERSONAL ATTITUDINAL BIAS / PERSONAL HOSTILITYThese cases come where a transcript clearly shows that the decision maker has a bias or hostility towards one of the parties. It can also come because something you engaged or were involved in, would have you to have an attitude in favor of something. Re Gooliah v Minister of Citizenship and Immigration: An inquiry officer had decided cases in a like manner in the past and ruled for the department. The court concluded that this was an actual bias and that he directed his entire inquires to prove management correct. He was not involved in a search for truth but a justification of the position of one of the parties. Gale v Miracle Food Mart (1993 – ONSC): Gale is on the board of inquiry for a human rights case that involves a sexual assault allegation. She was heavily involved in feminism and was open about it. The court found a reasonable apprehension of bias because she was a complainant in another matter before the commission (she took herself off that). She was judging a matter in that was similar to one in which she was a party. Yusuf v Canada (Minister of Employment & Immigration) (FCA – 1992): The board was cross examining her in a way that was not trying to determine her views but to undermine her story. Law says that’s what the other side is for and not for the board. The tone was not judicious and went too far. Some of the language was deemed to be demeaning and sexist. The person was not looking for truth but to destroy someone’s point of view. Chapter 3: REMEDYING DEFECTS ON A RE-HEARINGThis is related to natural justice based on the idea that a tribunal can re-hear something and cure the defect in natural justice or fairness. Does a tribunal have the inherent jurisdiction to re-hear a matter? It NEVER has an inherent right to re-hear; that is reserved for the courts. It can be based on an explicit provision for allowing re-hearing or to vary or alter their decision. Where a statute gives the right to a re-hearing, even if couched in discretionary language, the tribunal has a duty to re-hear if they are asked. There is a common law exception that says that you can go back to a decision and correct small errors of a technical or clerical nature – “the slip rule”. Chandler v Alberta Association of Architects (1989 – SCR): There was a practice review group that was allowed to look at practices and make recommendations to the complaints committee but they went further than that and had their minds made up basically. They made suspensions that were effective immediately. This deals with res judicata – let the decision stand. It means that the matter between the parties has already been decided. Functus Officio: the general rule is that a final decision of a court cannot be reopened. Basis for this is that the power to rehear was transferred by the Judicature acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to 2 exceptions:1) Where there had been a slip in drawing up the decision, and2) Where there was an error in expressing the manifest intention of the courtDoes the same concept exist with administrative tribunals? Functus Officio applies to courts and admin tribunals equally to bring some finality to the proceedings. Its application will have to be less formal and more functional however particularly where the tribunal’s decision may only be appealed on very limited grounds and there may still be some jurisdiction to exercise. King v University of Saskatchewan: King was expelled and appeals through the whole university and all their appeals, some with counsel, some without, and finally goes the university senate and is denied. Now he is going through judicial review and claims that he was denied natural justice. The court said that he was given natural justice at the senate as he was given a de novo proceeding with counsel before the body that made the decision. This final stage cures the defects of any of the lower stages. This can be contrasted where the higher court does not have full power and cannot cure the defects at the lower levels. PART FOUR: Remedies for Illegal Action Chapter 1: Charter Remedies by Administrative TribunalsTetrault-Gadoury v Canada (Employment and Immigration Commission) (1991 – SCR):The SCR says that admin bodies can decide Charter issues and specifically held that tribunals must not apply provisions that they determine violate the Charter. They can do this if:The tribunal must have clear jurisdiction in its enabling statute“The board may decide any question of law or fact necessary to dispose of any appeal”The Board must meet the 3 part test set out in R v Mills:Tribunal has jurisdiction over the partiesTribunal must have jurisdiction over the subject matter of the proceedingsTribunal must have jurisdiction over the remedy soughtBut are tribunals “courts of competent jurisdiction” as defined in section 24? After the above decision, the SCR split on whether or not Administrative bodies should have Charter powers. In Weber v Quebec Hydro, Iacobucci said that tribunals don’t qualify because they are not bound by the law and stare decisis. This wouldn’t lead to a consistent application of the Charter. This line of thinking was later affirmed in Mooring v Canada.Cooper v Canadian Human Rights Commission (1996 – SCR): Lamer, in dissent, said that the law has to be changed because only courts can be entrusted to be independent when dealing with the constitution of Canada which the Charter is a part of. He also stated that the current method violated parliamentary sovereignty by inverting the relationship. Nova Scotia (WCB) v Martin & Laseur (2003 – SCR): Gontier says that tribunals can hear constitutional questions. The question is whether the empowering legislation implicitly or explicitly grants the tribunal the jurisdiction to interpret or decide any question of law. The courts can always review the decisions on a standard of correctness. R v Conway (2010 – SCR): The SCR says if the tribunal has the power to grant Charter remedies generally and it is not excluded by statute from doing so, they can grant Charter remedies to Charter issues when carrying out their statutory mandate. The tribunal must then decide if they can grant the particular remedy based on legislative intent. 2 things to have:Tribunals with the power to decide questions of law, and who are not statute barred from dealing with constitutional questions, have the authority to resolve constitutional questions that are linked to matters properly before themThey must act consistently with the Charter when exercising their statutory functionsChapter 2: Remedies Against Provincial Government AgenciesSTATUTORY APPEALSMarch 28REMEDIESadmin law is unique b/c wide range of remediessome specific (Habeus Corpus), some broad (certiorari)CHARTERs.52 supremacy - give courts power to issue declaration that law is contrary to the Charter is of no force/effects.24 - court of competency has ability to remedy a charter violation- allows courts to craft remedy which is just and appropriate in the circumstancesLaw’s comments: no one was thinking of tribunals when choosing the term “court of competent jurisdiction”. But tribunals are becoming equated to courts for purposes of s.24(1). But this is not to our advantage.s.52 is not a remedial clause, but some use it as suchremedies provided by admin tribunals gave been effected by chartersome uncertainty whether admin tribunals can provide Charter remedies?can the tribunal make the determination that a particular law violates the chartercan the tribunal declare that enabling leg. is of no force and effect b/c charter?The Charter obviously applies to Admin bodies as they are government delegatesCharter challenge re: legislationusually done though a courtCuddy Chickscertification of Union for agricultural workersON labour legislation prevented Union organization for ag. workersargued that this violates s.15 and s.2(association)LRB decided to declare that provision contra to the charter and then consider that certification application as if it weren’t there. Law’s comments: Let the tribunal attack it’s own enabling legislation?SCC: the statute granted power to interpret questions of fact and law to determine the issue before the board which means that they can interpret the Charter.good to have administrative interpret law in their area of expertise. (but the charter?)Tetrault-Gadouryat 65, decided to try to find a job and collect EI in the meantimebut the Employment and Immigration Commission says that they have a cap on EI at 65wanted to challenge on s.15appealed to board of referees, but SCC decided that this wasn’t competent jurisdiction to determine questions of law. Could have gone to the umpire (who is a retired judge)some boards can decide, but not this one b/c not granted power to decide questions of law.suggested that the only remedial powerMillsCourt of comp. test (check this!!):do you have jurisdiction over the remedy?do you have jurisdiction over the subject matter?do you have jurisdiction over the parties?Webercan labour arbitrator grant damages for char ter violation(Don’t even know extent of courts ability to do this!)ER hired PI to spy on EE to see if he was sick or just a malingerer. Saw him acting in a way suggesting he could return to work.EE wanted damages for violating his charter rights.SCC: majority said that it was good to have arbitrators deciding these thingsDissent: this goes to far, if it is the supreme law, better be supreme law as decided by the court. Mooring v Canada (National Parole Board)board excluded evidence maintained in violation of charterSCC: no jurisdiction over remedy to exclude. Only courts can hear s.24(2) why? often made up of lay persons. Not sophisticated in the law of exclusion and laws of evidenceCooper v CHRChuman rights challenge for mandatory retirement for pilotsCould have gone to court, but went to commission. SCC: Followed Cuddy Chicks, Tetrault-Godoury.Dissent: Lamer argues that have gone too far. Courts should have exclusive jurisdiction over challenges of legislation on the basis of the charter. Courts have the experience and expertise, can ensure that hearings are full enough to hear the issue completely. This undermines parliamentary democracy by allowingNova Scotia WCB v Martin & Laseurdoes tribunal have authority to decide if certain statutory provision violates s.15 based on disability - Categorical approach to compensation vs. individual assesment.SCC; does have jurisdiction to decide questions re: Charter. Can do so based on express authority or impliedly if the tribunal must deal with such questions in order to deal with the matters before it. citizen should be able to challenge directly in accessible form, laws which they think violate their Charter rights. and in the end the court will always be able to review these matters on a standard of correctnessConwaypersons in mental health facility have to have their institutionalization reviewed regularlythis person found not criminally responsible for sexual assaultwants absolute discharge b/c charter rights violated. Review could not grant absolute discharge b/c threat to public safety and could not decide on this Charter issueSCC: yes, the Cr.C. said could not grant the dicharge - no authority. And because no jurisdiction over remedy, not court of comp. jurisdiction under Mills test.ALSO revised the test.1. does the tribunal have the authority (express or implied) to rule on questions of law?2. has the legislature explicitly excluded the tribunals ability to deal with constitutional questions? (see p. 230-232 - In Alberta - decision maker has no authority to decide on constitutional law unless permitted in regulation. p.233 list of tribunals in Alberta and what they can decide)what does a body do if they don’t have jurisdiction? adjourn proceedings until it can be decided in court and then the tribunal follows the law from the court when decided.3. Has the tribunal the power to grant the particular remedy sought. Does the remedy fit within the statutory framework of the tribunal?Law’s Comments: this hasn’t changed Cuddy Chicks at all. Only allows the tribunal to do what is directed by the legislature.SummaryProper inquiry when a remedy sought from an Admin tribunal under s. 24(1):Can the tribunal grant Charter remedies generally? (Threshold question)Does the tribunal have jurisdiction, explicit or implied, to decide questions of law? If YES, then (b)Has the legislature excluded the Charter from the tribunal’s jurisdiction? If NO, then (2)Can the tribunal grant the particular remedy sought, given the relevant statutory scheme?The above inquiry replaced the three-part Mills test?APPEALSappeals are statutory. If no statutory right of appeal - no appealstructurally different from judicial review. Judicial review is an inherent supervisory jurisdiction of courts - but essentially the same issues will be decided in each case (not just jurisdiction and legality)But appeal can also include a review of the meritsno particular formula for rights of appeal.distinction between unqualified (legal, jurisdictional, factual, and meritorious issues) and restricted (just legal and jurisdictional questions - appeal on the record).Trends in case lawconstrued terms like “x may appeal to y” narrowly. Like appeal courts, appeal body looks to the legality and jurisdictional issues on appeal.appeal bodies will usually only interfere in limited circumstances - i.e. unreasonable decisions. do not want to interfere with expertise of tribunals.BUT - if the clause expressly give broad right to appeal on merits or speaks to appeal de novo, start all over and hear all the evidenceDudley - right to appeal on the merits gives right to full new trial before appeal body, giving new factual evidenceSSK investments - appeal from appeal board to court is an appeal de novo or appeal on the record? A right to appeal is only appeal on the record, unless expressly stated. There was no wording like “on the merits” “de novo” or “re-hearing” in this statute.Municipal Government Acttalks about process reviewing certain kinds of decision of Municipal bodiesprovides some sort of privative clause for review of bylaws - may not be challenged on the ground that it is unreasonables. 536 - May apply by originating notice (now known as “originating application”) to Court of QB for declaration of bylaw or resolution invalidity or to require an amendmentWhy not just go to the court, instead of under this legislation?Out of an excess of caution it was thought better to provide for statutory review of the bylaw - at one time there was doubt about the availability of legislation to strike down a bylawThis provides a remedy within the context of the legislations. 537 - 60 day time limit to challenge bylaws and resolutionsVery short timeframeShould not be able to come along and challenge a bylaw in which people have relied and administrative procedures have been set ups. 538 - May apply if there were procedural defects such as requiring a hearing or a public vote?s. 539 - Cannot challenge on the ground that it is unreasonableForm of privative clauseInterpreted to mean that you cannot challenge a bylaw on its meritsPrecludes attacks on merits of the decision, but can attack it on grounds of illegal discretion, etcs. 540 - Cannot challenge on basis of a councilor not being qualifiedAlberta Rules of Courtattempted to more clearly state rules of judicial review. Should know these provisions from Alberta Rules of CourtRule 3.8 (Originating applications and associated evidence) andRule 3.15 (Originating application for judicial review)Remedies available ((a) mandamus, prohibition, certiorari, quo warranto or habeus corpus; (b) declaration or injunction)All are important except Quo WarrantoCertiorari is VERY importantRule 3.17Obligation to serve application on Minister of Justice and AGand the person/body against whom the action is made.Rule 3.15(2)Six month window to file originating application for one of these remedies (30 days under Federal Court Act) (14 days for bringing constitutional challenge)Rule 3.24Court can set aside a decision or act instead of making a declarationHave tried to allow courts flexibility to order the appropriate remedyOthershave to serve affidavit 30 days before hearingDefinition of the “record”. does this include notes of the proceedings (not transcript), maybe not included b/c not reliable.stay (s.323) - cannot be granted if detrimental to public interest or ?s.324(3) - these remedies are discretionary in nature.Prerogative remedieslay in the discretion of the Crown.issued in the discretion of the court, but not provided as of right. i.e. might have the remedies, but the judge can still decide not to award in the circumstancesRules of Court in the 1980’s attempted to simplified the historic technicalities of prerogative remedy applications. Established a single form of proceeding for all the different types of remediesRules for Judicial reviewinitiate as an Originating Application - must contain the claim, grounds, remedy, evidence of support in Affidavit. Chambers applicationRemedies for Judicial Review were delegated from the kingremain the same even though they all have the same procedure now:Certiorariused as a royal request for information - directed to a public office holder for the record and if the court saw an error in law or want of jurisdiction, would quash the decision.correcting the malfunctioning of government in enforcement of the duty of fairnessbut cannot use certiorari when challenging legislative actMandamuscompelling officer/decision maker/board/tribunal to perform a public legal dutycan also result in compelling a body to conduct hearing in accordance with fairnessget Certiorari to quash than Mandamus to compel to do it legallyProhibitionorder by superior court to prohibit another body to enter into or continue its proceedingson the grounds that the body in question does not have jurisdictionhistory: used to restrict people from having issues heard in courts of Chancery.Habeus Corpusbring the body before the court for the purpose of determining the lawful authority to hold that person in custodyif no lawful authority or a defect, court would issue order that person be released from custody. Declaratory ordertwo purposes: declaration that public body has acted ultra vires OR declare someone’s rights with respect to a statutory scheme.eg. challenge a bylawInjunctionpermanent: restrains from doing something for all timeinterim: lasts for particular periodinterlocutory: interim injunction in the course of other proceedingsCan be in either prohibitory (restraining) or mandatory (compelling).stay:to suspend proceedings until others are throughthe rules governing interim injunctions are the same as those for staysDamages against admindifferent from all others because they are all quick, summary and all have the effect of restraining or compelling gov. actiondamages call for longer and involved processes with lots of evidence. Damages can result from action that is not illegal. how do we fit damages into judicial review? because sometimes they involve issues of illegality. ie. when an official acts beyond their authority or without natural justice, and t/f has no defence to a tort such as trespass.Telzone Case provides good discussion of damages in admin lawBefore recommending JR to clientconsider the prevailing view of the courts that deference will be preferredconsider alternate routesconsider expenseconsider practical effect. If success on JR will not get client what they want, don’t do itwhat court? FC (trial division) for all federal bodies (except for Habeus Corpus), QB for provincial bodiesQB of FC for damages action against federal bodywhat remedy? - you want the right fit for the challengewhat type of body, eg. can’t get an injunction against the Crownwhat type of action, eg. legislative action requires declarationdoes the applicant have standing? eg. have to be the person to whom the duty is owed for mandamusIs it in the public interest? - broad standing for injunctions and constitutional remediesis there a right of appeal to exhaust first?Northside: The handwritten notes were not part of the record – even though this has been vastly expanded – because notes only reflected the one board member’s view and not the entire case as it was set out before the tribunal. DOMESTIC TRIBUNAL/ORGANIZATIONSVancouver Canucks Hockey Club: Pat Quinn was the head coach at the time. Quinn didn’t have his option picked up on his contract in LA. He entered into a contract with Vancouver to coach them the next year. Bettman issues discipline sanctions against Quinn and the Canucks for this conflict of interest – Quinn suspended for rest of season and a per diem penalty, Canucks got fined a max fine. This was appealed to BoG; the members at the first hearings were not the same that were heard the subsequent ones. The decision of Bettman was upheld. ISSUE: Can this decision be exposed to judicial review?ANALYSIS: The courts say yes but it is limited. The parties made and agreed to the rules. The review would be just to make sure that all parties stay within the jurisdiction and boundaries of the agreed to rules. You could get a declaration from a court saying that they acted against the rules. The court will also make sure that people didn’t act in bad faith and natural justice and fairness are adhered to. The court will want you to take advantage of all the remedies provided in the private agreements. The court said the BoG hearing contravened natural justice but the parties had agreed to it. The court also found that Bettman contravened the rules by fining Quinn per diem as opposed to lump sum. This was an arbitrary exercise of power and he acted ultra vires. Chapter 3: REMEDIES AGAINST FEDERAL COURT/GOVERNMENT AGENCIESThe federal court is a section 101 court and therefore has no inherent powers and the act has to spell out what powers the court has. Remedies and grounds are set out in section 18. Carruthers: This involved therapeutic abortion clinics where committees would evaluate a woman’s health and mental state to determine if they could avoid being charged by the criminal provisions surrounding abortion. There was an argument that the committees were created by federal legislation but the courts said no, they are just recognized by them. The federal court was not granted that power by legislation. Toronto Dance Company: The company got funding from a federal source and it was decided that just because it received funding from a federal entity does not bring it under federal court jurisdiction. They are still an independent company and the Act does not contemplate them. Section 17 – Jurisdiction to grant review to the Crown for Tort/Contract Law BreachesThe provincial superior courts and federal courts have concurrent inherent jurisdiction. This means that you can bring the action before either of the courts for claims against the Crown.Section 18: Trial Division- Subject to 28, the federal court has exclusive original jurisdiction to grant relief against any federal court or tribunal. You have 30 days to bring your request but you can make an application for an extension before a federal court judge. They have the same powers as superior courts and the class grounds of review EXCEPT for habeus corpus. Section 28- Judicial Review from FCA: Normally you are appearing before more than a single judge – typically a panel of 3 but could be more. This is because the boards that they are judicially reviewing are complex and have more than 1 member so it would be better for a panel to hear the issues. This is for a major regulatory tribunal ONLY. R v Miller- Habeus Corpus: This is a means where you question the legality of person being held in custody. It is often accompanied with an application for certiorari in aid. This was used to get the record which would hopefully provide more information about defects in the holding. ISSUE: Can you use certiorari in aid against a body that is not judicial or quasi-judicial? Does the federal court act take away this remedy?ANALYSIS: The court said that there is a distinction between certiorari and certiorari in aid. CIA is an evidentiary assist to habeus corpus applications and can be brought. Telszone: The company applied for a license for telecommunications and it was rejected. The company wanted to sue the minister for the wrongful decision that cost them around 250 million. According to the Federal Court Act, the tort and contract claim would be brought in a FC trial division or provincial superior court. There was an argument that you first had to go to FC trial division and get an order quashing the minister’s decision and then and only then you could bring a damage action. To rule otherwise would overlook the exclusive and original jurisdiction of the FC to quash or set aside government decisions. Grenier had previously agreed with this.This means you would have to go to FC trial and get the quash order. Then, you could bring the damage action. If the FC decides that the action caused no damage but was ultra vires, your damage action is dead in the water. The court said no you can have valid actions that are tortuous and invalid actions that are non-tortuous. RATIO: The vires of a decision maker is a public law issue. The liability of them is a private law issue. Damage claims can be brought to either court. Quashing can only be done in the FC. Chapter 4: NATURE OF PREROGATIVE REMEDIESCertiorari: to set aside an quash a decision. It arises out of a 13th century writ – a demand for information. It is the primary remedy in an administrative setting. A broad general remedy for government decision making and applies to all rights, privileges, and general expectations of parties - Martineau. It does not lie against domestic tribunals and legislative functions. There is one major exception: when you pass a bylaw that determines a particular dispute or issue it is not immune from certiorari (less legislative). Prohibition: this is used to stop proceedings that you think are in the wrong court or shouldn’t be taking place. You can’t apply for prohibition until the tribunal has considered jurisdiction and ruled on it. Fairness: The above remedies used to be constrained to judicial settings. Fairness applies to all situations where statutory interpretation and application affects someone’s legal rights. Habeus Corpus: This is typically used when people are held before deportation. This is to bring the person before the court and show cause for the detention. There is a modern equivalent under the Rules of Court called application for discharge. You are looking for some illegal aspect to overturn the custody. Mandamus: This is to compel the performance of a public legal duty. It is to correct wrongful inaction. The concern is whether you have a public legal duty and whether or not there has been a failure of performance. It is a discretionary remedy and can be denied even when there are proper grounds. The remedy for failing to comply with mandamus is contempt of court – fine and rarely imprisonment. Taravos v Toronto and Gillies: This involves the granting of a permit to remodel a hotel. The commissioner of buildings believed the plans did not conform to city bylaws. You should have a clear legal right against the public official and it must be due. Look for wording that says must or shall2) It must not involve the exercise of discretionary powers to achieve a particular result. 3) There must be a demand and a refusal to perform. You can build a refusal from the circumstances if you have toThere was no duty because the application was incomplete. Therefore no duty arose and there is no possibility of there being a grant of mandamus. How does mandamus work when you are dealing with discretionary authority?Mandamus can be granted to force the decision maker to exercise their discretion. They are supposed to hear and determine the matter according to law. If they decide on irrelevant considerations, mandamus can compel them to consider relevant ones. Mandamus will not be used to compel a particular result however. EXCEPT where acting lawfully means that is the only result that can occur (Bailey v Town of Spruce Grove). Mandamus and the general duty to enforce the lawCan you compel the chief of police to arrest all speeders in Edmonton? Can you get them to fill all potholes?R v Police Commissioner, Ex Parte Blackburn: Blackburn was a busy body that tried to remedy all illegal government action. He wanted to compel the police to enforce regulations regarding gambling premises. Some weren’t enforced because it was uncertain whether they were enforceable and decided it wasn’t the best use of scarce police resources. RATIO: The court will not compel with mandamus a public body on how to best allocate their resources. There would have to be a general failure to uphold the public law. National Harbor Board: They were responsible for the administration of the Vancouver Harbor and they decided that they wouldn’t take action against vessels illegally moored there. This was because it was undecided and they were waiting for information from the city. Residents brought a mandamus action because it was blocking their view. The court agreed that mandamus should be granted because the board failed to enforce the laws concerning the management and administration surrounding the harbour. They had just done nothing with no justification. Distribution Canada v Minister of National Revenue: People were cross-border shopping and the minister decided that there would be no duty if the amount purchased was small enough. Canadian small businesses didn’t like this so they brought an application for mandamus. The minister said it was done because it costs more to enforce the law than they would gain from the duties and the purpose of the statute was revenue generation. The courts said this was reasonable; it was in accordance with the principles of the statute and was a proper use of discretion. Crown’s Immunity to Mandamus: This immunity can no longer be justification. Law says that they are relics of a past time. It does exist though. The test is: the nature and degree of control that the minister exercises. “Agents of the legislature” – boards – are not immune from mandamus. If it was the minister and not delegated powers, the Crown is still immune. Lee v Workers Compensation Board: He was getting paid old age pension and made a voluntary transfer of property. The Act said if that happens, you are not entitled to the old age pension. Lee said it wasn’t within the purpose and scope of the legislation because he transferred the property for a bona fide debt and not for profit. They were agents of the legislature and not the Crown, so Lee wins and the court awards a decision of mandamus. PRIVATE LAW REMEDIESDECLARATIONSA flexible remedy that declares what a person’s status is or rights are. It is usually accompanied by something else that has a coercive element. Often said to be harmless as it has no coercive effects. It is however generally expected that parties obey and follow the declarations. Dyson: The internal revenue agency said that every year he had to provide a valuation of his property. Dyson said no, you just don’t want to pay for the cost yourself and this is not authorized by statute. He applied for a declaration that they couldn’t compel him to provide this yearly property valuation. It was granted and now he has the advantage of res judicata. Lebar v Canada: Lebar is in jail and there was a certain way to calculate time served based on past cases. Lebar waited till his date and told the prison to let him out. They said that they don’t agree with the court case and hold him longer. When he gets out, he sues them for false imprisonment. He got 10 bucks a day for 430 but also 10k in exemplary damages. Primary Uses in Public LawImpugn Subordinate LegislationChallenge Legislation with CharterRight of Person to Hold Public Office (Baldwin)Tribunals may use them if they want direction from a courtStrike down conditions on propertyYou CANNOT ask hypothetical questions or when court declares tribunal ultra vires but can’t say what the decision should be because it has to be decided by the tribunal it came from. Look to the legislation for this. Standing- THIS IS DISCRETIONARY!!!As of right: A right of yours has been violatedPublic Interest: something that affects the public affects you in some specific wayPublic Interest Standing: justiciable for the court, no other way to bring the issue forward, you bring a unique perspectiveInterim Declaration: You can’t grant interim injunctions against the Crown so this remedy has been used to circumvent it. It would be a declaration that the person has a certain right or can act in a certain way or that the D can’t act in certain way until the case is ultimately decided (Wittal)INJUNCTIONSProhibitory: stop someone from acting in a certain manner – like prohibitionMandatory: compel a party to act in a certain manner – like mandamusThere were problems with the prerogative remedies and injunctions were more flexible so they were introduced in the legal system. They can be interlocutory or permanent. It can be attained ex parte. If you don’t comply with them, there could be penalties for contempt of court. StandingAs of Right: to stop an invasion of your rights or enforce your rightsPublic Law Right/Interest: point to some interference with your private right or special damages. Courts are liberal in awarding standing says Law. General Principles- American Cyanimid: One drug company said the other company was violating their patent and it caused irreparable harm, it was serious question, and the balance of convenience favored them. The three principles:Serious Issue: It cannot be vexatious or frivolous. This replaced the old standard of showing a strong prima facie caseIrreparable Harm: Will the applicant suffer harm that cannot be remedied by damages?Balance of Convenience: The court weighs whether or not the inconvenience to the P will be greater if the injunction is not granted vs. How much the D suffers if it is? The public interest is usually considered here in Canadian case law. On occasion, a P may be asked to make an undertaking to damages (interim injunction). In public law, you can get a stay on the public body’s decision until the case is decided. RJR McDonald v Canada: The Canadian government wants advertising requirements on tobacco. RJR said no we have freedom of speech. They wanted suspension of the new regulations until the constitutional challenge was decided. They applied for a stay - interim injunction. They said that there was a serious issue to be tried, would suffer irreparable harm from the new regulations, and said that the public interest favored the status quo until the issue was ruled. The SCC said it was serious and that it was irreparable harm because there was so much uncertainty created by how they would apply the constitution here. The court says that the BoC favors the legislation because it promotes public health. RATIO: In a suspension case as opposed to exemption case, the public interest will take an even more important place in the BoC test. Injunctions Against the Crown: The concern is that we should not be restraining the Crown and putting the Crown in conflict with its courts. How would we enforce the court’s orders against government? The problem about giving the Crown immunity is that the Crown is ill-defined and means that the scope could be too broad. Crown Proceedings Act DOES NOT extend their immunity beyond the common law – Crown agents exercising powers directly conferred upon them are NOT immune to injunctive relief. The Crown itself is immune. Canada v Saskatchewan Water Corp: The court says that it can sue and be sued. It can contract on its own behave and exercise its own powers. Therefore, it is a Crown agent and does not share in the Crown’s immunity from injunctive relief. AUPE v Alberta: The court concludes that the Crown is immune but you can get a declaration and the Crown can be counted to rely upon that remedy. Law thinks that AB courts fucked up and should have used the Saskatchewan way to get around the immunity. There is also a statement that says that Crown Proceedings Act does not apply to judicial review, just civil casesDAMAGESTo what extent can I get the government to pay for damages they cause me through their actions? What about through their inactions? The government is an attractive D because they have theoretically infinite pockets. Some people say that governments shouldn’t be held liable because it will discourage action but Law says there is no evidence and this is bullshit. Can the court judge the government’s actions? Is there a “reasonable government”? Some courts said that they are not able to pass on the reasonableness of this action – non-justiciable. Ex Gratia: This is normally what the government pays if they wrongfully convicted someone. Essentially, they are saying we aren’t admitting liability but here is some money. NOMINATE TORTThis includes trespass to the person, property, false arrest, etc. Even if the tort was committed, you would say that you have lawful authority as a defense. You are looking for:Conduct that constitutes a tortThere is no lawful authority authorizing the tortCooper v Wandsworth: He built the house without the license and the board said you didn’t have lawful authority and tears it down. Cooper sues for trespass to property and board says that they have lawful authority. The authority was there but the court said that the legislation needs to be done in accordance with fairness and natural justice. They didn’t give him notice or an opportunity to be heard so they are liable. Roncarelli: There was an immunity from liability for government officers. This can be vitiated when your motives are malice. You exercised powers in bad faith that you knew you didn’t possess, so you cannot share in the immunity. If you have statutory immunity and have acted in good faith and bona fide, you will not be held liable. ABUSE/MISFEASANCE OF PUBLIC OFFICEThe essence is that you have abused your statutory authority and acted will malice. Therefore, you haven’t acted lawfully and you will be liable for any damage caused. It operates in a limited range of grounds. Malice is the knowing exercise of statutory authority for improper purpose as per SCR in Roncarelli. Odhavji v Woodhouse: A Toronto man was killed by officers. An inquiry was done but the estate says that it wasn’t properly done because the officers didn’t provide blood samples and other materials in a timely fashion, delaying the investigation and did not remain segregated. The Ps say they had mental stress, anxiety, and anger from this. Historically, misfeasance was imposed when a public officer used authority that he knew he didn’t possess. Roncarelli broadened it to include intentional use of statutory authority for an improper purpose. Three Rivers: The bank of England regulated a securities company and lost money for the company and investors. Misfeasance was alleged. HoL says this exists in two forms:Targeted or Intentional Malice: official conduct designed to harm person or class Officer who knows they have no power to perform act and that it will harm the PIf you are acting in good faith and outside statutory authority (negligence), this tort doesn’t applyNEGLIGENCEA flexible action based on the existence and breach of a duty of care based on a standard of care. The breach of the duty of care leads to the loss or injury suffered by the P. There is only liability if you exercise a power and cause damage, NOT if you didn’t exercise the power due to your discretion. However, if you had a duty to act, then you would be liable for not acting. Anns: The foundation of a house crumbled and caved in a house. Person sues municipality. Does a prima facie duty of care exist: was it foreseeable = prima facieAny factors/policy that should limit the scope of the duty?Policy decisions are matters with high discretion and a multitude of different interests. Courts can’t judge this well so there is no liability. Operational the practical execution of a policy decision. We can judge if a duty of care was breached at this level. Most decisions are operational. Cooper v Hobart: The PC felt that negligence was expanding too much because liability was imposed based on only foreseeability basically. They change the test to:Foreseeability and Proximity – close direct relationship to warrant imposing a duty. Or it must be one of the already established areas. There should be representation and reliance. If a new area – consider policy reasons Overarching policy reasons about how it would affect legal relationships/enforcementLaw Society of Upper Canada: There was money defrauded through trust and the injured parties sue the law society for not regulating the trust accounts. They say that they regulate the accounts for the clients and you aren’t clients so there is no close and direct relationship. There was no representation or reliance and the statute was a public interest statute. Odhavji v Woodhouse: They say it was negligent for the police chief to not ensure that the impugned cops were regulated and carried out their duty. The court said that the psychiatric harm suffered by the Ps were hard to be foreseeable. There was a direct causal link between the conduct and the failed complaint – one of his duties is to ensure that his officers follow the applicable acts. They find a prima facie duty of care and no policy reasons to restrict it. CONSTITUTIONAL TORTSYou are seeking damages under section 24 of the constitution and for compensation that is just and appropriate based on the breach. This can arise under the Charter through section 2 and 7 typically. This has to be done through section 96 courts – superior courts. If against the federal government, you would bring it in federal court. First, you establish the Charter breach. You are asking if damages are an appropriate and just remedy under section 24. It should vindicate the rights of the claimant, be a judicial remedy that invokes the power of the court, and is it fair to the party it is made against. Compensation, Vindication, and Deterrence are your goals. Vancouver v Ward: You don’t want to punish government for good faith enforcement of legislation that is presumed to be constitutional. You will have to show that they knew it was illegal and that it was intended to or would reasonably cause harm. Law thinks we won’t see expanded liability under CTs. There is legislation that will limit the liability of municipalities to avoid negligence claims and such. It will typically state all inspection schemes and officers acting in good faith. Prete v Ontario: There is an argument that you can’t bring an action against the AG for wrongful conviction. He tries to hide behind crown immunity act and municipal act (says the time limit has lapsed). These statutory limits cannot stop a court from awarding a remedy under section 24 if it is just and appropriate. To the extent that the statutory immunities conflict with the Charter, they are of no force and effect. Chapter 6: LIMITATIONS ON REMEDIESLOCUS STANDIStanding of the PartiesThis is the legal status to seek the remedy or locus standi in Latin. It varies from remedy to remedy. It is a discretionary matter of the court and can expand or narrow the scope of judicial review. They have the discretion to add or strike parties based on the rules of court. Certorari: the person who is directly affected by the order or the decision has to bring the action for the remedy. Martineau however suggests that it has broad standing and person aggrieved should have a liberal understanding – rights, interest, legitimate expectations etc. It is used to correct all forms of government machinery BUT IT CANNOT challenge legislative decisions.Mandamus: An application is brought by the person to whom the public duty was owed. Hughes v Henderson: The application was brought to compel the municipal council to recover land sold. The applicant was not owed a duty and therefore could not compel the council to act. O’Callahan: He wanted to challenge a municipal council to hold a plebiscite on whether they are deserving of raises. The court says that he has standing because he was a taxpayer and the party affected by the raising of salaries were all taxpayers. He has an interest in the proper spending of city funds. Habeus Corpus: The applicant must be in actual physical custody. Declaration: The applicant has to establish that the decision affects your legal rights historically. The courts have now said that if public rights were affected and you were specially damaged you can now bring the application. Special damages are given a liberal interpretation. Appeals: They are creatures of the legislation so whoever has standing will be determined by the statute. You still have an opportunity to argue what the legislation permits and doesn’t permit. Ladies of the Sacred Heart v Armstrong’s Point Association: A party who is seeking judicial review or appeal must have some legal status. That means an ad hoc neighbourhood group won’t do it. You would have to make yourself a society or a corporation to get legal status. You could also have one person act in a representative capacity bring it on behalf of all. CUPE Local 30 v WMI Waste Management of Canada: Courts have been asked to interpret statutory terms liberally with a public interest component to the language. The language means directly affected, maybe you are affected in some way, but in order to have standing you must be DIRECTLY affected. The union was not in close proximity. STANDING OF THE TRIBUNAL IN JUDICIAL REVIEW APPLICATIONSA tribunal whose decision is being appealed has historically not had standing in the appeal because it puts the statutory body in an adversarily posture against the parties they are ruling on. Northwestern Utilities: The tribunal should be able to make statements on the record concerning their perspective and saying that they thought they had jurisdiction but that’s it. CAIMAW v Paccar of Canada: The argument was that we have a different standard from patent unreasonable to reasonableness. Why can’t the tribunal go before the appellate body and say they have jurisdiction and the decision was reasonable for these reasons. The courts have agreed to this because it helps the appellant body get a better sense of how the tribunal came to its decision. Leon’s Furniture v Alberta (Information and Privacy Commissioner): Leon’s would take down your personal information and when you picked up your furniture they would take down your license information. They collected them for consumer fraud – weak excuse says Law. What standing would the privacy commissioner have on review? If they were deciding an adjudicative matter that arises out of an adversarial proceeding, the NW rule should apply and they can only state things that were on the record. The privacy commissioner wore more hats than that so the standing rules have to be flexible and will change. He is seen more as a true party due to his investigative and admin powers – he was challenging Leon’s so he should be able to make submissions during a judicial review. Public Interest Standing: The worry was that if you didn’t allow this, some good challenges would never be brought before the court. There were a trilogy of cases that changed this. It is based on three concepts and is a DISCRETIONARY TEST:Justiciability: Is this something the court can decide? Without a major cost?Genuine Interest: does the applicant have a serious interest in the matter?No Other Way to be Brought: There must be access to challenge fundamental questions about the operation and validity of government actions.Minister of Finance of Canada v Finlay: There is no reason to restrict public interest standing to just constitutional issues. You can have this used in administrative settings too. It was a genuine interest, he had a special interest, and there was no way it was going to brought.Canadian Council of Churches v Canada: The limit is when there is a better person to bring the challenge. The court needs a factual basis to make this determination and it is based on the scarcity of judicial resources. There was a funding cut to helping immigrants and the church represented them and wanted to challenge. The court said an actual immigrant can bring this when they have a particular issue and be a real dispute without hypotheticals. JUDICIAL DISCRETIONMarton v Regina:ALTERNATIVE REMEDIESYou should exhaust all the other options at the lower level before bringing the issue before the court. You can skip the lower levels if there is no adequate alternative remedy (Matsqui). Courts are being asked not to grant certiorari when the legislature has created other rights of appeal. You appeal against the final place where your issue was heard. Fooks and Johnstone v Alberta Association of Architects: It is the exception to grant judicial review rather than require parties to exercise their right of appeal. Early case law said that there had to be special or exceptional circumstances. What are special or exceptional circumstances?Total absence of jurisdiction, really big irregularitiesThe later cases said that you had to bring different issues on certiorari – if they could be brought through appeal than that qualified as special and exceptional circumstances. Is it a hearing de novo that can cure the issues that you want to raise or isn’t it? Is the right of appeal effective? Is it adequate? The court must compare the two types of proceedings to determine if the party could have gotten it through appeal or though judicial review only. Two architects are being disciplined. They both testify but the other has to leave (natural justice problem). One was put on probation and the other for two years. There was a statutory right for those suspended and their appeal was pending. But both wanted to pursue judicial review. The court asked if it was adequate – looked at powers of the tribunal, its makeup, its remedies, its style of appeal (de novo or record), will the appeal be cheaper than judicial review. If the appeal is adequate, do special circumstances exist. The appeal here was on the record, only available to one party, and it would be cheaper to bring both the proceedings together. OTHER BASES: Waiver and Acquiesence, Laches, Misconduct of Applicant, Abuse of Process, Futility, and Technical Procedural DefectsLAUX – Planning Law and Practice in Alberta: There are no such things as waiver, acquiescence, or estoppel for an ultra vires tribunal decision. However, on judicial review, courts can say that someone waived their right to sufficient notice if they didn’t complain early on even if they agree it was a breach of fairness. Delay: The courts can also say that you caused an unreasonable delay by not bringing an application fast enough, typically when it would be detrimental to a third party to allow it. Bad Faith: The court can also deny a otherwise meritorious case because you acted in bad faith.This can also happen for abuse of process, res judicata, or futility of remedy. Defects in Form or Irregularities: This would occur in the tribunal’s remedy that was granted. The Rules of Court establishes that where the sole ground of relief established is a defect in from or a technical irregularity the reviewing court may refuse relief where it finds that no substantial wrong or miscarriage of justice has occurred. ................
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