Professional Documents
Culture Documents
When the courts are asked to review determination of questions of law, mixed law
and fact and fact made by the administrative decision makers what approach should
they bring to that task and what tests should they apply?
Initially the issue was dominated by jurisdictional approach admin bodies had
only as much authority as the legislature conferred on them, and courts reviewed
decisions to make sure that tribunals stayed within these boundaries.
Courts treatment of privative and preclusive clauses has always been controversial
because ignoring such clauses was perceived as undermining the authority of the law
makers.
There are important reasons for inserting privative clauses:
Court process is long and time is likely to be of the essence
Litigation is expansive and favors deep pockets (e.g. employers)
Admin bodies have often be created to keep the dispute out of courts, as
courts may not have a good track record of fair decisions in particular context
(e.g. human rights or anti-workers bias)
Courts authority to review for jurisdictional error was based on constitution, when
privative clauses were present, courts interpreted them as applicable only to questions
that had been remitted to the agency to decide, but they did not preclude the
possibility of court deciding whether the agency had the power to decide the issue.
In favour of judicial surveillance:
Admin bodies will tend to expand the reach of enabling legislation, at the expanse
of legal rights of those engaged in the regulated activity.
Against judicial scrutiny:
Courts and common law are no more neutral that admin agencies, and display
anti-regulation and pro- status quo bias.
Three approaches to the definition of jurisdictional review
Jurisdictional error (including a breach of duty of fairness) can be proved by
extrinsic evidence
Tribunal can only be estopped from proceeding before it rendered a decision if
the error relied on by the party seeking relief is one that would deprive the
agency of its jurisdiction.
At common law agency can participate as a party in judicial review of its
decision but only to the extent that the agencys jurisdiction is being impugned
The preliminary question doctrine:
o based on distinction between these questions of law that were within
the area of decision making authority and these that were either
preliminary or collateral to the exercise of agencys jurisdiction.
o No clear test ever devised and the doctrine lacked logical and policy
coherence
o With some level of judicial craft any issue could be presented as
preliminary or collateral.
Because of this value, we still allow review even with very strong and express privative
clause.
There will always be jurisdictional review. Inherent jurisdiction of the s. 96 courts
revolutionary judgment for admin law
CUPE v. NB Liquor Corp. 1979 SCC, CB 714
Facts: Local 963 was on lawful strike. During, they file complaint with the Public
Service Labour Relations Board New Brunswick. They allege management is replacing
workers with management employers. Management concedes this point. The dispute
was over one particular provision: s. 102(3) of the PSLRA-NB:
(a)the employer shall not replace the striking employees or fill their position with any
other employee
-Employer argues: with any other employee applies to both clauses, and therefore they
are allowed to replace with managers.
Board: Legislature wanted to prevent strikebreaking or picketing in public sector
workplaces. Could shut down availability of public services to Canadian citizens. Finds
in favour of union.
SCC: This question falls within the LB's jurisdiction. Not preliminary or collateral, but a
core question. The interpretation of s. 102(3) lies at the heart of the jurisdiction conferred
on the Board.
-One more argument: that the decision is so patently unreasonable, that it is
effectively outside the jurisdiction of the LB.
SCC: The ambiguity of the section is acknowledged. There isn't any one interpretation
which is correct. Must apply purposive approach. The intention is to balance power
between labour and management. Therefore the interpretation is not PU.
Revolutionary judgment: acknowledging ambiguity and interpretation goes to the Board.
Also, that one can only challenge if patently unreasonable.
Bibeault, 1988 SCC
-Don't interpret NB Liquor to mean that only a PU error can lead to an excess of
jurisdiction.
-The central question on substantive judicial is: did the legislature intend the question to
be within the jurisdiction conferred on the tribunal?
-The formal, jurisdictional approach is giving way to a pragmatic and functional
approach.
Pushpanathan, 1998 SCC, CB 790
Facts: P claimed refugee status in 1985, but his claim was never adjudicated because he
received permanent residence status shortly thereafter. Subsequently he was arrested and
convicted for narcotic offences. Renewed claim for refugee status to prevent deportation.
I.R.B.: P was not a refugee, according to Article 1 F(c): the provisions of the Refugee
convention do not apply to persons guilty of acts contrary to the purposes of the U.N.
Issue: Is it ?? that the IRB relied on Article 1 F(c) to deny P's refugee claim?
-In the usual case, however, the broader the propositions asserted, and the further the
implications of such decisions stray from the core expertise of the tribunal, the less
likelihood that deference will be shown.
1)CB 796 s. 67(1) Not a strong privative clause, limited right of appeal (only on leave to
TD, or on certified Q to the CA). (-)
2)no expertise above the courts. (down)
3)Purpose of 1(F) is to give minimal/basic human rights protection. Not to control flow
of people. (down). Characterize as a general question of international law.
4)question of general international law (down).
Standard: CORRECTNESS
CB 791. Judicial review through certification of a serious question of general
importance.
This case is the authority for the development of the four factors.
Pragmatic & functional approach
Pragmatic because it looks at what happens in the day-to-day work of tribunals,
not just the law.
Functional because it looks at whether the tribunal is fulfilling some legislative
purpose, (and not just some internal legislative elegance purpose).
Southam,
Concept of the SOR spectrum
Dr. Q, 2003 SCC CB 819
Note: SCC appeal prompted by an unclear statement by the BCCA, an opportunity to
clarify the law on SOR.
Facts: Trial judge set aside decision to suspend Dr. Q for misconduct. BCCA upheld trial
decision: b/c lower court decision was not clearly wrong.
Held:
This is a case of judicial review, and court must apply P&F approach. (Statutory appeal
not decisive.)
-P&F approach described: whether tribunal shall receive an exacting review,
significant searching and testing, or be left to the near exclusive determination of the
decision maker
-Not to be applied mechanically. Not empty ritual.
Statutory Scheme:
-PC or right of appeal
Expertise:
look at how it is composed, what their specializations are
whether tribunal is habitually called upon to determine the same types of questions
(institutional experience giving relative expertise)
Purpose of the Act:
look to preamble of the statute
look for clues about discretion, e.g. allowing board to consider all circumstances
Nature of the problem (CB 822):
almost entirely determinative of the SOR
need a palpably incorrect error to overturn a factual finding
WHEN IS THIS DETERMINATIVE? JR, or Appellate Review?????????
Another main holding: regardless of whether it is JR, or statutory right of appeal, one
need perform P&F approach???????
Law Society NB v. Ryan, 2003 SCC, CB PG???
Facts: Two people came to see Ryan to take their case. Ryan took a small cash retainer
and agreed represented them, but lied to them and didn't do anything for 5.5 years.
LSNB receives complaint. Sets up discipline committee. They recommend disbarment.
Statutory right of appeal to NBCA. CA orders reopening of hearing to hear medical and
psychiatric hearing. They reopen, and confirm the decision to disbar. Ryan goes back to
CA. They overturn the disbarment and downgrade it to an indefinite suspension with
conditions for reinstatement.
Issue: What is the appropriate SOR?
Held:
There are only three standards of review
P& F Factors:
o Statutory right of appeal, no privative clause
o Expertise: LSNB has relative expertise.
1.practicing lawyers are more experienced with working with
clients, and are better-suited to determine whether behaviour
crosses the line.
2.there is a member of the public (layperson) on the committee.
3.repeated application of the section on sanctions give them some
degree of expertise.
o Nature of the Act:
look at the preamble: Put together an authority to regulate practice
and set professional standards. (Adjudicative.)
o Nature of the question:
This is applying the law to a set of facts
Notwithstanding the fact that there is a SRA, all other factors point toward deference.
Standard is reasonableness. Court should not substitute its view, but recognized the
legislature intended a specialized body to have primary authority on the matter.
Re remedy: SRA allows judge to substitute decision.
Re the floating spectrum/SOR: there is no spectrum, only 3 standards.
Correctness Review
Trinity Western University, 2001 SCC
Facts: TWU, a private institution in BC, seeks recertification to teach an entire teacher
training program themselves (and to have their program reflect their Christian
worldview). BCCT refuses because it is contrary to the public interest to allow
discriminatory views to be disseminated. (TWU condemns homosexual behaviour.)
BCSC: It was not within jurisdiction of BCCT to consider these discriminatory
practices, and that there should not have been a finding of discrimination.
BCCA: BCCT does have jurisdiction, but that there was not sufficient evidence(?)
SCC: BCCT was wrong to reject the application 8:1.
Dissent: BCCT was not wrong.
Majority:
Jurisdiction question: yes it is within jurisdiction to look at whether there are
discriminatory practices. Correctness standard applies because the matter is
beyond their jurisdiction.
Was the finding of discrimination justified?
There was no evidence that graduate teachers would go on and be
discriminatory in the public school system.
Remedy: Writ of mandamus. Order to issue the certificate.
SOR Majority:
1.Privative clause-none
2.Expertise-regulated professional
3.Purpose of the act-human rights
4.Fact or law-Nature of the problem
Dissent:
SOR should be PU
no privative clause, but, expertise, polycentric, factual question.
-Mullen believes it all came down to relative expertise. The critical determination.
Others have argued the critical determination was on characterizing the issue. (This feeds
back into Mullen argument.)
-Mullen again, notwithstanding Pushpanathan, (which supposedly did away with the
jurisdictional question and advocated P&F A from the start) the jurisdictional question
lives: all members still ask jurisdictional question.
-Another criticism: the P&F A is too subjective, as court members ended up on opposite
sides of the spectrum.
Mossop, 1993 SCC CB 825
Facts: M was a government-employed translator. Took a day off to attend funeral of
father of same-sex partner. Collective agreement allowed days off for bereavement of
necessity of materials: they are supplemental, they do not need to be necessary. The
books promote tolerance, inclusion, and understanding of all family groups.
-Common law has long recognized that parents are in position to raise children, and that
school has delegated authority from parents as a proxy. Local school boards are elected
and serve on behalf of parents.
DS: look at Ryan, 2003, CB867. Sets out most usefully, issue of review on each of the
standards.
-Unless the party seeking review has shown the decision was unreasonable. A reasonable
decision is one that can stand up to a somewhat probing inquiry/analysis.
DS: look to the reasons of the tribunal! Try to connect those reasons and the evidence!
On correctness review, court must determine what feels it is correct (or not wrong).
Pushpanathan
stated the factors of the P&F approach
Re jurisdiction: you can label an issue jurisdictional???, but all this means is
you're taking a correctness approach under the P&F approach.
o This makes it seem that jurisdiction is unimportant. But now the SCC
says jurisdiction is one of the factors. Evans JA doesn't like this???
Baker
Why is Baker important? Because it applied to a discretionary and somewhat
informal decision of an immigration officer on behalf of the minister.
First time it was applied to such a discretionary, informal decision.
21st century
Dr. Q and Ryan
-applies to all statutory decision makers
-Also, only 3 standards
Ryan
-When conducting one of the reasonableness reviews (rs or pu), start with the reasons of
the tribunal!
-Maybe it is not the best course, but if it is reasonable, it must stand.
**The difference between rs and pu is difficult to tell! PU is a much tougher battle for an
applicant.
Easy cases on standard of review
-When reviewing DOF, no deference, SOR is fairness
-Evans J: SOR is fairness...correctness might second-guess jurisdiction.
-P&F is not relevant to fairness.
Constitutional issues
e.g. Martin v. WCBNS
-Applicant suffered serious pain as result of work-related injury. Board limited recovery
for pain. Applicant argued s. 15.
SOR: correctness!
-Also for quasi-constitutional questions, e.g. human rights.
Majority of SCC: do not segment the decision. Abella J.: do not separate the human
rights and transportation issues. CTA should bring understanding of transportation to
bear on the issue of complaint-based adjudication (??).
Minority of SCC: segment is ok.
National Corn Growers
Wilson: Don't break it apart. Look holistically.
LeBel in Toronto v. CUPE
-That there should be only two standards, correctness and reasonableness
Reasonableness: Was the decision demonstrably unreasonable?
Previously: arbitrators' interp of collective agreements, SOR was PU.
Recent, odd case: changed standard is RS --> (outrage in Lab. Rel. community)
Ont. C.A. (?) straightened it out. PU!
Alta. C.A. -time limit, 30 days for JR before final preclusive clause.
Ont. is right away preclusive.
Limits to the P&F Approach?
One other hard issue: P&F Approach applied to ALL ADMIN decision makers?
administrative decision makers What about a regulation? What about a by-law? Does
P&F apply to formulation of rules?
e.g. can we challenge by-laws using the P&F Approach?
Lastly: is there a way to make the law simpler?
-Judges to clarify the two reasonableness standards.
-OR, do what B.C. did in its major administrative law reform initiative. Administrative
Tribunals Act, ss. 58-9:
s. 58 deals with decisions of tribunals protected by preclusive clauses:
Expert tribunals ...in which it has exclusive jurisdiction under privative clause,
must not be interfered with unless PU.
Fairness or natural justice must be decided on standard of fairness.
All others = correctness (e.g. common law, another statute, constitution)
PU defined: arbitrary, bad faith, abuse discretion, irrelevant factors, failed to take
account of statutory factors.
s. 59 SOR to which ATA applies, that do not have preclusive clauses.
Correctness for all questions except:
There is a clear zone where the statutes overlap and come into conflict. Both provisions
apply to the officers conduct in the instant case.
One statute provides for an exception to the rule of dismissal but the other does not.
(CONFLICT)
In the case of conflict, s. 119 PA should prevail over s. 116(6) CTA. S. 119 satisfies the
Requirement of the presumptions developed to aid in determining the legislatures intent
that it both more recent and more specific in comparison to s. 116(6) of the CTA.
IT was unreasonable for the arbitrator to conclude that the specific circumstances raised
by the police office were sufficient to satisfy the s. 199 para. 2 exception. Burden of proof
was on police officer.
The arbitrator equated his jurisdiction under s. 119 para. 2 PA to the jurisdiction he would
normally enjoy under 100.12(f) of the labour code and failed to properly weight the effect
of the police officers criminal conduct on his ability to carry out his duties; this affected
the rationality of his decision.
Deschamps & Fish Conflict definition has been given a narrow interpretation. There is
no real conflict here, - A person who is qualified to serve in both capacities must meet the
conditions of both statutes.
-Arbitrator is not entitled to review an employers decision to terminate where
terminated individual is an officer who has been convicted of an indictable offence...
Per Abella J Only 1 STND of review applicable s. 100.12(a) gives arbitrator
authority to determine how any relevant statutory provision ought to apply to it
deferential stnd applies however, the arbitrators decision is unsustainable and the
sanction of dismissal should be restored.
Via Rail, 2007 SCC
SCC Abella J for majority STND of review applicable to Agencys decision as a
whole is PU. As opposed to CA stance of applying 2 standards of review 1 being its
jurisdiction (Correctness) and the other being its interpretation of undue obstacles (PU).
Reason for only 1 review Agency made decision w/many component parts, each of
which fell squarely and inextricably w/n its expertise & mandate.
Under Part V of the CTA the Agency must identify undue obstacles to persons
w/disabilities in the transportation context in a manner that is consistent w/the approach
to identifying & remedying discrimination in HR law.
Discriminatory barrier must be removed unless there is a bona fide justification for its
retention, which is proven by establishing that accommodation imposes undue hardship
on the service provider.
VIA did not meet its onus of establishing that the obstacles created by its purchase were
not undue
Rail Code was a proper factor for the Agency to consider in its analysis.
Agency also considered Vias network and found that none of the evidence on the record
supported VIAs position that its existing fleet or network would address the obstacles...
Cost estimates were sought after however VIA never provided an in depth account as to
what it would amount to, instead were requesting a decision from the Agency be given
after agency decision in their appeal they provided one in 37 days! It is also whether the
cost constitutes undue hardship Agency did not justify a finding of undue hardship
based on financial cost.
CA stated that their Procedural Fairness was breached There are NO grounds for a
reviewing court to interfere w/Agencys decision not to wait for VIA to produce cost
estimates that VIA had repeatedly and explicitly refused to provide.
DISSENT Agency is not protected by a privative clause in respect of questions of law
or jurisdiction, and since it involves matters of HR the STND of review is correctness.
PART V of CTA grants Agency jursidiciton to deal w/undue obstacles to the mobility of
person w/disabilities must be reconciled w/prevailing HR principles.
The Agency is reqd in adjudicating applications under s. 172, to conduct an undueness
analysis: 1) the applicant must satisfy the Agency of the existence of a prima facie
obstacle to the mobility of person w/disabilities 2) the burden then shifts to the carrier to
demonstrate on a balance of probabilities that the obstacle is not undue b/c :
It is rationally connected to a legitimate objective
Carrier has opted not to eliminate the obstacle based on an honest and good faith belief
that it was necessary for the fulfilment of that legitimate objective
Not eliminating the obstacle is reasonably necessary for the accomplishment of that
legitimate objective.
The Agency erred in the law with respect to this test:
Did not acknowledge that it was REQd to identify the goals pursued by VIA in
purchasing the cars; nor did it state whether it accepted VIAs argument and evidence that
the acquisition for the cars was rationally connected to a legitimate purpose.
Efficiency and economic viability are objectives of the National Transportation Policy
under s. 5 CTA and must be considered legitimate.
Practice Exam:
Three parts:
1.characterizing the decision
2.What is the SOR?
3.Did the tribunal meet the standard?
Cite Dr. Q for P&F approach for all statutory decision-makers (although that case
involved a statutory right of appeal).
Cite Ryan for 3 standards of review.
Cite Pushpanathan for 4 factors.
Privative clause: Cite section number for privative clause!
Expertise: Cite Ryan for repeated applications.
Purpose of the Act and the provision as particular:
-Dual purpose, protect workers while...
-Provision (s. 5) as a whole...complaint mechanism.
-NB Liquor v. CUPE: are they dealing with a question that goes to the
core purpose of the tribunal?
Nature of the Question: Go the findings of the tribunal. (Whether Cheng was
employer...whether there was reasonable opportunity give submissions.)
The Cheng question seems like a legal question. The reasonable opportunity
question seems mixed. This affects the expertise and overall analysis!!
Must start with analysis of SEGMENTATION!!
Two clearly definable questions that raise different concerns on the P&F
approach (Levis).
and (LeBel in CUPE v. Toronto).
If you DON'T want to segment:
cite Abella J. In Via. (One integrated standard, etc.)
Then: weighing all factors together...
APPLYING THE STANDARD
(Southam) are the reasons supportable by logic.
Regarding the finding of the timing and the reasonable opportunity:
-If you make employees wait until harvest is completely over to make
representations, fand by the way, they leave the country at that time...then the
purpose of the statute is completely destroyed (CUPE v. NB Liquor).
-Since the standard is reasonableness, one can still say: even though we would not
have come to this answer, it is nonetheless reasonable. There is a line of analysis
between the evidence and the conclusions.
New system: direct access. Complainants have direct access to the tribunal.
Old system: Commission would take claim to tribunal. Many people felt Commission
was more of an adversary than an advocate. They became insensitive to the policy
objectives of the HRA.
Theories of regulatory ...: dynamic has to do with worker strategies in the institution. e.g.
to cope with high workload and resource limitations, time constraints. etc.
Sossin: we must be suspicious of impact of SCC decisions on public decision-makers.
The responsibility must be given to the policy makers at the tribunal, by issuing
guidelines: (softlaw).