ADMINISTRATIVE LAW SUMMARY

Introduction....................................................................................................................................4
Activities of Entities; What Types of Relationships Between Individuals and State are
Encompassed in Admin Law?.........................................................................................4
Regulatory activities and individual interests:.............................................................5
Courts and Administrative Agencies...............................................................................6
Legislative Oversight of the Administrative Process......................................................7
Grounds of Review..........................................................................................................7
Substantive Review........................................................................................................................8
Privative Clauses & Constitutional Basis for Judicial Review........................................8
Privative Clauses (or Preclusive Clauses)...................................................................8
Crevier v. Quebec (Attorney General).........................................................................9
Constitutional Grounds................................................................................................9
Anisminic Ltd. v. Foreign Compensation Commission............................................10
Modern Standard of Review..........................................................................................10
New Brunswick v. CUPE [1979] 2 SCR 227 (NB)...................................................10
Bibeault [1988] 2 SCR 1048......................................................................................11
Canada (Attorney General) v. Mossop 1993.............................................................13
CUPE [1997] 1 SCR 793...........................................................................................14
Pezim [1994] 2 SCR 557 (BC)..................................................................................15
Canada (Director of Investigation and Research) v. Southam [1997] 1 SCR 748....16
Law Society of New Brunswick v. Ryan 2003 (SCC)..............................................20
The Pragmatic and Functional Approach......................................................................21
Baker [1999] 2 SCR 817 (Can).................................................................................21
Pushpanathan [1998] 1 SCR 982...............................................................................23
Discretionary Decisions.................................................................................................25
Roncarelli [1959] SCR 121 (Que).............................................................................25
Suresh v. Canada (Minister of Citizenship and Immigration) 2002 (SCC)...............27
Re Sheehan [1975] 52 DLR (3d) 728 (Ont CA)........................................................28
Nature of the Decision...................................................................................................28
Trinity Western University v. British Columbia College of Teachers [2001] 1 SCR
772.............................................................................................................................28
Dr. Q. v. College of Physicians and Surgeons of BC [2003] 1 SCR 226..................30
Levis (City) v. Fraternite des policiers de Levis Inc. 2007 (SCC)............................32
Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R.
650.............................................................................................................................33
Applying the Standard..................................................................................................................35
Less Deference (Correctness)........................................................................................35
Re Reddall and College of Nurses of Ontario [1981] (Ont. Div. Ct. & Ont CA).....35
ATCO Gas and Pipelines Ltd. v. Alberta [2006] 1 S.C.R. 140.................................36
Canada (Human Rights Commission) v. Canadian Airlines International 2006 (SCC)
...................................................................................................................................38
More Deference (Reasonableness & Patent Unreasonableness)...................................39
Reasonableness on Questions of Mixed law and Fact...............................................39
Reasonableness on Questions of Fact........................................................................39

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 PU On Questions Of Law..........................................................................................39
PU on Questions of Mixed Law and Fact..................................................................40
PU on Questions of Fact............................................................................................41
Toronto Board of Education [1997] 1 SCR 487 (Ont)..............................................41
Criticisms of the Standard of Review........................................................................41
Jurisdiction & Constitutional Challenges......................................................................................41
Cooper v. Canada (Human Rights Commission) [1996] 3 SCR 854........................42
Nova Scotia (worker’s Compensation Board) v. Martin [2003] 2 SCR....................45
Paul v. British Columbia (Forest Appeals Commission) (2003)...............................47
Tranchemontagne v. Ontario (Director, Disability Support Programme), [2006] 1
S.C.R. 513..................................................................................................................49
Multani v. Commission Scolaire Marguerite-Bourgeoys [2006] 1 S.C.R. 256.........50
Procedural Fairness.......................................................................................................................52
Common Law Background............................................................................................53
Cooper [1863] 143 ER 414 (Eng CP)........................................................................53
Ridge v Baldwin [1964] AC 40 (Eng HL).................................................................54
Re H.K (1867)...........................................................................................................54
Nicholson v. Haldimand-Norfolk (Regional Police Commissioners) [1979] 1 SCR 55
Martineau v. Matsqui Inmate Disciplinary Board (1980).........................................56
MNR v. Coopers & Lybrand [1979] 1 SCR 495.......................................................57
Cardinal [1985] 2 S.C.R. 643 (BC)...........................................................................58
Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653 (Sask)...............58
Legislative And Policy Decisions - Decisions Affecting Rights, Privileges or Interests
.......................................................................................................................................61
Canada (AG) v. Inuit Tapirisat of Canada [1980] 2 SCR..........................................61
Bezaire v. Windsor Roman Catholic Separate School Board (1992):.......................63
Canadian Association of Regulated Importers (CARI) v. Canada (AG) [1993] 3 FC
199 (TD), rev’d [1994] 2 FC 247 (CA).....................................................................63
Rights, Privileges or Interests’ of an Individual – Benefits...........................................65
Re Webb (1978) 93 DLR (3d) 187 (Ont CA)............................................................65
Non-Dispositive Decisions............................................................................................66
Re Abel (1979) 97 DLR (3d) 304 (Ont Div Ct); aff’d (1981) 119 DLR (3d) 101 (Ont
CA)............................................................................................................................67
Dairy Producers’ Co-operative Ltd. v. Saskatchewan (Human Rights Commission)
[1994] 4 WWR 90 (Sask QB)....................................................................................68
Irvine v. Canada (Restrictive trade practices commission) [1987] 1 SCR................69
Legitimate Expectations................................................................................................70
Re Canada Assistance Plan (1991)............................................................................71
Mount Sinai v. QB (Minister of Health and Social Services) (SCC 2001)...............72
Vietnamese Association of Toronto v. The City of Toronto (2007).........................74
Constitutional Dimensions.............................................................................................75
Authorson [2003] 2 SCR 40 (Can)............................................................................76
National Anti-Poverty Organization v. Canada (Attorney General) (“NAPO”)
[1990] FCA................................................................................................................77
Singh v. Canada (Minister of Employment and Immigration) [1985]......................78
Chiarelli v. Canada (Minister of Justice) [1992] 1 SCR............................................81
Deference to Procedural Rulings...................................................................................82

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 Council of Canadians with Disabilities v. VIA Rail Canada Inc [2007]...................82
Choice of Procedures....................................................................................................................83
Overview, General Statutes...........................................................................................83
Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817
(Can)..........................................................................................................................83
5 Factors for Content of Procedural Fairness..........................................................................85
Applying the 5 Factors of Procedural Content to Baker.............................................................86
5 Factors for Content of PF = Cases We Have Examined:......................................................87
Suresh [2002] 1 SCR 3 (Can)....................................................................................88
Statutory Powers Procedure Act, RSO 1990, c. S.22....................................................90
S. 4: Constitution of Panels on Tribunals;................................................................................91
S. 5 Parties to Tribunals.............................................................................................................92
S. 6 Notice of Hearing.................................................................................................................92
S. 9(1) Open Proceedings............................................................................................................92
S. 11; Right of Witness Right To Counsel.................................................................................92
S. 12 Power To Issue Summons.................................................................................................92
S. 14 Immunity for Witnesses....................................................................................................92
S. 17(1): General Obligation To Give Written Reasons For Final Decisions;........................92
S. 20: Obligation To Keep Record Of Proceeding....................................................................92
S. 25.01 and 25.1: Power To Make Orders/Rules Governing Its Practice And Procedure. . .92
Conflicts Between Rules.............................................................................................................93
Pre-Hearing Notice........................................................................................................94
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System
in Canada – Krever Commission) [1997] 3 SCR 440 (Can).....................................94
Ontario Hydro (1984)................................................................................................96
Disclosure of in-house Legal Advice............................................................................97
Pritchard [2004] 1 SCR 809......................................................................................97
Oral Hearings.................................................................................................................99
Masters (1994), 18 OR (3d) 551 (Div Ct).................................................................99
Procedural Fairness......................................................................................................101
National Security.........................................................................................................101
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007
SCC 9.......................................................................................................................101
Closed Hearings...........................................................................................................105
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher
Arar..........................................................................................................................105
Procedural Challenges:...............................................................................................................105
Arar Inquiry.............................................................................................................106
Giving of Reasons........................................................................................................108
Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC.................109
Via Rail Canada v. National Transportation Agency [2001] FCA..........................111
Congrégations des témoins de Jéhovah v Lafontaine [2004] 2 SCR 650 (Can).....114
Dunsmuir v. New Brunswick, 2008 SCC 9.............................................................116
Summary of Case Law in Dunsmuir...........................................................................124
Dunsmuir v. New Brunswick 2008 SCC 9................................................................................124
Ridge v. Baldwin (1963).............................................................................................................124
Nicholson (1979)........................................................................................................................125
CUPE (1979)..............................................................................................................................125

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Crevier (1981)............................................................................................................................126
Cardinal (1985)..........................................................................................................................126
Bibeault (1988)...........................................................................................................................126
Knight (1990).............................................................................................................................126
Mossop (1993)............................................................................................................................127
Southam (1997)..........................................................................................................................127
CUPE (2003)..............................................................................................................................128
Ryan (2003)................................................................................................................................128
Mullan.......................................................................................................................................129
Independence and Freedom From Bias.......................................................................................129
Brosseau v Alberta (securities commission) [1989] SCC.......................................129
Régie des permis d’alcool [1996] 3 SCR 919 (Que)...............................................130
Paine v. U of Toronto (1980) 115 DLR (3d) 461 (Ont Div Ct); rev’d (1981) 131
DLR (3d) (325) (CA)...............................................................................................131
Alex Couture Inc v. Canada AG (1991) QBCA......................................................132
Bell Canada v CTEA (Canadian telephone employees association) [2003] SCC 36
.................................................................................................................................133
Standing......................................................................................................................................136
Reasons Why for Broader Participatory Rights in Administrative Law and Judicial
Review OR Reasons Against.......................................................................................137
Finlay [1986] 2 SCR 607 (Can)...............................................................................137
Canadian Council of Churches v. Canada [1992] 1 SCR 236 (Can).......................139
Vriend v. Canada [1998] 1 SCR 493 (Alta)............................................................140
Harris v Canada [2000] FCA...................................................................................141
Walkerton Inquiry....................................................................................................142
Remedies....................................................................................................................................143
Administrative Remedies.............................................................................................143
Volker Stevin v. Northwest Territories (Commissioner) (1994), 113 DLR (4th) 639
(NWT CA)...............................................................................................................144
Harelkin v U of Regina [1979] SCC (Sask)............................................................146
SAAQ v. Cyr, 2008 SCC.........................................................................................146

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Introduction
Activities of Entities; What Types of Relationships Between Individuals and
State are Encompassed in Admin Law?

Employment: The employment relationship is extensively regulated through statutory programs

Regulated industries: Because the market has proved incapable of ensuring certain public goods,
the operation of some industries is subject to extensive statutory regulation; e.g. railway
companies; broadcasters require a licence; the exploitation of natural resources is heavily
regulated; fishing and logging industries; agricultural marketing schemes regulate what and how
much farmers grow; financial institutions (banks, trust companies and the insurance and
securities industries) are subject to statutory controls designed to safeguard the public interest

Economic Activities: The state regulates some important aspects of economic activity, regardless
of the particular industry or business in which it occurs, e.g. mergers and takeovers; Canadian
manufacturers are protected from unfair competition. All economic activity is subject to taxation,
imposed to raise revenue to provide public services and to redistribute wealth. The imposition
and level of taxation, as well as the exemption of certain activities, may also be designed to
achieve other regulatory goals: the discouragement of some business (e.g. a tax on tobacco to
discourage its use or favourable tax treatment to encourage industries such as film)

Professions and Trades: The members of most professions enjoy a statutory monopoly to render
the services associated with that profession (law and health care, for example) or to use a
particular professional designation (psychologist, for example). The rationales for this kind of
market intervention include consumers’ lack of knowledge and consequent inability either to
make an informed selection of an appropriate person to provide the service or to assess the
quality of the work performed.

Social Control: A number of public programs restrict individuals’ freedom of movement. Those
sentenced to imprisonment; public programs also provide for the incarceration of the mentally ill;
the Immigration Act regulates the admission to Canada of non-citizens and authorizes the
detention and removal of those who enter without permission or remain in breach of the
conditions imposed on their leave

Human Rights: A growing public awareness of the social dimensions of discrimination has made
the statutory schemes for the protection of human rights of increasing importance.

Income Support: The provision of income support has been an important aspect of the Canadian
state, e.g. injured workers’ compensation, employment-linked pensions and employment
insurance

Public Services: Government delivers, or pays for a wide range of services, e.g. health care, child
welfare, road construction and maintenance, public parks, fire services, police forces, garbage
collection, and some public transportation and broadcasting

Regulatory activities and individual interests:

 Activities; standard-setting; approvals and licensing; training and education; appointment of

public officers; service delivery; income support; dispute settlement; designation of legal
rights; income support; law enforcement ; punishment

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 Subject matter: urban and land use planning; environmental protection; employment
standards; trading of shares in public companies; customs and border control; immigration
and asylum; diplomacy; electricity; water; telecommunications and broadcasting; health
services; health and safety; roads and infrastructure; prison administration
 But administrative law is distinct from criminal law in that it does not involve the application of
penal sanctions, i.e. the deprivation of liberty
 Exception is use of security certificates; person can be imprisoned for long periods of time; to
reduce evidentiary burden upon State, legislatures have treated this form of imprisonment as
a form of administrative law rather than traditional criminal law form of imprisonment;
 Both developed in common law to serve as check against administrative branch of gov’t
 Criminal law however delivers ‘gold standard’ in terms of procedural fairness and provides
rights to individuals to know charge; be instruct counsel; to cross-examine witnesses; have
high evidentiary standards and burden of proof
 Admin law has procedural fairness but extent of rights to individuals varies quite widely;

Summary:
 Branch of public law alongside constitutional and criminal law; encompasses wide range of
gov’t activity and involving judicial review by courts

Concepts & debates

• perspectives on administrative law:
– a means to achieve democratic objectives in the collective interest?
– a means to check abuse of governmental power?

• concepts (A.V. Dicey)

– parliamentary sovereignty
– the rule of law

Courts and Administrative Agencies

Original Jurisdiction
 When the legislature has not established a mechanism specifically for the purpose, a person
may take her claim against the government directly to the court.
 This is possible when the administrative action in question infringes an individual’s private
legal rights by constituting a tort, breach of contract, or some other wrong for which an
award of damages may be made or specific relief (such as an injunction) granted

Appeals
 Rights of appeal are purely the creation of statute: courts have no inherent appellate
jurisdiction over administrative agencies
 There seems to be an emerging pattern that, in the absence of some strong reason to the
contrary, there should be a statutory right of appeal to a court from independent
administrative agencies with the power to make decisions restricting the exercise of an
individual’s common law rights (human rights tribunals, land use planning appeal tribunals,
vocational and professional licensing, for example) or refusing some significant social
security benefit
 The major exception occur in the regulation of labour relations and employment

Courts’ Inherent Judicial Review Jurisdiction

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  Even in the absence of a statutory right of appeal, the provincial superior courts exercise a
supervisory jurisdiction over the institutions and officials with responsibility for administering
our public programs
 Since 1970, the Federal Court of Canada has exercised virtually exclusive jurisdiction over
federal administrative agencies

Legislative Oversight of the Administrative Process

 Every province in Canada except Newfoundland has an officer of the legislature with the title
of ombudsman
1. The ombudsman is empowered to investigate action taken in the administration of a
government organization (which may include an independent agency) that affects
individuals
2. The ombudsman has the power to obtain information in connection with the
investigation, which is conducted in private
3. In order to set the investigative process in motion, the complainant merely has to file a
complaint; unlike those pursuing administrative appeals and redress through the courts,
complainants to the ombudsman bear none of the burden, financial and otherwise, of
seeking relief against the government
4. The ombudsman can consider a range of possible errors that may have been committed
in the course of delivering a public program, including that the administrative decision or
action in question was simply wrong
5. In the event that the ombudsman concludes that something has gone awry, the
organization will be asked to provide a remedy which could include a simple apology, the
revision of the agency’s operating procedures or the payment of compensation
6. If the recommendation is not acted on, the ombudsman may report the mater to the
relevant committee of the legislation. However, since the ombudsman’s conclusions are
not legally binding, any recommended remedy is ultimately enforceable only through
whatever political pressure can be exerted by the legislature and public opinion.

Grounds of Review

Four Principals Grounds of Review

1. Procedural Impropriety: Before taking action that may adversely affect the interests of
individuals, administrators are generally under a legal duty to act in a manner that is
procedurally fair. This typically requires them to give prior notice to those likely to be
affected and a reasonable opportunity to respond. Impartiality in the decision maker is
another attribute of procedural fairness
2. Illegality: There is a strong presumption that the legal powers of governmental
institutions are limited and that it is the function of the courts, as the branch of
government that is independent of the executive and legislature, to determine what
those limits are. Administrative action that is not authorized has no legal validity. For the
most part, the legal powers of concern to administrative law are statutory. This means
that the courts must determine the scope of the legal powers and duties of the agency
by interpreting the relevant legislation
3. Unreasonableness: The emergence of a legal duty on administrators not to exercise their
powers unreasonably has emerged relatively recently as a general principle of judicial
review. The principle has generated, or is derived from, some specific legal rules. For
example, there must be some evidence to support material findings of fact on which an
agency bases its decision. An administrative agency’s interpretation of its enabling
legislation must not be patently unreasonable. Unreasonableness is a ground of review
of the exercise of many of the discretionary powers conferred on public authorities.

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 Conversely, when administrative action infringes a Charter rights, it may be justified
under section 1 as a reasonable limit prescribed by law
4. Unconstitutionality: Two points about the relationship between administrative and
constitutional law
a. Regardless, of whether it is authorized by statute, administrative action may
always be impugned in court on the ground that it breaches either the division of
powers or the individual rights provisions of the Constitution
b. Both are branches of our public law and their concerns overlap; it is important,
therefore, that the standards imposed by constitutional law are informed by
previous experience with the problem at the level of administrative law:
balancing procedural fairness against administrative efficacy, for example.
Conversely, it is equally important that the non-constitutional legal standards to
which public administrative is held through legislation and the common law
reflect the constitutional values and principles emerging for Charter litigation in
all contexts: freedom of expression and the right to equality for instance

Substantive Review

Privative Clauses & Constitutional Basis for Judicial Review

Privative Clauses (or Preclusive Clauses)

 A statutory direction that the decisions of a particular tribunal are not to be questioned or
reviewed in any legal proceedings whatsoever, challenges the pervasive assumption that it is
ultimately the constitutional function of an independent judiciary to determine the rights of
individuals according to law
 In particular it is ultimately for the courts, not administrative agencies, whose members may
not be lawyers or who may be appointed for a relatively short term to interpret statutes and
apply them to the facts or the individual case and to ensure that administrative decisions are
made on the basis of a procedure that meets minimum standards of fairness

Reasons for Legislatures Using Preclusive Clauses in Legislation to Protect the Decisions of
Administrative Agencies (especially those regulating some aspect of labour relations)
1. The protracted delays that would inevitably accompany applications to the courts for
judicial review to seek a second opinion on the arbitrater’s interpretation of the collective
agreement would postpone the resolution of the grievance to the potential detriment of
the parties’ labour relations
2. The conduct of litigation through the courts is expensive
3. Administrative tribunals have been created for the very purpose of keeping the dispute
out of the courts, e.g. a specialist tribunal is generally preferred to a court as the forum
for resolving disputes because its members have an understanding of the subject matter
and an approach to issues that is informed by an understanding of workplace realities
and labour relations policy
 At one level there seems an obvious distinction between asking whether an agency has the
power to decide and whether it has exercised properly the decision making power that it has
 On closer examination, however, the distinction proves to be largely illusory
 To put the issue in more functional terms, the search has been for an analytical framework to
enable courts to distinguish those questions of law that it is appropriate to leave to the
administrative agency to decide conclusively, subject to a requirement of rationality, from

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 those that, despite the existence of a preclusive clause, a court should decide, in the event
that the tribunal’s answer is challenged
 Clause in a statute to oust jurisdiction of court to review decision of tribunal
 Sometimes a preclusive clause; precludes judicial review

Crevier v. Quebec (Attorney General)

There are limits (constitutional) that the courts will apply on the ability of provincial
legislatures to immunize their structure from review by superior court, especially from
review on jurisdictional grounds
Facts:
 Québec set up professions tribunal to hear discipline reviews
 Privative clause – says these decisions cannot be appealed to the courts
Analysis:
Laskin CJC:
 was the power exercised by superior courts at the time of confederation? Yes.
 is it a judicial power? Yes: ‘The [Tribunal] is not so much integrated into any
scheme as it is sitting on top of the various schemes and with an authority detached
from them....’
 has the power changed sufficiently in its institutional setting? No; however, the
scheme might have been saved had the statute preserved the courts’ supervisory
authority on questions of jurisdiction.
= unconstitutional
Ratio:
SCC - held this type of privative clause is invalid
 In principle s. 96 of the BNA authorizes supervision
 Privative clause sought to insulate tribunal from all review
 Judicial review of jurisdictional issues is constitutionally guaranteed
 No tribunal can be the arbiter of its own jurisdiction
 However, mere errors of law – may be protected by a privative clause
Crevier stands for the principle that there are limits (constitutional) that the courts will apply on
the ability of provincial legislatures to immunize their structure from review by superior court,
especially from review on jurisdictional grounds
Narrow Point: a provincial legislature may not protect from review on jurisdictional grounds the
decision of a provincially created appellate tribunal, even though its jurisdiction is not confined to
errors of law committed by the tribunal in the first instance.
Dicey Perspective – legislatures would delegate wide-ranging powers to the administration and
then they would be exercised without any control by the legislature – he was very concerned
about discretion – he saw the court’s role as vital to review the actions of the admin bodies –
privative clause in this case said clearly that the legislature did not want the courts involved –
that’s what privative clauses do
Hogg writing reproduced in decision – legislatures should be allowed to do this, not troubled by
Dicey’s concerns

Constitutional Grounds

 Federalism argument that applies to provincial legislatures; limits prov. Leg. As to how much
they can oust judicial review of decisions of prov tribunals
 There is no division of powers expressly stated in constitution
 Acknowledge that s. 92 gives to prov. Administration of justice but s. 96-99 lay out provisions
regulating superior courts

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 Judges of superior court are appointed by federal cabinet; power is to federal gov’t to appoint
even though courts are in prov
 If province creates a new statutory tribunal; courts say there is a scope for setting up new
adjudicative bodies but they CAN’T supplant power of superior courts; can’t take away power
of federal cabinet to appoint judges
 Can’t give prov tribunals power that is part of federal parliament and superior courts

Three Step Analysis By Courts to Review Role of Provincial Adjudicative Body and Whether It is
Constitutional

1. Ask a historical question: is this power that prov. Tribunal is exercising coincide that
courts had power over in 1867
2. Is this power a judicial power as opposed to an administrative or legislative power;
judicial power is resolution of dispute between two or more bodies through a recognized
application of rules/law and must be resolved through fairness of procedure that
underlies courts
3. Has this power, although judicial in nature, is this power something that has evolved
since 1867 and is this adjudicative role now treated as acceptable as part of wider
regulatory function of this tribunal; if tribunal has power to investigate complaints, etc.
might be indication of changes in setting that allow prov. Tribunals to exercise power
alongside that of courts today

Anisminic Ltd. v. Foreign Compensation Commission

 As part of the expansion of judicial review of administrative action that occurred in England
in the late 1960s, the House of Lords abandoned the preliminary question approach to
defining those questions of law that remained subject to judicial review, despite an
apparently clear direction from the legislature that the tribunal’s decisions were final and
not be questioned in any legal proceedings whatsoever
 It was held in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147
(Eng. HL) that the decision of an administrative tribunal could be set aside as being outside
its jurisdiction if, in the course of making the decision:
1.  the tribunal had asked itself  the “wrong question”
2. taken into consideration legally irrelevant factors, or;
3.  ignored factors that it was legally required to consider
 The House of Lords reversed the Court of Appeal, which, applying the more traditional
“preliminary question” doctrine had held that the interpretation of the disputed provision in
the tribunal’s enabling legislation was part of the “merits” of the decision and thus within
its jurisdiction
 It was widely recognized that Anisminic expanded the scope of judicial review for
jurisdictional error
 However, whether it was totally eliminated the distinction between questions of law that a
tribunal was authorized to decide conclusively and those that defined the extent to its
decision-making powers is not entirely clear.

Modern Standard of Review

New Brunswick v. CUPE [1979] 2 SCR 227 (NB)

PU not Prelim Q; deference where strong privative clause; don’t confuse Q of law
w/jurisdictional Q

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Facts: During lawful strike, CUPE laid complaint w/ Public Service Labour Relations Board of
NB pursuant to Public Service Labour Relations Act. CUPE complained NB Liquor Corp,
employer of the union members, was replacing striking employees w/ mgnt personnel. Employer
denied complaint and counter-complained against the Union, alleged picketing in violation of the
Act. The labour relations board upheld both sides.
NB Labour Relations Act:102(3) ... employers may strike and during the continuance of the strike
(a) the employer shall not replace the striking employees or fill their position with any other
employee, and (b) no employee shall picket, parade or in any manner demonstrate in or near any
place of business of the employer.’

- s.102(3)(a) is very badly drafted and is ambiguous; Corp argued that “employee” did not
include manager
- Board ordered employer order mgmt not to use personnel to do work normally done by
striking workers
- Note priv. clause: s.101(1) Except as provided in this Act, every order, award, direction,
decision, declaration, or ruling of Board, Arbitration Tribunal or adjudicator is final and shall
not be questioned or reviewed in any court
I: Was this within LB’s jurisdiction? If so, was the decision so unreasonable that legislation
would have never intended to give them jurisdiction to make a decision in this way?

The NB CA takes the view that it had power to sub own view for labour relations board on a
standard of review, under preliminary Q’s doctrine. It also thought labour board was wrong, and
that they could use management to sub. for own employees
SCC, Held: Mgmt excluded from provisions. Board’s decision upheld; LRB has exclusive
jurisdiction on this issue, and court will only intervene if the decision of tribunal is patently
unreasonable. Issue doesn’t touch on jurisdiction, and decision not PU.
(Recall Crevier: Priv. clause does not preclude review for jurisdiction. Ct review if jurisdiction is
at issue.) Dickson’s judgment shifts away from formalist and toward rationality of an agency’s
own reading of its enabling statute. Rejecting preliminary questions approach, he looks at 3
factors (here, reasons to defer):
1. expertise of tribunals and whether question in issue is about their expertise: Question
precisely w/in Board’s expertise. Parties weren’t disputing jurisdiction of Board b/c agreed it
was correct place to consider stat interp
2. privative clause, as indicative of legsl, intent: “final and shall not be questioned or
reviewed in any court” (except jurisdictional review),
3. what is matter in dispute and what is purpose of whole statutory regime: regime set up
for speedy resolution of labour disputes. Clause tries to force labour relations dispute into
domain of LR board

 the court should be more careful not to characterise qs of law as q’s of jurisdiction
 whether the legal question was jurisdictional or ‘preliminary’ is not determinative
 statutory language may have more than one meaning. It was not possible to say that there
was only one reasonable interpretation of statute; 102(3) a. was unclear, and it might not
be role of court to decide which was better interpretation. In light of expertise of board,
the court should defer to its interpretation
 Ask whether it was patently unreasonable, such that it required review on standard of
correctness.
CUPE sets the patent unreasonableness standard where there is a full privative clause.

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Bibeault [1988] 2 SCR 1048
Establishing the modern standard of judical review – the f & p approach – puts to bed the
‘preliminary question’ doctrine
Facts:
 School board called for tenders after terminating contract with a cleaning company whose
employees were on a lawful strike and therefore not cleaning the schools
 Union for striking employees argued that the new company was a “successor-employer” and
bound by the terms of the collective agreement b/t (between) the union and the original
contractor
 Union further argued that this meant it represented the new employees and who were therefore
on strike
 An application by another union to be certified as the sole bargaining agent for the new
employees should be rejected
Issues:
1. Whether the Quebec Labour Commissioner and, on appeal, the Labour Court, had acted in
excess of jurisdiction by holding that the “successor-employer” provisions of the Quebec
Labour Code, s. 45, applied to a company that had successfully tendered for a contract to
provide janitorial services to schools
2. If the decision of the labour commissioner and Labour Court is in error is it subject to judicial
review?
Analysis: Beetz J.
 Applies the standard of correctness
 Two circumstances in which an administrative tribunal will exceed its jurisdiction
because of error:
i. If the question of law at issue is within the tribunal’s jurisdiction, it will only exceed its
jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to
answer a question may make errors in so doing without being subject to judicial review;
ii. If however the question at issue concerns a legislative provision limiting the tribunal’s
powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial
review (Correctness Standard)
 Beetz J. rejects the concept of a preliminary or collateral question; the only question to be
asked is:
Did the legislator intend the question to be within the jurisdiction conferred on the
tribunal?
 Pragmatic and Functional Analysis
i. Court determines the jurisdiction of the tribunal;
1. It examines the wording of the enabling legislation;
2. Purpose of the statute creating the tribunal;
3. Reason for its existence
4. Area of expertise of its members
5. Nature of the problem before the tribunal
 Advantages of the Pragmatic and Functional Approach (as per Beetz)
i. P&F analysis focuses the Court’s inquiry directly on the intent of the legislator rather
than on interpretation of an isolated provision; this is important when the court is
intervening in decisions of tribunals such as the Labour Court
ii. P&F analysis is better suited to the concept of jurisdiction and the consequences that flow
from a grant of powers; jurisdiction stricto sensu is defined as the power to decide and
the importance of a grant of jurisdiction is not just the tribunal’s capacity or duty to
decide a question but to the determining effect of its decision; a superior court must not

12
 limit its inquiry to identifying the questions to be dealt with by the tribunal rather the true
problem of judicial review is to discover whether the legislator intended the tribunal’s
decision on these matters to be binding on the parties to the dispute, subject to the right
of appeal
iii. P&F analysis puts renewed emphasis on the superintending and reforming function of the
superior courts; when an AT (administrative tribunal) exceeds its jurisdiction the
illegality of the act is a serious as if it had acted in bad faith or ignored the rules of natural
justice; the role of the superior court in maintaining the rule of law is so important that it
is given constitutional protection (see Crevier) BUT judicial review should not be
exercised unnecessarily or this remedy will lose its meaning
 Dickson J, recongnizes that courts were not providing sufficient deference to expert
level of the admin decision making process
Held:
 Labour tribunals do not have jurisdiction to conclusively decide whether there had been “an
alienation or operation by another of an undertaking” i.e., labour tribunal did not have the
jurisdiction to decide the question at issue
Dissent:
 No dissent noted
VH Comments:
 He pointed to IAM Lodge 692 v. BC (1993) and the decision of Lambert JA for his definition
of P&F
 The pragmatic and functional approach requires the courts to rise about technicalities of all
kinds, particularly legal and drafting technicalities, and to respond to the fundamental issues
of democratic government, in particular, the paramount authority of Parliament and
legislatures to confer ample jurisdiction on experienced people in statutory tribunals to
regulate particularly difficult social interactions, and the obligation of the courts to check
arbitrary acts against the individual or group beyond what Parliament and legislatures must
be taken to have conceived
Context:
 This case introduces the term “Pragmatic and Functional” approach
 It puts to bed the “preliminary question” doctrine

A Preliminary or Collateral Question

 The idea of a the preliminary or collateral question is based on the principle that the
jurisdiction conferred on administrative tribunals and other bodies created by statute is
limited and that such a tribunal cannot by a misinterpretation of an enactment assume a
power not given to it by the legislator
 The theory of the preliminary or collateral question does not appear to recognize that the
legislator may intend to give an administrative tribunal, expressly or by implication, the
power to determine whether certain conditions of law or fact placed on the exercise of its
power do exist.

Canada (Attorney General) v. Mossop 1993

Facts:
Mossop was a federal civil servant who applied for bereavement leave to attend the funeral of his
same sex partner’s father. He was denied the paid day off because the collective agreement
defines spouse as a member of the opposite sex. He complained to the Canadian Human Rights
Commission that this constituted discrimination on the grounds of family status. The CHRC
ordered that he be paid for the day, and the collective agreement be modified.
Issue: What is the standard of review in HRA case in interpreting its own statute?

13
Analysis:
The Federal Human Rights Act has no privative clause. It was argued that the expertise there
requires deference to their interpretation of their enabling statute. Absence of a privative clause
led Fed Ct of App to apply a correctness standard. Fed Ct of App: decision interpreting ‘family
status’ was a question of law reviewable on correctness basis and the Tribunal got it wrong.

SCC: what’s the standard of review for the CHRC interpreting a question of law that arises
within their own statute? Lamer (for the majority):
-not only was there no privative clause, there was the opposite: a statutory right of appeal
-definitely a question of law
-even without a privative clause, we’re moving toward curial deference with specialized
tribunals interpreting their own act. Thus, the absence of a privative clause is not
determinative. Expertise may still curry deference.

Ratio:
At the SCC, 6 found the standard was correctness, of which 4 said the decision was wrong and 2
said it was right. L’H-D said the said the standard was patent unreasonableness and the CHRC
made the right decision (4-3 decision overturned).
Potential Policy
Dissent (L’H-D)[Prof says this is most important part of case]: The advantages of deference
include economic efficiency, expediency, and the encouragement of expertise. The drawback is
that not all tribunals are equally specialized. We have to vary the level of deference to the
context, though we will always be able to review for jurisdictional error. Also, no decision on
any matter by anyone that is patently unreasonable will ever survive judicial review. The
question is, are there any things which get low deference, the correctness review?
 If the tribunals powers are extensive, that will be a hint to defer
 Issues squarely within the specialized expertise won’t be interfered with – expertise
as appointed or developed
 If there is high policy content, we should defer
 Any constitutional question will be reviewed for correctness
 Any jurisdiction question will be reviewed for correctness

Comment: Even now the courts are less likely to defer to HR tribunals, partly because HR
decisions go to the core of the values of the society, have an impact on Canadian values and the
courts have more expertise than the tribunals.

CUPE [1997] 1 SCR 793

 Affirms the original CUPE decision (1979: jurisdictional question), clarifies that the P&F
approach applies to tribunals in determining appropriate remedy. P&F approach is
expanded; CUPE 1979 a jurisdictional question is examined; here we see decisions on
appropriate remedy falling under this umbrella, that is P&F approach
Facts:
o Provisions of Quebec Labour Code governing strikes provides for a specialized council
(Essential Services Council) to regulate public service strikes.
o Council has a mandate to ensure that the health and safety of the public is not put at risk b/c
of strikes.
o Council is a permanent body.
o Que Labour Code contains strong privative clause.
o On a holiday weekend, workers refuse to work overtime and council orders them back to
work; CUPE applies for judicial review of that remedial order by the counsel.

14
Decision:
o LHD (for the Court): Court should show deference.
o Rooted in the specialization required in extending the rights to bargain collectively and to
strike to employees in public services.
o The government must balance the right to strike against other entitlements and needs.
o Remedial decisions by administrative agencies are not automatically questions of jurisdiction,
they are entitled to deference; the appropriate standard or review here is not correctness, but
patent unreasonableness
o This is a highly specialized Council = >legislative intent.
o In the presence of a strongly worded privative clause, where the factual and legal aspects of a
problem…place the question squarely within [a tribunal’s] sphere of expertise, this Court
has consistently found that the tribunal’s decision will stand unless it is patently
unreasonable.

Pezim [1994] 2 SCR 557 (BC)

Affirms P & F, moves toward 3rd ctgry of review, specialization of commission justifies
deference in Q of law (stat. interp.)(expertise securities commission)
Also guidance on what constitutes a q of law
Case solidifies P&F approach; moves towards 3rd standard of review; also uses language of
“spectrum” of standards; specialization of securities commissions that this decision goes to heart of
specialization; complex area of regulation and how important it is for Commission to have wide
discretion where it sees violations; however also goes against rule of law and Dicey

Facts: (P was CEO of Prime, which managed Calpine resources, publicly traded on Vancouver
stock x-change, and subject to requirement of timely disclosure and prohibition against insider
trading. Calpine thought they’d struck gold/silver based on drilling results. Before they became
public there were a number of suspicious share transactions-- Co. had set up Chinese wall, so no
breach of insider trading part of act.)
BC Securities Commission found P and others failed to make timely disclosure wrt certain
transactions as required by Securities Act. Commission suspended them from trading in shares for
1 yr and ordered them to pay costs. P exercised right to appeal to Court of Appeal. They argued
that commission erred in law in its interpretation of phrase “material change” in affairs of a
reporting issuer of shares.
Material change: constitutes change in business, operation, ownership of co.
 Commission has to broadly define material change to include duty on officers to disclose
ASAP.
 Justification for its flexible interpretation of its own statute—jurisdiction extends to
circumstances in which no law or policy applies; people who trade in securities can
always find loopholes in whatever policy/laws are written; t/f there can be sanctions, even
where there’s no law.
 Dicey would be turning in grave; private individuals have to know what the law is to
plan their action accordingly; you can’t apply law retroactively
BCCA: overturned commission on correctness standard. Material changes don’t apply to drilling
results—that’s a material fact
Issue at SC: What is appropriate standard of review for an appellate ct reviewing decision of
securities commission not protected by priv clause when there is stat right of appeal and where
case turns on question of interpretation?
Held: Taking P&F approach finds Commission’s interpretation should stand. Applies a
reasonableness/middling standard, adding an element of deference

15
Iacobucci: Should have been deference to commission; need for considerable deference given
the complexities of securities regulation, the expertise of the Commission, and fact that the
decision went to the core of its mandate. Security commission has as its goal . . . assurance of
public; it requires expertise; its goal is to regulate. It may not be obvious to people who trade in
shares what definition of material change means. Rather than focus on the retro-active problem,
says ON commission good b/c of early warning system,
Spectrum of standards: Affirms pragmatic and functional approach, and moves toward 3 rd
category of review—rather than PU or C, standard of considerable deference (in subsequent
cases, reasonableness standard)
In determining standard of review, have to determine: 1) Legislative intent in conferring
jurisdiction on the administrative tribunal. Is there basis to defer/not interfere?; 2) Role/function
tribunal; 3) Privative clause; 4) Whether jurisdictional Q, or Q of law/fact/mixed
Application:
Re reading of statute/legislative intent:
Focus on statute’s purpose, rather than its provision that lays out right of appeal
Reveals legislative intent to give broad discretion to commission to decide matters in favour of
public.
Role of tribunal
Specialization of committee, and broad powers of investigation and audit
commission has broad discretion in its regulation and given extensive role in policy
making,
Is it a Q of Law, fact, or mixed?
Definition of material change was Q of law, but it went to the core of the mandate of the
commission in light of its expertise and regulatory role.
Makes sense that commission should have wide power to intervene where it seems bad dealings—
on other hand, Dicey and rule of law being whittled away
New: deference not only to facts, but workings of law due to tribunal’s expertise. More
tribunal expertise = more court deference = less review for correctness in statutory interpretation.
Two extremes: Commission here is expert vs. human rights legislation at ‘correctness’ end of
the spectrum (courts consider themselves experts in HR due to Charter relation)

Canada (Director of Investigation and Research) v. Southam [1997] 1 SCR 748

Case creates new “middle ground” standard of reasonableness simpliciter or
unreasonableness

Facts:
 Southam owned two newspapers in Vancouver area; there was also a string of community
papers; Southam dailies weren’t doing well against community papers
 Community papers served a smaller area, were free and printed 1-3 times a week
 Southam then obtained a controlling interest in 13 community newspapers
 Respondent applied for an order requiring Southam to divest itself of several papers alleging
that the concentration was lessening advertising competition
 Were papers all part of a single market?
Judicial History:
 Competition Tribunal (CT) order Southam to divest itself of one of two papers
 CT considered whether community and daily papers served same advertising market;
advertisers saw them as different markets and CT agreed

16
 Director of Investigation appealed CT’s decision on merits; Southam appealed CT’s decision
on the remedy
 FCA holds that CT failed to consider evidence that owners saw themselves as being in
competition; CT said owners were not in competition, papers not part of single market
 Federal Court of Appeal (FCA) overturned CT’s delineation of the relevant market and its
weighting of relevant factors and substituted its own decision
Issues:
 1. Whether the FCA erred in concluding that it owed no deference to the tribunal’s finding
about the dimensions of the relevant market and substituting its own finding
 2. Whether the FCA erred in refusing to set aside the tribunal’s remedial order
 3. What amount of deference is due to a competition tribunal

Analysis: Iacobucci J.
 Tribunal should be held to the standard of reasonableness simpliciter; the reviewing court
must determine if the decision was reasonable
A. Statutory Right of Appeal
 No privative clause; statutory right of appeal

B. Nature of the Problem Before the Tribunal

 Iacobucci J says this is a problem of mixed fact and law; the question of a “single market” is
one of law but driven by fact
 Q: Did the CT consider all relevant evidence and factors? YES
 Q: Did the CT accord adequate weight to certain factors?
o Weighing factors requires applying a balancing test; a balancing test is a legal rule whose
application should be flexible, not mechanical
o Cannot assign fixed weights to certain factors, e.g. cannot say that evidence of inter-
industry competition should weigh 10 times as heavily in the Tribunal’s deliberations as
evidence of physical similarities between products
o Must leave it to the Tribunal to weigh factors
 No error of law so must be a question of mixed fact and law
 Appellate courts should be reluctant to re-examine conclusions of Tribunal on questions of
mixed fact and law

C. Words of the Tribunal’s Constating Statute

 S. 13 of the Competition Tribunal Act confers a right of appeal from orders and decisions of
Tribunal
 Broad, unfettered right of appeal; however, the absence of a privative clause is not definitive

D. Purpose of the Statute that the Tribunal Administers

 Aims of the Competition Act are more “economic” that strictly legal
 Matters that business women and men and economists are better able to understand than is a
typical judge
 Balancing actual test of act against intent interpreted by Court
 This suggests appellate deference to Tribunal’s decision

E. Tribunal’s Expertise
 Expertise, which in this case overlaps with purpose of the statute, is the most important of the
factors that a court must consider in settling on a standard of review
 Iacobucci J. quotes United Brotherhood, SCC, 1993

17
 o …the expertise of the tribunal is of the utmost importance in determining the intention of
the legislator with respect to the degree of deference to be shown to a tribunal’s decision
in the absence of a full privative clause
 Highlights role of judicial members of Tribunal; they consider legal questions and so if not a
legal question then non-judicial members should be deferred to

F. Arriving at the Standard

 Considerations that suggest deference:
1. Dispute is over a question of mixed fact and law
2. Purpose of the Competition Act is broadly economic and so better served by economic
judgment
3. Application of the principles of competition law fall squarely within area of Tribunal’s
expertise
 Considerations that suggest a more exacting review/less deference:
1. Existence of a broad, statutory right of appeal from decisions of Tribunal
2. Presence of judges on the Tribunal
 Conclusion: standard of review falls in middle between correctness and patent
unreasonableness
 Because expertise of the Tribunal is the most important consideration, a more deferential
posture is warranted

Distinguishing Between Reasonableness Simpliciter (or Unreasonableness) and Patent

Unreasonableness
 The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or
obviousness of the defect
 If the defect is apparent on the face of the tribunal’s reasons then the tribunal’s decision is
patently unreasonable
 But if it takes some significant searching or testing to find the defect then the decision is
unreasonable but not patently unreasonable
 Reasonableness simpliciter is akin the “clearly wrong” test applied by appellate courts in
reviewing findings of fact by trial judges
o …the accepted approach of a court of appeal is to test the findings [of fact] made
at trial on the basis of whether or not they were clearly wrong rather than whether
they accorded with that court’s view of the balance of probability (Stein v. Kathy
K)
Applying the Standard
 Iacobucci J. considers the two “defects” in the Tribunal’s decision identified by the FCA:
1. Tribunal failed to consider evidence that daily newspapers and community newspapers
are functionally interchangeable, i.e., the use to which advertisers put daily and
community newspapers
2. Tribunal failed to consider evidence that Southam considered the community newspapers
to be its chief rivals/competitors
 Tribunal held that community and daily papers serve different purposes and advertisers were
sufficiently discerning to not take their business elsewhere b/c of a change in price – Iacobucci
J isn’t convinced but says the “decision only need be reasonable and not necessarily correct”
 Newspapers can be in the same region/area and serve different advertising markets; Daily
newspapers serve advertisers who wish to reach even a small proportion of people in a large
region whereas community papers serve advertisers who wish to reach a large audience in a
small market

18
 Not all products in the same market serve the same purpose; the adjudicator must identify the
relevant purpose of a product and this is done by understanding the behaviour of consumers;
the purpose of a daily or community paper depends on the intention of the user
 Iacobucci J has a hard time swallowing the fact that Southam’s own expert identified
community newspapers as being the source of the company’s difficulties and then the Tribunal
found that the newspapers were NOT competitors – hard to swallow but not unreasonable
Held:
 Even though the CT imposed too strict a test, its remedy was appropriate
 The question of whether a particular remedy eliminates the substantial lessening of
competition is a matter of the application of a legal standard to a particular set of facts
(reasonableness)
 Not reviewing on standard of correctness; not substituting his own views; if Tribunal lays out
tenable set of reasons then those reasons should be deferred to
 The SCC reiterates that the tribunal’s decision should only be reasonable, but not
necessarily correct; if the tribunal’s reasons have logical and evidentiary underpinning,
it is not the place of the court to substitute its conclusions
Dissent:
 No dissent noted
Case in Context:
 Southam emphasizes purpose of legislation; expertise factor is considered most important
factor, more important than statutory right of appeal;
 Southam consolidates importance of highly specialized tribunals, e.g., fields of economic
regulation and deference to them

VH Comments:
 VH pondered as to whether the expertise in decisions such as Pezim, Southam, Ryan, was
beyond the court
 In Southam a survey was used to arrive at certain decisions as to whether or not daily and
community newspapers are in competition with each other
 VH argues that perhaps these decisions were not beyond expertise of courts by keeping in
mind that when courts are deciding upon the standard of review in a particular case, and
considering the role of expertise of a tribunal, they are not just talking about that specific case
 It might be in the specific circumstances of the case expertise is not particularly relevant but
the courts don’t have the luxury of just focusing on a specific case,
 The Court has to carry out a global assessment of the factors that are relevant to the courts
decision-making going forward, i.e., what should the relationship between the courts and that
particular tribunal in that area of its decision making responsibility – what should that
relationship be AND what should the standard of review be to a wide range of cases not just
the one that a single survey is taken or the one where an alcoholic lawyer is fabricating a court
of appeal decision

Notes on Pezim and Southam

 Both decisions written by Iacobucci J
 Both apply standard of reasonableness simpliciter
 Pezim is a question of law whereas Southam is a question of mixed fact and law

Distinguishing the “Nature of the Problem” in Southam from Pezim

 The BCCA in Pezim held it was an error of law to regard newly acquired information on the
value of the assets as a ‘material change’ in the affairs of the company

19
 Iacobucci J says in Pezim it was common ground that the proper test was whether the
information constituted a material change and whether the acquisition of information of a
certain kind qualified as such a change
 He says although the question in Pezim might look like one of mixed fact and law, i.e, does
the new information qualify as a material change, the question was one of law
 Why?
 It is a question of law b/c:
o the words in question were present in a statutory provision
o questions of statutory interpretation are generally questions of law
o point in controversy was one that might potentially arise in many cases in the
future (precedential value) ;
o argument was about kinds of information and not merely the particular
information at issue in the case
 The rule on which the BC Securities Commission seemed to rely—that newly acquired
information about the value of assets can constitute a material change—was a matter of law
because it had the potential to apply widely to many cases (general applicability; precedential
value)

Similarities in Pezim and Southam

 Pezim involved decision of BC Securities Commission; one of its tasks was to be sensitive to
and enhance capital market efficiency
 Southam involves decision of Competition Tribunal
 In Pezim appeals from decisions of Securities Commission lay as of right; in Southam it is the
same
 Questions in Pezim were entirely within the competence of the Securities Commission to
answer; the question in Southam was entirely within competence of Competition Tribunal to
answer
 Principal difference in cases is that Pezim involved a question of law

Law Society of New Brunswick v. Ryan 2003 (SCC)

Facts:

 Lawyer did nothing for clients for 5 – 6 years but concocted stories to make them think he
was – including forging a decision from NB court
 Law Society (LS) decided to disbar and held a second hearing to decide if there were
mitigating factors (health etc.) – found the only health problem was his alcoholism – not
mitigating upheld disbarment
Analysis:
 NB CA – substituted indefinite suspension instead of disbarment
 CA said it was troubled b/c there were analogous cases in which the lawyer had not been
disbarred - didn’t expect that the sanction would have to be the same but at least expect that
there should be reasons given as to why lawyer was given this sanction
 CA said reasonableness was a spectrum and therefore would have a spectrum of deference –
substituted the remedy of indefinite suspension on a standard of correctness
 SCC – Iacobucci:
 rejects statement that there is a ‘spectrum within reasonableness standard’ – says what he
meant in Pezim was a spectrum with only 3 points
 Four step test (pg 782)

20
 1. Is there privative clause – here no clause and right of appeal – enough to conclude
high level of scrutiny
2. Relative Expertise – reasons to defer b/c members are closer on the ground
3. Purpose of Legislation – emphasizes the preamble of the statute re self-regulation –
thinks the purpose of the statute has self-regulation as its important function
4. Nature of the question – mixed question of fact and law – general principles of the act
in particular circumstances
Ratio:
 Iacobucci J: in spite of the broad statutory right of appeal, the Committee was entitled to
deference in light of expertise, statutory purpose, and fact that the question was one of
mixed fact and law
 decision to disbar was not unreasonable
 also confirmed that there are only three standards of review, not a ‘spectrum’ of innumerable
standards
[Prof] – right result – standard should be reasonableness

The Pragmatic and Functional Approach

See Mullan at p. 733; quotation by Lambert JA; describes the pragmatic and functional
approach:
The pragmatic and functional approach requires the courts to rise above technicalities of all
kinds, particularly legal and drafting technicalities and to respond to the fundamental issues of
democratic government, in particular, the paramount authority of Parliament and legislatures to
confer ample jurisdiction on experienced people in statutory tribunals to regulate particularly
difficult social interactions and the obligation of the courts to check arbitrary acts against the
individual or group beyond what Parliament and legislatures must be taken to have conceived.

Baker [1999] 2 SCR 817 (Can)

Facts: Order to deport B from Canada after 11 years in the country (illegally). Jamaican citizen
applying for exemption from requirement to apply for permanent residency from outside
Canada based on humanitarian and compassionate grounds. [S. 114(2) Immigration Act] –
separation from Canadian born children. Discretionary decision by immigration officials
whether to allow B to remain on H &C grounds. B suffered from mental illness and had had four
children in Canada. Application for exception from deportation denied by officer Caden on
advice from (junior) officer Lorenz.

She was provided w/ Lorenz’ notes (below):

‘PC is unemployed – on Welfare. No income shown – no assets. Has four Cdn.-born children –
four other children in Jamaica – HAS A TOTAL OF EIGHT CHILDREN
Says only two children are in her “direct custody.” (No info on who has the other two).
There is nothing for her in Jamaica – hasn’t been there in a long time – no longer close to her
children there – no jobs there – she has no skills other than as a domestic – children would suffer
– can’t take them with her and can’t leave them with anyone here. Says has suffered from a
mental disorder since ’81 – is now an outpatient and is improving. If sent back will have a
relapse.
Letter from Children’s Aid – they say PC has been diagnosed as a paranoid schizophrenic –
children would suffer it returned –
Letter of Aug. ’93 from phychiatrist from Ont. Govm’t.

21
Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when was 25 yrs.
old. Is now an out-patient and is doing relatively well – deportation would be an extremely
stressful experience.
Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PC’s mental
condition would suffer a setback if she is deported etc.
This case is a catastrophy. It is also an indictment of our “system” that the client came as a visitor
in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE!
he PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a
domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE.
She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of
her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do
we let her stay because of that? I am of the opinion that Canada can no longer afford this type of
generosity. However, because of the circumstances involved, there is a potential for adverse
publicity. I recommend refusal but you may wish to clear this with someone at Region.
There is also a potential for violence – see charge of “assault with a weapon.” ’

Issues: What’s the standard of review when officer has discretion?

Held: Appeal granted; sent back to refugee board for determination.

Unreasonable b/c of immigration officer’s Failure to give appropriate consideration to the factor
of best interests of the child, as emphasized in intl law, Immigration Act, and H &C Guidelines;
officer’s decision “was inconsistent w/ values underlying grant of discretion”; notes of Lorenz
reveal that exercise of discretion went beyond permissible boundaries of statute and public
international law, show reasonable apprehension of bias shown in notes, esp. b/c of her children,
and her previous mental health care. Officer fulfilled duty to give reasons.
Dissent: International treaty not relevant b/c not incorp. into domestic law

Discretion & Polycentricity

 with Baker [1999], now considered as a factor within pragmatic and functional approach
 ‘discretionary’ decisions previously overturned where:
 bad faith
 wrongful delegation of powers
 fettering of discretion and refusal to address individual cases
 acting under dictation of another
 use of discretion to achieve a purpose not contemplated by grant of discretion
 consideration of irrelevant factor or failure to consider relevant factor

Judicial statements on discretion

1. L’Heureux-Dube: “[The doctrines dictating a limited scope of review with respect to
discretionary decisions] recognize that it is the intention of a legislature, when using
statutory language that confers broad choices on administrative agencies, that courts
should not lightly interfere …discretion.” - “It is, however, inaccurate to speak of a
rigid dichotomy of “discretionary” or “non-discretionary” decisions”. - “Discretionary
decisions will generally be given considerable respect, that discretion must be exercised
in accordance with the boundaries imposed in the statute, the principles of the rule of law,
the principles of administrative law, the fundamental values of Canadian society, and the
principles of the Charter.”
2. Iacobucci J. (and Cory J.): ““I do not agree with the approach adopted by my colleague
wherein reference is made to the underlying values of an unimplemented international
treaty in the course of the contextual approach to statutory interpretation and

22
 administrative law…. In my view, one should proceed with caution in deciding matters of
this nature, lest we adversely affect the balance maintained by our Parliamentary tradition
(ie. legislative intention), or inadvertently grant the executive the power to bind citizens
without the necessity of involving the legislative branch.” (at paras. 79-80)

Standard of review = reasonableness:

 Apply P & G approach:
 no privative clause; limited right of appeal—statute calls for deference
 Expertise: ‘some expertise’ of minister in immigration matters; neutral, b/c courts may
have more expertise in HR
 Nature of Q: The legal principles are relatively open textured, and involved decisions to
exempt people. It was an individualized, fact-based decision affecting the rights of
individuals relative to the state. Decision turned on the facts of a persons’ case, and not
stat. interpretation;
High level of discretion delegated by Parliament (high deference), but with great significance for
individuals (low deference)=middle standard of reasonableness

Significance of Baker:
It creates a duty to give reasons and way it implements level of discretion as a factor in applying
the pragmatic and functional approach, rather than a separate analysis

Aside:
Duty of Procedural fairness, 5 non exhaustive factors
1. consider the nature of the decision being made: the more the process provides for the
function of the admin tribunal, the nature of the decision making body, and the
determinations that must be made to reach a decision resemble judicial decision making,
the likelier procedural protections closer to trial model will require procedural fairness
(66)
2. The agency’s own choice of procedures. Where statutory regimes allows the agency to
define own procedures, or when the agency has an expertise in determining appropriate
procedures, courts should show deference
3. Consider the nature of the statutory scheme; greater procedural protections required
where no appeal procedure w/in statute, or when the decision is determinative of the issue
and further requests cannot be submitted
4. The importance of the decision to the individual(s) affected—e.g. high standard of justice
where one’s profession/employment at stake, such as in disciplinary procedure
5. If claimant has legitmate expectation that certain result will be reached in his/her case,
fairness may require more extensive procedural rights than otherwise accorded

Underlying values: individuals affected should have chance to present case fully and fairly, and
have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open
process, appropriate to the statutory, institutional, and social context of the decision

Pushpanathan [1998] 1 SCR 982

This is a leading case on standard of review which maps out the relevant factors. It offers a re-
articulation of the F&P approach laid down in CUPE and Bibeault.
Facts:
o Immigration Canada order for deportation of narcotics offender.
o Order conditional on him not being a refugee. Currently on parole. Refugee status rejected.
o Goes to Immigration and Refugee Board.

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o Legislation: exception to the Immigration Act: you are not a refugee if you have committed
acts contrary to UN purposes and principles.
o Weak privative clause.
o Statutory right of appeal triggered if case presents “a serious question of general importance”
(i.e. a general question of law).
SCC (Bastarache for the majority):
o This is a pure question of law. It should be reviewed on the standard of correctness. The
decision made was an erroneous one.
o Bastarache sets down a concise summary of the 4 Factors involved in a F&P approach.

4 Factors in a F&P Analysis:

i) Privative Clauses
a. Full Privative Clause (e.g. labour legislation which often uses language like “decisions
are final and conclusive and from which there are no appeals”) present clear and
compelling evidence that the Legislature intended the courts to exercise deference and
use a standard of patent unreasonableness.
b. Ambiguous Privative Clause: language might call for a presumption of deference.
c. No Privative Clause: need not mean no level of deference. Absence of privative clause
doesn’t mean anything if other factors bespeak deference.
d. No Privative Clause + a statutory Appeal Provision: demands a more searching standard
of review.

ii. Expertise of Decision Maker

o Specialized Knowledge / Specialized Procedure of Operation / Specialized
Implementation of Decisions Makers Mandate.

Vs.
o Judicial Knowledge/Procedure/Implementation (requires courts to determine its own
nature and mandate, framed against the wider activities of govt.)
o Expertise depends on the type of question at play: is it a narrow question or a wider
question (this is really a question of context). Once a broad relative expertise had
been established, courts sometimes show considerable deference even in cases of
highly generalized statutory interpretation, particularly where the case involves a
tribunal’s constituent legislation (eg Pezim, where a standard of PU was applied)
o The more fact driven or multi-faceted the question, the more judicial deference is
required.
o But where more of a question of classical adjudication (determining rights between
parties, or more about jurisdiction), then the courts are the appropriate venue.
iii. Process of Statutory Interpretation

o Overlaps with expertise.

o Is that a case of establishing rights/settling disputes or of balancing competing interests in

society (“polycentricity”)? Polycentric questions/decisions involve general policy

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 questions, complex factors and the weighing of interests in society that are not well-
suited to the adjudicative forum.
o Relevant provisions. (n.b. F&P approach is all about purpose and context of the provision
and the whole legislative scheme, not a formalist approach to provisions.
iv. Nature of the Problem being put before the Admin Body.
o A question of fact/law/mixed (ie. the application of law to the fact)?

o However even legal questions can attract deference, particularly in economic

contexts (also for example LHD’s dissent in Mossop).
o There is not always a bright line between fact and law.

o As per GVH: P&F approach is VERY FLEXIBLE and thus is great for exams, no
single right answer in every case.
o Here, “serious questions of general importance” demand a correctness standard (note
that in Southam, Pezim, etc questions of law are defined as questions that might have
potential application in many cases in the future.
Decision:
o IRB expertise is an assessment of facts of a large number of refugee claims. It is a less
specialized body than human rights bodies, who at least have experience with legal questions.
o IRB has limited experience in legal inquiries.
o IRB is not being asked to deal with polycentric decisions. This is a case of individuals and
relatively static human rights. Drug trafficking is not a concept that was intended by the
Legislature.
o Dissent by Cory & Major.

Discretionary Decisions

Roncarelli [1959] SCR 121 (Que)

Facts:
• Premier Duplessis’ war on the Jehovah’s Witnesses: ordered liquor commission to revoke the
liquor license of Mr. Roncarelli because he had posted bail for Jehovah’s Witnesses charged
under municipal bylaws
Analysis: Rand J:
 ‘It is a matter of vital importance that a public administration that can refuse to allow a person
to enter or continue a calling... should be conducted with complete impartiality and integrity;
and that the grounds for refusing or cancelling a permit should unquestionably be such and
such only as are incompatible with the purposes envisaged by the statute....
 In public regulation of this sort there is no such thing as absolute and untrammelled
“discretion”, that is that action can be taken on any ground for any reason that can be
suggested to the mind of the administrator.... “Discretion” necessarily implies good faith in
discharging public duty; there is always a perspective within which a statute is intended to
operate.... ’
 This case stands for the two principles underlined:
1. There is not such thing as absolute discretion in public regulation

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 2. When an administrator uses his/her discretion in discharging a public duty it must be
done in good faith
Factors Courts Consider in Evaluating Discretion and How Much Should Be Given to a
Tribunal
1. The statutory language in which the discretion is granted
a. Is it couched in subjective or objective terms?
b. Is it related to a specific purpose or it is granted for more general purposes?
2. The nature of the interest affected by the discretionary power
a. Is it one to which our legal system normally gives a high degree of protection?
b. How seriously is it affected by the decision?
3. The character of the decision
a. Are there effective alternative checks, such as political accountability that will
prevent the abuse of discretion?
4. Character of the decision maker
a. It has been suggested that courts should show some deference to the expertise of
well-established administrative agencies, at least when the expertise is relevant to the
interpretation of the statutory term in dispute.
b. However, not all discretionary powers are exercised after a hearing, nor are reasons
necessarily given. Moreover, discretion is vested in a wide range of officials and
bodies whose claim to a relevant expertise may not be less compelling than that of
labour relations boards, for example.
c. On the other hand, when power is exercised by the cabinet or a minister another
dimension is present, respect for the judgment of those with supposed political
accountability

The Use and Misuse of Discretion (Chapter 12, p. 947)

Dicey, Hayek, and Discretion (or some bon mots for a policy/essay question)
 Dicey appeared to regard the presence of discretion as inimical to a system of government that
was subject to the rule of law
 Dicey observed that the delivery of social programs required the grant of broad discretion to
officials
 He warned that the implementation of “collectivist social policies” required extensive
discretion and that officials were always likely to abuse powers that were not strictly confined
by law
 A strong aversion to discretion is also present in the work of F.A. Hayek
 Discretion is an anathema to the liberal state when it means that officials have powers which
affect the private domain of the individual and that the criteria for their exercise is left to the
official themselves
 The danger of discretion in this sense is that its exercise depends upon the preferences of
officials, which may in turn be determined by variable values and purposes
 This means according to Hayek that the individual is subject to coercion by state officials, in
that they have control over his affairs in such a ways as to prevent him from planning his life,
secure in the knowledge of the nature and limits of official powers
 Hayek argues for a conception of justice according to which rules are just only if they are both
general in nature and would receive universal account

The Lessening Distinction Between Law And Discretion As Administrative Tools

 These four observations, says Mullan have been accepted by SCC in Baker

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 1. The terms of an agency’s enabling statute frequently do not yield a clear meaning that
identifies the “correct” answer to a specific problem. Because many situations are not
foreseen at the time of enactment, statutory provisions require interpretation by officials.
The process of filling the silences and resolving the ambiguities in statutory language that
interpretation so often involves can be described as the exercise of an implicit discretion
to elaborate unclear or incomplete legislative instructions
2. Even the most detailed and precise regulatory codes are not self-enforcing; typically
officials are left with ample and unstated discretion about the circumstances in which
they will actually be enforced against individuals
3. Just as rules contain grants of implicit discretion (both of interpretation and enforcement)
so all express grants of discretion to pubic officials are subject to some legal limits at
least when their exercise affects the rights and interests of individuals. The courts have
normally asserted that in our system of constitutional government there are no legally
unlimited public powers, regardless of whether they are claimed by an independent
administrative agency, a municipality, a minister of the Crown or the governor (or
lieutenant governor) in council. It is an essential function of the courts to determine what
those limits are by reference to the terms of an the enabling statute, common law
principles, the Constitution Ac, 1867-1982 (including the Charter) and now, on occasion,
the underlying principles of the Canadian Constitution
4. It is sometimes assumed that while a rule bound solution to a dispute requires the
decision maker to base it on precedent and general legal principles, those exercising
discretion need to consult only their own preferences. Discretionary decisions must be
made by reference not only to the statutory purposes and other legal limits of the power
but they should also be informed by any policy objectives formulated by the agency,
guidelines that it has issued, and its past practice. Arbitrariness is as much the antithesis
of the effective exercise of discretion as the mechanical application of rules is of the just
administration of the law.
*The differences between discretionary and rule-based decisions are of degree, not kind.

Suresh v. Canada (Minister of Citizenship and Immigration) 2002 (SCC)

Facts:
 Order to deport permanent resident on grounds of ‘danger to the security of Canada’’
 Mr. Suresh was senior figure in Tamil Tigers (armed wing of the Tamil independence
movement in Sri Lanka)
Analysis:
 relevant substantive questions:
o Was Mr. Suresh’s presence in Canada a ‘danger to the security of Canada’?
o Did Mr. Suresh face a substantial risk of torture on return to Sri Lanka?
 SCC commented on (but did not decide) standard of review, emphasizing deference:

1. wide ministerial discretion in statute

2. right of appeal only with leave from FCTD
3. superior expertise of security agencies (citing Rehman [2001] UK HL)
4. statutory purpose requires polycentric balancing of humanitarian concerns
against security
 first question (national security): patent unreasonableness

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  second question (risk of torture): suggests high deference, but does not commit to patent
unreasonableness
 weighing of relevant factors is not the function of the court (seems to be at odds with the
finding in Baker, where found that not enough weight was accorded to the best interests of
the child)
 Can this decision be reconciled?
 Have to think about
o 1) in Baker, could argue not about re-weighing factors, but that particular weight
had to be given to certain factors
o 2) not just weight but also that decision maker put the “wrong” weight on the
factor of the Canadian born children – perverse use of one of the relevant factors,
contrary to statute
o 3) now discretion judged on prag and func approach and in Baker got to
reasonableness and in Suresh got to patent unreasonableness
Ratio:
 still relevant to think about purpose for which statute exists in review of discretion
- Not talking about abuse of disc or ultra vires but perform a prag and func approach,
even if discretionary decision by a minister.
- Discretion separate from standard of review, but in new version would be under prag
and func approach

Re Sheehan [1975] 52 DLR (3d) 728 (Ont CA)

 eg pre-Baker approach to review of discretionary decisions: rejection by Ontario Criminal
Injuries Board of compensation claim by prisoner injured in riot at Kingston Penitentiary
 Board exercised statutory discretion to deny compensation on rationale that (1) Sheehan was
a criminal, (2) incident involved persons in federal custody, (3) no application had been
made elsewhere for compensation
 Ontario Divisional Court overturned on basis that these factors were irrelevant; emphasized
purpose of Act and requirement that all claims be considered properly
 Ontario CA restored the Board’s decision as a careful and thoughtful exercise of discretion,
not arbitrary or capricious

Nature of the Decision

Trinity Western University v. British Columbia College of Teachers [2001] 1 SCR 772
Facts:
 Decision by BC College of Teachers not to approve proposed teacher training program of
TWU, a private Christina university
 TWU wanted to have its program reflect its Christian world view
 BCCT refused to approve the application b/c it was contrary to the public interest for the
BCCT to approve a program that appears to follow discriminatory practices, in particular
TWU’s objection to homosexuality
 All students, faculty and staff had to sign a document in which they agreed to refrain from
“sexual sins including homosexuality”
 Authority of BC College of Teachers to “establish having regard to the public interest,
standards for the education, professional responsibility and competence of its members
Judicial History:

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 BC SC found that it was not within BCCT’s jurisdiction to consider whether the program
follows discriminatory practices under the public interest component of the Teaching
Profession Act and there was no foundation to support the BCCT’s decision with regard to
discrimination
 BC CA found that the BCCT had acted within its jurisdiction but affirmed the trial judge’s
decision that there was no reasonable foundation for the BCCT’s finding of discrimination;
based on reading of documents and not assessment of how documents had been implemented
Issues:
 Is consideration of discriminatory practices within the jurisdiction of the BCCT?
Analysis: Iacobucci J & Bastarache J
 Examined s. 4 of the Teaching Profession Act: “to establish, having regard to the public
interest, standard for the education, professional responsibility and competence of its
members, persons who hold certificates of qualification and applicants for membership and…
to encourage the professional interest of its members
 Majority characterizes decision as being one of law and therefore calling for less deference
The Standard of Review
 Court applies a standard of correctness because:
o BCCT now the only government actor entrusted with policy development, the Minister of
Education and an Education Advisory Council also develop policy so it cannot be said
that the Legislature contemplated leaving these decisions exclusively to the BCCT
o BCCT’s expertise does not qualify it to interpret the scope of human rights to reconcile
competing rights; members of college mostly teachers with not expertise in balancing
competing interests
o The Court did not accept that the determination of good character, which it said was an
individual matter, was sufficient to expand the jurisdiction of the BCCT to the evaluation
of religious belief, freedom of association and the right to equality
o The BCCT sets standards for teachers but this does not include an interpretation of
human rights codes
o The absence of a privative clause, the expertise of the BCCT, the nature of the decision
and the statutory context all favour a correctness standard
o Evidence in this case is speculative involving consideration of the potential future beliefs
and conduct of graduates from the teacher program at TWU
Held: BCCT erred in its decision; no deference to decision
 Within jurisdiction of College to consider discriminatory practices (correctness)
 Practices not shown to be discriminatory (correctness)
 “The existence of discriminatory practices is based on the interpretation of the TWU
documents and human rights values and principles. This is a question of law that is
concerned with human rights and not essentially educational matters”
Dissent: L’Heureux-Dube
 Disagrees with the standard of review; she would apply a standard of patent unreasonable
 No privative clause
 She sees mandate and expertise of college very differently; core of case about educational
environment for students in BC
 Purpose of Statutory Scheme: think Ryan and Iacobucci emphasizing importance of statutory
scheme to regulate lawyers; The BCCT is obligated by the Teaching Profession Act to assess
any component of a teacher training program that may affect “the education, professional
responsibility and competence of its members” It is irrelevant that private religious institutions
are protected under British Columbia’s Human Rights Code. The BCCT must review all
teacher training programs in the same light, using its own expertly determined standards

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 Nature of Question: not one of balancing rights and values but application of one single
human rights value, being equality; It is a misconception to characterize the BCCT’s decision
as being a balancing or interpretation of human rights values, an exercise beyond the
Tribunal’s expertise. The BCCT’s decision employed one relevant and undisputed Charter or
human rights value, that of equality, in the context of appraising the impact on the classroom
environment
 Equality has clear established meaning; BCCT has public interest mandate to ensure that there
are no discriminatory practices in classroom
 The BCCT’s equality based approach, focussed on supportive atmospheres in public school
classrooms, merits a standard of review of patent unreasonable because it directly engages the
specialization of the tribunal
 Expertise: The BCCT has the expertise to determine the relevant criteria for this supervisory
exercise and its assessment of these factors deserves significant deference; H-D (L’Heureux-
Dube) emphasizes expertise of setting standards of BCTC; College best able to know impact
of discriminatory teaching practices
 Decision that practices were discriminatory was fact-based, within the College’s expertise
and not patently unreasonable
Case in Context:
 As long as the reviewing court’s sense of itself is that it is as expert as the tribunal on the
issues in question, there is a large chance that correctness will emerge as the standard of
review
VH Comments:
 Is this really a pure question of law or really a question of mixed fact and law?
 Distinguish this case from situation in Southam; here not physical actions of people but rather
language of policy documents
 VH says look for questions of mixed law and fact that a court treats as question of law in order
to justify a correctness standard;

Dr. Q. v. College of Physicians and Surgeons of BC [2003] 1 SCR 226

—court defer to tribunal finding of credibility as Q of mixed fact and law
Facts: Decision of Inquiry Committee of College of physicians and surgeons. Dr. Q took physical
and emotional advantage of patient-- They’d had 16 mo. sexual relationship during and after
which he’d seen her for depression. Committee found Q guilty of misconduct (infamous
conduct), based on assessment of oral evidence and supplementary evidence; he was suspended
for 18 mo. w/restrictions on his return. Dr. Q appealed on the merits, via statutory right of appeal.
It turned on a Q of credibility. He said/she said, and commission believed complainant rather than
Q was credible.

Issue: What’s the applicable standard of review on a Q of credibility?

BC Supreme court overturned finding as unsafe on basis that evidence not “sufficiently cogent”
BCCA upheld BC SC on basis that not clearly wrong
SCC found it all wrong.
McLachlin criticizes trial (and appeal) judge, for not using P & F approach and for improperly
applying correctness standard. Reviews P & F approach and applies it to this assessment of
credibility—a q of mixed law and fact
SCC’s (McLachlin’s) critique of TJ: TJ has assessed on whether there was clear and cogent
evidence to support finding of guilt; that’s the standard of proof that was supposed to be applied
by the tribunal—as a disciplinary conclusion. TJ re-assessed on same standard. TJ Interfered
w/tribunal assessment as well as pieces of evidence that undermined Dr. Q’s credibility. TJ inapp.

30
Instructed herself to apply correctness standard, reviewed evidence, and substituted her view of
credibility, w/out applying P & F approach.
McLachlin’s critique of BCCA for deference to TJ: Lower court has to be correct in standard
of review and application; BCCA not supposed to defer to lower court when the decision is a
review of Admin
P & F a global standard and all factors have to be interpreted in this light--P &F approach obliges
court to weigh a series of factors to determine whether the decision of the admin body should be
reviewed on deferential standard (Southam)
Review of P & F
1. How did the case get before the court? Is there a right of appeal or preclusive clause w/in
statute
 BC discpln. Committee includes right of appeal on merits of q of law or fact w/in statute
 A right of appeal suggests a correctness standard, b/c legislature provided an avenue of
access to courts
 Whereas preclusive clause an indication from legislature that deference inherent
2. Nature of the question
 law, fact, mixed law and fact
Distinction b/n Q of fact, law and mixed fact and law
 Q of law affects future cases; fact limited to case at hand
 Mixed: interpretation can’t be detached from resolution of fact, or where interpretation
involved application o flaw to fact (eg. Southam: whether newspapers in same market
was Q of mixed law and fact; [35] In tort: Q of negligence, Q of law, DF’s action: fact,
whether DF met standard of care: mixed fact and law)
[37] As level of generality moves toward utter particularity, the matter approached pure
application and hence draw nigh to being an unqualified Q of
mixed F&L
 Law suggests standard of correctness, however; most q’s of law before tribunal involve
interpretation of enabling statute and t/f can be deference shown
 fact: reasonableness
 law and fact: reasonableness
 As level of generality moves toward particularity, moves toward mixed F&L
3. As b/n tribunal and court, what is their relative expertise?
 Q for which expertise of tribunal extends, likelier to be standard of reasonableness
 Whereas, for expertise of courts, correctness
4. Purpose of statute: the legislative scheme and impugned provision
 in prof. discipline, it’s purpose is self regulation, which suggests deference

A. Broad right of appeal—toward Correctness

B. Expertise of committee—Deferential
 Deference, b/c tribunal hears evidence first hand
o Person who hears and sees witnesses in better position to assess credibility, or
any q of fact. The fact finder immerses itself in evidence in way that appellate
court cannot and should not
 Deference b/c it may engage assessing error or consequences of medical procedure,
which professionals are in a better position to judge
C. Character of Q—Q of credibility, factual and evidence oriented, which leans toward PU
standard. Findings of fact or credibility

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D. Purpose of legislation/provision in issue: Tribunal had adjudicative function, looks at
Polycentricity and range of remedies, deviation from judicial procedure? Statute as a whole is
regulatory /polycentric, but this issue is a dispute about someone’s future = judicial = balancing
of interests of doctors and profession = judicative appearance, but rules it as ambiguous due to
conflict: neutral factor
 a stat purpose that requires a tribunal to select from a range of remedial choices or
admin responses, is concerned with the protection of the public, engages policy issues, or
involves the balancing of multiple sets of interests or considerations, will demand
greater deference
Held: appropriate standard was simple unreasonableness; Apply P & F approach: tribunal’s
decision and its reasonableness (no reasonableness, no deference). The admin body was not
unreasonable in its interp of evidence (TJ should have addressed how the committee came to its
decision, not review evidence). Findings of credibility or fact entitled to “considerable
deference”;
o What were the tribunal’s finding, and was it grounded
o What evidence did it rely on?
o Court not supposed to weigh the evidence, whereas TJ did, and applied C
standard
V: Note how nature of decision can shift standard
 Patent unreasonableness— considerable deference
 SU—somewhere in middle
 C—exacting review, significant searching or testing, (very little is any deference)

 No longer distinguishes reasonableness and PU as Iac. had done in Southam (He’d said
that if defect apparent w/out searching review, then PU, whereas if you need to analyse to
find defect, not PU, but R)
A move toward collapsing reasonableness

Levis (City) v. Fraternite des policiers de Levis Inc. 2007 (SCC)

Facts:
 dismissal by municipal employer of police officer for commission of criminal offences
 Police Act amendments required dismissal of police officers for serious criminal offences
unless special circumstances shown
 In light of provisions and the investigation that showed officer had not shown special
circumstances – city dismissed
 Grievance filed by officer under collective agreement
Analysis:
 Cities and Towns Act required five-year disqualification of municipal employee for serious
criminal offences where offence connected to duties as employee
 this provision did not allow for special circumstances but the offence had to be connected to
the municipals duties and the disqualification was limited to areas of employment with
similar areas of duty
 dismissal overturned by labour arbitrator on finding that special circumstances were shown
(arising from family problems and alcoholism) and that Police Act trumped Cities and Towns
Act
 If both acts applied officer in difficult situation – even if he can show he should not be
dismissed he would then be disqualified under the City Act as a cop for 5 years and would
not benefit from the other provisions in the City and Town act – just about any serious
offence will relate to his duties (uphold the law)

32
  View that there was such a conflict between two acts and surrounding concern lead the
arbitrator to decide there was a conflict and the police act took precedent over city and town
act –
 CA overturned Quebec Superior Court and restored labour arbitrator decisions
 Bastarache J (majority):
 arbitrator’s decision on dismissal = question of mixed fact and law; overturned on
reasonableness standard
 arbitrator’s decision on conflict between Acts = question of law; upheld on correctness
standard
 Deschamps & Fish JJ (Dissent): arbitrator’s decision on conflict between Acts was incorrect
– no need to look at which act should prevail
 Abella J: arbitrator was entitled to single, non-segregated deferential standard; arbitrator’s
decision on dismissal was unreasonable
Ratio:
 City was ultimately successful at SCC b/c all judges overturned the arbitrator on decisions re:
special circumstances
 Found arbitrator had not held officer to burden of proof to show circumstances, public
confidence would be undermined
 Maj found arbitrator acted unreasonably in widening the exception
 SCC upheld the arbitrator on question of law – scrutinizing standard applied but overturned
on mixed fact and law which was entitled to deference and reasonableness standard
Note:
When will court segregate and when won’t they?
 Maj paid little heed to the prescence of a strong privative clause – very important – labour
code empowers arbitrators to consider any Act in order to resolve
 Court says question of law (conflict) before tribunal was not within arbitrator’s mandate
 The arbitrators relative expertise did not assist with the answer to these questions b/c it did
not relate to his area of expertise – they were not labour codes, but they were provisions that
dealt squarely with employee discipline
[prof] –their expertise would overlap into different areas of employment and sensitivity
Bastrache does say all reviews should not have deference as a result of this decision – [prof]
thinks it opens a back door for just that – intervention by courts in relation to a matter that is
only for an individual but has greater interest to many
Prof: everyone but Abella segregates. Deschamps and Fish do not discuss this, but they
would not otherwise be in a position to apply a correctness standard (as they do) to the
conflict question. Their doing so is premised on the segregation of that question from the
rest of the arbitrator's decision-making, which is subject to a reasonableness standard (as
in the case of Bastarache). The clearest indication of this is at para.105 where Deschamps
and Fish say that they agree with Bastarache j that the arbitrator's decision was
unreasonable, but they disagree on his conclusion as to whether there is a conflict. Abella
is very different in that she does not segregate and applies patent unreasonableness to
everything.

Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650
Facts: VIA in bad financial state and dependent on federal subsidies to maintain existing level of
service. The feds made available money to buy new train cars. VIA spent money to buy used car
from Europe. The rail cars not accessible to persons w/disability—less accessible than existing
cars, but via justified by their cheap cost, and refurbishments to make acceptable access. Council

33
for Canadians w/disabilities tried to stop purchase. Canadian Transportation Agency ordered VIA
to make changes to a number of their cars, to make them accessible to normal sized wheel
chairs-- re-fit rail cars in order to remove ‘undue’ obstacles to disabled persons.
Canadian transportation agency has regulatory authority over Canada’s transportation network
(Licensing of air and rail carrier, resolving complaints b/n travelers and airlines, . . . removal of
undue obstacles to persons with disabilities who travel on air/rail). Under Part V of the CTA, the
Agency must identify — and order appropriate remedies for — undue obstacles to persons with
disabilities in the transportation context in a manner that is consistent with the approach to
identifying and remedying discrimination in human rights law. 
VIA said refurbishments too costly and appealed to FCA:
FCA: Agency’s decision was PU; referred the matter back to the Agency for reconsideration .
FCA concluded that the Agency’s ID of undue obstacles to the mobility of persons with
disabilities was reviewable on the PU standard, but that the Agency’s interpretation of its
jurisdiction under s. 172 of the CTA was reviewable on the standard of correctness.  Agency was
correct to conclude that it had jurisdiction under s. 172 to proceed with CCD’s complaint, but
disagreed that the obstacles in the Renaissance cars were undue— decision was made without
considering VIA’s entire network, the interests of non-disabled persons, and the interests of
persons with disabilities other than personal-wheelchair users.  FCA also disagreed that there was
no evidence on the record to support VIA’s view that its existing network was able to address
obstacles in the Renaissance cars.  Having identified the modifications it thought necessary, the
Agency had violated VIA’s procedural fairness rights by failing to give VIA an adequate
opportunity to respond to its requests for cost and feasibility information.

VH: what’s an undue obstacle, and what is reasonable accommodation; the adjectives mask
complex series of q that relate to costly refiguring to make stuff accessible
Issue: How should P & F approach be applied to decisions of transport agency re HR and
jurisdiction, what level of JR, and should courts segregate the questions for JR? Can agency hear
complaint by group before specific situation arose (jurisdictional Q).
Cost concerns: how much will it cost passengers, taxpayers, how many will lose access when it
has to cut services. How much should courts play role in allocating scarce public resources?
 Are these not better made by civil servants, and then accepted or rejected by
ministers
 Agency of civil servants who work in transit --there needed to be a separate agency to
determine issues of discrimination and reasonable accommodation
Held: M, Abella: The appeal should be allowed and the Agency’s decisions restored. [100] It’s a
single, non segregated deferential standard of review of PU applicable to Agency’s decision as
whole (including q of how undue obstacle and reasonable accommodation interpreted).
[100] “The Agency is responsible for interpreting its own legislation, including what that
statutory responsibility includes. The Agency made a decision with many component parts, each
of which fell squarely and inextricably within its expertise and mandate. It was therefore
entitled to a single, deferential standard of review.”

R: Required interpretation of agency’s own enabling statute re undue obstacle and reasonable
accommodation. Rejects dissent’s distinction b/n agency’s expertise in transportation policy and
in human rights- can apply practical experience to HR principles; parliament intended these
issues to be resolved by transportation agency -- Under s. 172 of the CTA, Parliament gave the
Agency a specific mandate to determine how to render transportation systems more accessible to
persons with disabilities. Although an HR aspect, Q of how and when the Agency exercises its
HR expertise w/in mandate conferred on it by Parliament.  Agency made a decision with many
component parts, each of which fell squarely and inextricably within its expertise and mandate. 

34
Court shouldn’t reduce Agency role to mere fact finding. Where an expert tribunal has charted an
appropriate analytical course for itself, with reasons that serve as a rational guide, a reviewing
court should not lightly interfere with the tribunal’s interpretation and application of its enabling
legislation.  Here, the Agency interpreted its authority to proceed with CCD’s complaint under
s. 172(1) in a manner that is rationally supported by the relevant legislation.  It also defined the
analytical process to be followed in identifying undue obstacles in the federal transportation
network in a way that is supported by the CTA and human rights jurisprudence.  Viewed as a
whole, the Agency’s reasons show that it approached and applied its mandate reasonably. VIA
did not meet its onus of establishing that the obstacles created by its purchase of the Renaissance
cars were not “undue”.  The Agency’s analysis or decision was not unreasonable; in particular,
there was nothing inappropriate about the factors it did, and did not, rely on.

Dissent: Qs of jurisdiction and HR should be segregated. When the P&F approach applied,
despite right of appeal and lack of PC, correctness is the standard of review of the Agency’s
jurisdiction to adjudicate CCD’s application and the Agency’s determination of the applicable
human rights law principles in the federal transportation context. Agency did not exceed
jurisdiction but made error of law w.r.t test for undueness of obstacle--failed to consider cost of
refurbishments/remedial issues and the impact on VIA b/c didn’t balance interest of the wheel
chair users w/other interests.
1. no privative clause and stat right of appeal; 2. agency no greater expertise than court; 3. Qs of
jurisdiction and HR are pure Qs of law, Correctness; 4. Although broad and pervasive jurisdiction
under Part V of the CTA Adjudication re jurisdiction and HR not explicitly w/in mandate.

Why different standard of review?

Deschamps & Rothstein JJ:
“segmentation of a decision is appropriate in order to ascertain the nature of the question before
the tribunal and the degree of deference to be accorded...‘Subjecting all aspects of a decision to a
single standard of review does not account for the diversity of questions under review and either
insulates the decision from a more exacting review where the pragmatic and functional
considerations call for greater intensity in the review of specific legal questions, or subjects
questions of fact to a standard that is too exacting.”
Prof: the segregation is taking place not between these two questions of law, but between these
two questions, on the one hand, and whatever else was decided by the agency (what this other
question or set of questions might be, the dissent does not say, but it presumably involves a range
of factual, discretionary, and probably legal issue that were all entitled to deference in the view of
the dissent), on the other. The dissent separated out two questions of law (one jurisdictional,
involving whether the agency has jurisdiction where the applicant has not actually experienced
the obstacle in question, and the other involving human rights principles- we might say a quasi-
constitutional legal question - ie the meaning of 'undue' and 'obstacle' in the federal transportation
context). It did so because it was segregating both of these questions from the wider decision
made by the agency, in order to apply to a correctness standard to those questions.

Applying the Standard

Less Deference (Correctness)

Correctness on Questions of Law

• court substitutes own view; emphasis on statutory interpretation
• ‘little or no deference’/ ‘exacting review’ (Dr Q [2003]); ‘significant probing or
testing’ (Southam [1997])

35
Re Reddall and College of Nurses of Ontario [1981] (Ont. Div. Ct. & Ont CA)
*Case is pre P&F approach and factors;
*Right of appeal on findings of fact; question of fact; this case is part of “correctness review”
chapter
Facts:
 Redell was a nurse; inquiry into her competence
 Disciplinary Committee decided she was incompetent
 Hospital terminated nurse’s employment following her difficulties working in an intensive
care unit
Judicial History:
 Disciplinary committee of Ontario College of Nurses found Ms. Reddall unfil to practice on
basis that her errors “endangered the life of patients” but did not hear expert evidence on this
 Ont. Div. Ct. upheld decision in deference to the committee’s expertise
 Ont. CA overturned on basis that the seriousness of Ms. Reddall’s failings were not made out
on the evidence
Issues:
 Key issue for court was not about serious errors made by nurse but whether the errors were
sufficiently serious to put patients at risk
Analysis:
 Court relies on right of appeal and applies Standard of Correctness
 Considers section 13(2) of the Health Disciplines Act
 Disciplinary Committee did not call any expert evidence to determines if errors rose to the
level of putting patients at risk; endangering live of patients
 No detailed record
 However, Committee allowed to rely on its own expertise and not call outside experts
 Majority of committee is made up of trained experts and they are in a better position to judge
the seriousness of a nursing error than court
 Div. Ct. says legislature committed the responsibility of disciplinary matters to members of
profession
Court of Appeal
 Court noted that Reddall has performed well in other areas of nursing outside of intensive care
 Evidence not on record for finding that Reddal endangered the lives of patients assigned to her
care
 Committee entitled to rely on its expertise in assessing evidence but the evidence has to be
before it before it can assess it
Dissent: None
Held:
 Reid J. in the end defers to Committee and upholds decision of disciplinary committee
 Court of Appeal overturns decision by Reid J.; seriousness of errors of not made out on record
and penalty overturned
Case in Context:
 Compare to Dr. Q, findings in that case were also factual and factual findings lean towards
deference and McLachlin J. applied reasonableness standard

Correctness on “Jurisdictional” Questions

• jurisdictional questions are questions of law: no administrative agency may act
beyond the bounds of its powers as defined by the legislature

36
 • but… (1) the legislature may wish to give an agency, and not the courts, the
power to determine aspects of the agency’s jurisdiction, and (2) courts may
contort policy decisions that they dislike into ‘jurisdictional’ questions merely to
justify a correctness standard (see CUPE [1979]; dissent by Abella J in Lévis
[2007])
• ask: is this really a question beyond the intended scope of the administrative
body’s powers (including any statutory power to determine its own jurisdiction or
make discretionary decisions consistent with the purpose of the regulatory
scheme)?

ATCO Gas and Pipelines Ltd. v. Alberta [2006] 1 S.C.R. 140

This case stands in contrast to courts movement towards deference in areas of complex econ,
tech fields, etc.
Facts:
 Alberta Energy and Utilites Board sets rates for service suppliers in monopoly contexts.
 A company called ATCO supplies natural gas in Calgary. It’s a monopoly, only supplier in
Calgary. This is more economical b/c it requires just one set of pipelines and multiple
networks would be economically inefficient.
 Government intervenes and says we will let you be monopoly, but we will also intervene to set
rates to customers.
 Rate setting role given to Alberta Energy and Utilities Board which exists to “protect the
public from monopolistic behaviour and the inelasticity of demand while ensuring the
continued quality of an essential service.”
 ATCO applies to the Board to get approval to sell some of its lands and buildings in Calgary.
 In order to sell assets, it needs approval from the Board, which says only on the condition that
ATCO split the proceeds of sale between shareholders and customers.
 ATCO disagrees with Boards decision—appeals and is successful at Alberta Court of Appeal
At SCC:
 Issue: Whether or not the Board has the jurisdiction to allocate a portion of the net gain of the
sale of a now discarded asset to the rate payers [as per GVH: framed as a jurisdictional
question; could be asked differently in light of public interest and the statutory scheme; GVH
asks what did the legislature really mean when it gave the board its powers?]
 Court looks at 3 different Acts of which 2 are significant here.
 Gas Utility Act:
 No owner shall sell its property without approval of the board.
 The board may do any of the following: make order, impose conditions on
that order that the board considers necessary in the public interest.
Decision: Binnie (dissent):
 This involves the balancing of different interests, complex economic factors.
 Concern about skimming off of surplus to areas outside of the regulatory framework.
 The stat authority of the board jurisdiction that is complementary to the rates issue. The
board could have denied the sale outright.

37
 It is not necc to ground the power of the board in this implied way b/c the language of the stat
indicates the legislature’s intention that it is up to the board to deicide what it is necessary to
do in the public’s interest.
 The board is better positioned than a court to determine the public’s interest in this field
(EXPERTISE).
 Patent Unreasonableness is the appropriate standard (but he even would have upheld on
reasonableness standard.
Bastarache (Majority):
 Correctness standard.
 Characterizes issue as a jurisdictional as opposed to a polycentric one.
 The board had no jurisdiction under relevant statutes to attached conditions to sale of assets.
 Based on strict (GVH: dubious) reading of the statute.

GVH: the above reasons demonstrate revision to older approach.

 (1) There is a right of appeal in the statute, but it is limited to jurisdiction and law, and
requires leave of the court.
 There is a private clause which states every action ordered of the Board is final
(STRONG, but downplayed by Bastarache, b/c this is a decision of jurisdiction)
 (2) The board was not using it’s general expertise in this decision, b/c the nature of the
problem as jurisdictional neutralizes their expertise.
 (3) The provisions do not lay out a specific power to allocate the proceeds from a sale
 (4) The terms of the statutes in question can lead to only one conclusion. [GVH: thinks
this is bullshit].
 (5) The boards “seemingly broad powers” need to be understood in context [GVH: this
obviously requires interpretation].
o According to GVH: Para 62-68: straw man strategy!

o Bastarache cites Mullan: an agency can’t go beyond the confines of its jurisdiction, but
Bastarache fails to note that legislatures can delegate to admin body to determine the scope of
their mandate.
o GVH: this was a discretionary policy choice.

o GVH: Bastarache does not fully understand the risks that monopolies face opposed to other
free market operations.
o GVH: compare with Bastarche’s reasons in Pushpanathan (text p.794).

Canada (Human Rights Commission) v. Canadian Airlines International 2006 (SCC)

Facts:
 The flight attendants' union launched a complaint against the employer airline under s. 11 of
the Canadian Human Rights Act, claiming that the employer discriminated against flight
attendants, a predominantly female group, by paying them differently than mechanics and
pilots, who were predominantly male.
 Canadian HR Act, ‘work of equal value in the same establishment’
 Are flight attendants in ‘the same establishment’ as pilots and mechanics?
 Binding Guidelines of Canadian HR Commission deem employees to be in the same
establishment where ‘subject to a common personnel and wage policy’
Analysis:

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  Canadian HR Tribunal agreed with Air Canada that flight attendants not subject to common
policy because they have a distinct collective agreement
 Fed Court of Appeal found the appropriate standard of review to be applied to the Tribunal's
decision is correctness because the Tribunal was engaged in an issue of statutory
interpretation; curial deference does not apply to a tribunal's interpretation of human rights
legislation.
 SCC Agree with FCA; decide Tribunal should be overturned; all 3 groups in same
establishment and investigation should continue
 Court said it would interpret terms in Act; traces origin of term in Act; (methodology is
important not the strict facts)
 “Broad interpretation of human rights law” b/c narrow interpretation may sterilize them;
 Court emphasizes role of tribunal but says this is part of larger legislative scheme; object to
ameliorate wage discrimination;
Ratio:
 SCC overturns HR Tribunal, concluding that Air Canada treats all of its employees as part of
a single, integrated business under a common personnel and wage policy; collective
agreements not determinative
 backed by liberal construction of HR legislation and legislative history, but SCC gives no
textual analysis of the statute and makes no reference to the pragmatic and functional
approach
Note:
Similar to Prof’s observations regarding Trinity Western University & Via Rail:
 court substitutes own view on application of law to fact; engages in re-weighing of factors
that influenced the decision; steps into the agency’s discretionary or policy-making role
 look for questions of mixed law & fact that a court treats as a question of law in order to
justify a correctness standard

More Deference (Reasonableness & Patent Unreasonableness)

Reasonableness on Questions of Mixed law and Fact
• very common; eg where expertise and core mandate weigh against correctness,
but statutory right of appeal weights against patent unreasonableness
• eg Southam [1997] (whether daily and community newspapers in same market)
– establishment of reasonableness standard:
– courts should not disregard reasoning of the tribunal, re-weigh factors, or
substitute own opinion
• see also:
– Ryan [2003] (disbarment of lawyer)
– Lévis [2007] majority (existence of ‘special circumstances’ weighing
against dismissal]

Reasonableness on Questions of Fact

• eg where nature of question calls for deference, but other factors – statutory right
of appeal, lack of relative expertise in adjudication of rights and interests – call
for less deference
• eg Dr Q [2003] (findings of credibility by Inquiry Committee)

39
• Usually calls for deference on questions of fact; starting point but even factual nature
of question can be outweighed by other factors; see Dr. Q;
• Very good example of how to apply reasonableness on questions of fact

PU On Questions Of Law

• eg strong privative clause supported by specialized expertise

• CUPE [1979]:

‘… was the Board’s interpretation so patently unreasonable that its construction cannot
be rationally supported by the relevant legislation and demands intervention by the court
upon review?’
see also:

– VIA Rail [2007] majority (remedial order re accessibility)

– ATCO [2006] dissent (‘necessary in the public interest’ in enabling
statute)

• CUPE 1979; statutes are open to different meanings; show deference unless an
interpretation is patently unreasonable
• PU created in 1979 and 20 years later “reasonableness” standard comes into play; did
JI move PU to a farther end of the spectrum of deference
• As in Dr. Q. the CJ characterized PU as less deferential than JI in Southam; so is PU
more broadly applicable; easier to come to terms with;
• Difficulty of extricating law from questions of discretionary policy making this is the
basis of difference of view in ATCO and VIA Rail; gives rise to judges wanting to
segregate questions

PU on Questions of Mixed Law and Fact

• difficult to pin down meaning of patent unreasonableness as opposed to

reasonableness in this context
• also, questions of law often intertwined with factual determinations involving
application of expertise and balancing of policy considerations

– eg Baker [1999]; ATCO [2007] dissent: more questions of opinion/

discretion than questions of mixed law and fact
• eg Suresh [2002] ((1) danger opinion and probably on (2) risk of torture upon
refoulement)
• eg CUPE [1997] (remedial order by Essential Services Board)

• In Baker when P&F approach expanded to cover discretionary questions h-d applies
reasonableness standard
• Suresh; two questions; security risk and whether deportation raised danger of
torturer; PU is applied to security risk and PU applied to torture
• Re-weighing of factors not appropriate where there is a broad discretion given to
minister except where discretion is exercise in capricious or vexatious manner;

40
• Bad Faith or Improper Purpose Doctrine; see Roncarelli
• In Baker; there were guidelines put in place fro arriving at decisions on H&C grounds
and so in this context it was appropriate to re-weigh factors
• H-D’s decision in CUPE, 1997; refusal of overtime by workers on holiday weekend;
she applies a PU standard; her methodology; she reiterates that the goal is not to
review decision on its merit but to decide if decision is patently unreasonable
• When might a particularly remedy be PU?
• #1 When remedy is not rationally connected to aims of statute
• #2 Can be more than one purpose in a statutory scheme; upholding collective
agreement process and protecting public services
• #3 Wording was very broad in order; extended to too many people; wording should
be more targeted; should be time limitation on order

PU on Questions of Fact

Toronto Board of Education [1997] 1 SCR 487 (Ont)

• Cory J: ‘no evidence’ is PU, insufficient evidence is not

• after reviewing the evidence, Cory J concluded there was no evidence to support
finding that misconduct was temporary; therefore = PU

Criticisms of the Standard of Review

• criticisms by Lebel J in Toronto v CUPE [2003] 3 SCR 77:

• why apply all factors of the P and F approach where one or more factors clearly
call for correctness standard?
• how distinguish PU from correctness?
– magnitude of the defect or obviousness of the defect?
– proposes that with PU the courts must not seek the ‘right’ or ‘best’ answer
• how distinguish PU from reasonableness?
both recognize prospect of statutory ambiguity
– are there degrees of irrationality or degrees of obviousness?
• criticisms by Lebel J cont.

‘While a defect may be readily apparent because it is severe, a severe defect will not
necessarily be readily apparent; by the same token, a flaw in a decision may be
immediately evident, or obvious, but relatively inconsequential in nature’ (para 123)

• calls for a single deferential standard (eg VIA Rail [2007] majority)
• nevertheless, for now the P and F approach remains the methodology based on
three standards of review

41
Jurisdiction & Constitutional Challenges
• can administrative bodies declare statutes inapplicable on constitutional or human
rights grounds?

 Cooper [1996]
 Martin [2003]; Paul [2003]
 Tranchemontagne [2006]

• should claims that an administrative decision-maker has infringed an individual

right be resolved via Charter or administrative law principles?

 Multani [2006]

 Whether or not AT had authority or jurisdiction to hear a constitutional challenge or a

challenge based on human rights law if challenge accepted it would lead to provision
of statute’s own enabling statute being inapplicable
 Yes. Tribunals can be given authority by legislature to override

 #2 What happens when a claim against what an AT has does relies on Charter
arguments or common law arguments substantively
 Does the standard of review in admin law have any role to play in resolving Charter
claim in particular looking at section 1
 Should deference be shown
 NO Standard of Review analysis has no role to play in Section I analysis

Cooper v. Canada (Human Rights Commission) [1996] 3 SCR 854

* The ability of administrative tribunals to determine the constitutional validity of their
enabling legislation
*Jurisdiction and constitutional challenges

Facts:
 Bell and Cooper were airline pilots with Canadian Airlines
 At 60 they were informed by Canadian they would have to retire in accordance with their
collective agreement
 Bell and Cooper objected; they argued that this constituted age discrimination since most
Canadian employees did not have to retire until 65
 Commission said it was bound by McKinney, mandatory retirement policies are justified
under s. 1 analysis
Judicial History:
 Commission appointed an investigator; found Commission to be bound by McKinney (s. 9(a)
of the Ontario Human Rights Code, which provides for a mandatory retirement policy
amounts to discrimination on the basis of age, a violation of s. 15 of the Charter, but is
justified under s. 1)
 Federal Court and Federal Court of Appeal both rejected appellants’ claims
Issues:
 Does the Canadian Human Rights Commission or a tribunal appointed by it to investigate a
complaint have the power to determine the constitutionality of a provision of their enabling
statute, the Canadian Human Rights Act?

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  Does the Commission, and in turn a tribunal appointed under the Act, have the power to find
a provision of the Act unconstitutional and treat it as inoperative? (s. 15(c) of the Act, which
provides that is it not a discriminatory practice for an individual to be terminated from
employment because that individual has reached the normal age of retirement for employees
in similar positions?)
Analysis:
Laforest J (writing for the majority)
#1. The power to consider questions of law can be bestowed on tribunals either explicitly or
implicitly by the legislature; Here, no provision in the Act that expressly confers on the
Commission a general power to decide questions of law
 Did Parliament implicitly grant the Commission jurisdiction to decide questions of law?
 In deciding whether a tribunal/commission has jurisdiction over parties, the subject matter
before it, and the remedy being sought there must be consideration of practical matters, such
as:
1. Composition and structure of the tribunal
2. Procedure before the tribunal
3. Appeal route from the tribunal
4. Expertise of the tribunal
 Consideration of these practical matters will provide an insight into the mandate given to a
tribunal by the legislature
 Must also consider whether there are pragmatic and functional policy concerns that argue for,
or against, a tribunal having constitutional competence

#2. Cdn HR Commission (and by extension Cdn HR Tribunal) lacks authority to determine
constitutionality of its enabling statute – HR Commission is not an adjudicative body; practical
considerations weigh against implying such authority
 The striking down of s. 15 (c ) by the Commission (which is essentially what a referral of the
complaint to the tribunal would amount to says Laforest J) would be an assumption of an
adjudicative role by the Commission for which it has no mandate
 Commission performs a screening analysis (not adjudicative) on cases to decide if under the
provisions of the Act an inquiry is warranted having regard to all of the facts
 Practical Considerations Re: Commissions and Tribunals
o Commission not bound by traditional rules of evidence; can receive unsworn evidence,
hearsay evidence and simple opinion evidence/ The ability of a HR Tribunal to accept
any evidence it sees fit is suitable for determining a human right complaint but not the
constitutionality of a legislative provision
o Inappropriate for deciding constitutional validity of a legislative provision
o Aim of the Commission/Tribunal is to deal with human rights complaints in an
accessible, efficient and timely manner and this would be disrupted if parties could
raise constitutional issues/ The added complexity, cost and time involved in hearing
constitutional questions would erode the primary goal in creating HR tribunals: the
efficient and timely adjudication of human rights complaints
o Lack of expertise; a human rights tribunal, unlike a labour arbitrator or labour board,
has no special expertise with respect to questions of law/ Human Rights Tribunal does
not have any special expertise except in factual determinations
o Any efficiencies that are gained by avoiding the court system will be lost when there is
inevitable judicial review in the Federal Court
 Since HR Commissions do not have the power to decide questions of law then logically HR
Tribunals could not have the power to decide constitutional validity b/c the complaints have
to start with the Commission

43
TEST:
 Two-Part Test: re: an administrative tribunal’s authority to determine constitutional
challenges:
1. Does the statute give the tribunal, expressly or implicitly, the authority to decide
questions of law?
2. If so, does the statute remove, expressly or implicitly, the authority to decide
constitutional challenges?

Lamer C.J. (concurring)

 Parliamentary Supremacy; Constitutional Challenges are the Domain of the Court;
legislatures cannot delegate such authority to administrative bodies, whether expressly
or implicitly
 Administrative tribunals do NOT have jurisdiction over the Charter – (this portion of
decision overturned by Martin – above test still good)
 Lamer says if they did, this would invert the hierarchical relationship of parliamentary
democracy, i.e., the executive (which appoints tribunals) would be able to challenge the
decisions of democratically elected legislatures
 Instead of being subject the laws of the legislature, the executive would be able to defeat
them
 Lamer cites Cuddy Chicks:
o …the Ontario Labour Relations Board (OLRB) held that a provision of its enabling
legislation which barred agricultural workers from access to collective bargaining
violated the equality rights guaranteed by s. 15 of the Charter. That decision was
upheld by this Court. The effect of the decision, of course, was to expand the
jurisdiction of the OLRB to cover a class of persons whom the legislature had
decided should not have the right to collectively bargain. Instead of the legislature’s
determining the jurisdiction of the OLRB, the OLRB determined its own jurisdiction
 No implied intention in enabling statute to consider Constitutional challenges b/c Charter did
not exist when many statutes were enacted
 Illogical premise that legislatures intended for tribunals to overturn laws based on being
unconstitutional b/c legislatures would not enact laws they thought were unconstitutional

Dissent: McLachlin J.
 Statutory powers & duties of the HR Commission, and nature of the scheme, reveal an
implicit legislative intent to delegate such authority
 The Charter is not some holy grail which only judicial initiates of the superior courts may
touch. The Charter belongs to the people. All law and law-makers that touch the people must
conform to it. Many more citizens have their rights determined by these tribunals than by the
courts (p. 928)
 Expressly statute does not give power to Commission but implicitly it has power;
Commission has duties that require it to have power to deal with general law questions
 All of the parties to the dispute agree that the HR Tribunal should have a role to play in
deciding constitutional challenges; why? Because the process “best achieves the economical
and effective resolution of human rights disputes and best serves the values entrenched in the
Canadian Human Rights Act and the Charter”

Decision:
 The Canadian Human Rights Commission has no jurisdiction under the Canadian Human
Rights Act to subject provisions of the Act to constitutional scrutiny
 The Commission is limited in its jurisdiction by the dictates of the Act

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  A tribunal appointed at the request of the Commission is also without jurisdiction to
determine the constitutional validity of provisions of the Act
*** While a tribunal may have jurisdiction to consider general legal and constitutional
questions, logic demands that it has no ability to question the constitutional validity of a
limiting provision of the Act.

Case in Context:
 Important to distinguish among a number of different things in this case:
o Majority: a tribunal may have jurisdiction to consider general legal and
constitutional questions but NOT the ability to question the constitutional validity
of its own enabling statute
o Lamer: There is an important conceptual difference between a Commission
interpreting its enabling statute in light of the division of powers (a constitutional
question) AND the Commission questioning the validity of that legislation in light
of the Charter
o Under the first example, the Commission is following the intent of Parliament, i.e.
to only operate within the confines of federal jurisdiction BUT in the second
example, the Commission would override laws created by legislatures by deeming
them unconstitutional in light of the Charter

Nova Scotia (worker’s Compensation Board) v. Martin [2003] 2 SCR

Distinguish from Cooper
At issue is the implied meaning of statute, and whether implicit intent to give power to
admin.body.
Facts: NS workers comp act excluded by worker’s compensation board b/c chronic pain was
excluded from both Worker’s Compensation Act (WCA) and Functional Restoration (Multi-
Faceted Pain Services) Program Regulations (provisions exclude chronic pain from the regular
workers’ comp system and instead of normal benefits offer a 4wk Functional Restoration
Program beyond which no further benefits are available). The two workers/appellants appealed
the decision to the Workers’ Compensation Appeals Tribunal, on the grounds that it amounted to
discrimination contrary to s. 15 of Charter. The tribunal held that the impugned provisions
violated s. 15 of the Charter and were not justified under s.1.
The Board challenged the appeal’s tribunal’s jurisdiction to hear Charter arguments.
The Court of Appeal found that the Appeals tribunal did not have the jurisdiction to determine the
constitutional validity, and that, regardless, the chronic pain provisions didn’t demean the human
dignity of the claimants and thereby didn’t violate s. 15 of the Charter.

Prelim Issues:
 Does the NS Workers Comp Appeal Tribunal, established under the WCA w/power to
decide whether worker unjustly denied compensation, have jurisdiction to hear a Charter
challenge?
VH: What’s the extent that workers comp scheme can compensate this condition that’s not
backed up by concrete evidence?—suspicions of malingering

Held: The appeal from the NSCA should be allowed. S. 10 B of the WCA and the Regulations in
their entirety infringe s. 15, and aren’t justified under s. 1. They are of no force and effect under s,
52 (1) of the Constitution (the supremacy of the constitution). The declaration of invalidity
postponed for 6 mo.

45
[40] Where the empowering legislation contains . . . express grant of jurisdiction/authority to
consider/decide questions of law arising under a legislative provision [jurisdiction] is presumed to
extend to determining the constitutional validity of that provision

Reasoning of Gonthier (unanimous)

 The statute expressly gives the tribunal the authority to decide questions of law relating to
the provision in Q; therefore, presumed to have the authority to apply the Charter (very
much against Cooper [47] “I am of the view that the ratio of the majority judgment in
Cooper is no longer good law”)
o [46] Unlike in Cooper, No need to draw distinction b/n general and limited
questions of law
Test to determine whether tribunal has jurisdiction to decide constitutional validity:
A: Establishing jurisdiction
1. The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to
decide questions of law arising under the challenged provision (and if so, presumed to have
concomitant jurisdiction to decide the constitutional validity of that provision)
(2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of
authority/empowering legislation.
(b) Implied jurisdiction must be discerned by looking at the statute as a whole. 

Relevant factors to imply jurisdiction include:

 the statutory mandate of the tribunal in issue and whether deciding questions of law is
necessary to fulfilling this mandate effectively;
 the interaction of the tribunal in question with other elements of the administrative
system;
 whether the tribunal is adjudicative in nature; -- while the presence of an adjudicative
process is an important factor in finding an implied power to decide questions of law, its
absence would not by itself be determinative
 and practical considerations, including the tribunal’s capacity to consider questions of
law (Practical considerations cannot override a clear implication from the statute itself,
particularly when depriving the tribunal of the power to decide questions of law would
impair its capacity to fulfill its intended mandate). 
(3) If the tribunal is found to have jurisdiction to decide questions of law arising under a
legislative provision, this  power will be presumed to include jurisdiction to determine
the constitutional validity of that provision under the Charter. 
B. Rebutting Jurisdiction
(4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the
presumption by
(burden lies on the party who alleges that the administrative body at issue lacks jurisdiction to
apply the Charter)
(a) pointing to an explicit withdrawal of authority to consider the Charter; or
(b) convincing the court that an examination of the statutory scheme clearly leads to the
conclusion that the legislature intended to exclude the Charter (or a category of questions that
would include the Charter, such as constitutional questions generally) from the scope of the
questions of law to be addressed by the tribunal.  Such an implication should generally arise
from the statute itself, rather than from external considerations.
VH: much harder test to show that tribunal doesn’t have jurisdiction than presumption from
implied jurisdiction in 1st part

Applying Test:

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1: NS legs. expressly gave tribunal authority to decide Q of law: Among other provisions, s. 252
(1) of Act, says tribunal may confirm, vary or reverse the decision of a hearing officer” exercising
the authority conferred upon the Board by s. 185(1) of the Act to “determine all questions of fact
and law arising pursuant to this Part”. S. 256 (1) provides for a further appeal to the Court of
Appeal “on any question of law”. Because there’s a right of appeal to tribunal on Qs of law, it’s
presumed that admin body then has right to decide Q of constitutional validity.
2: Even if no clear provision granting power to decide Q of law, this jurisdiction could have been
implied from the statutory scheme.
a. Tribunal’s mandate—the legislature wants the tribunal to be able to resolve conflicts:
[52] “… power to decide questions of law arising under the Act is necessary in order for the
Appeals Tribunal effectively to fulfill its mandate” Appeals Tribunal regularly decides questions
of law involving the interpretation of common law principles and statutes other than the Act, e.g.
the law of contracts, evidence, causation, employment, corporate relationships, conflicts of law,
administration of foreign workers’ compensation schemes, and motor vehicles, to name but a
few.  Denying it the authority to decide such questions would seriously impede its work and
threaten the access by injured workers to a forum capable of deciding all aspects of their case
b. the Appeals Tribunal is fully adjudicative in nature
[53] It’s independent of the board and under supervision of minister of justice (whereas board
under supervision of minister of labour). The Appeals Tribunal establishes its own rules of
procedure, can consider all relevant evidence, and records any oral evidence for future reference. 
Its members have the powers, privileges and immunities of a commissioner appointed under the
Public Inquiries Act, , including the power to summon witnesses, compel testimony, require
production of documents, and punish persons guilty of contempt; they also have certain powers of
entry
c. Under the Constitutional Questions Act, 1989, c. 89, and under s. 245(1)(d) of the Act, the AG
may intervene in any proceedings involving a constitutional question, as was done here,
which diminishes the relative disadvantage of administrative tribunals as compared to courts by
relieving private parties or administrative agencies from the burden of defending the validity of
legislation
d. The CA wrong to take into consideration the backlog of cases that had accumulated at the
Appeals Tribunal prior to the 1999 amendments. Practical considerations of this nature, while
they may in certain circumstances be helpful to confirm the legislature’s intent, are of little
weight when faced with clear legislative intent, arising from the statutory scheme as a whole, to
confer upon an administrative body the power to consider and decide questions of law.  Such
considerations “can never supplant the intention of the legislature”
1. Appeals Tribunal’s jurisdiction to decide questions of law arising under the challenged
provisions is presumed to include the authority to consider their constitutional validity
2. Presumption is not rebutted-- no clear implication arising from the Act that the legislature
intended to exclude the Charter from the scope of the Appeals Tribunal’s authority. 

Why court modifying from Cooper?

1. Constitutional supremacy
 Constitution supreme law of land, and must be included in a question of law—
consistency of a provision w/the constitution is a fundamental question of law.
 Canadian should be allowed to bring a Charter challenge in the most accessible forum
(tribunals and commissions)
2. Charter not “in a vacuum”
 Charter disputes being dealt w/in context of specific scheme—the tribunal best familiar
and best to gather evidence to provide to reviewing court re constitutionality.

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3. Admin tribunal Charter-based decisions are subject to judicial review on a correctness
standard, and don’t undermine the role of courts.
 If tribunal makes error of law, the decision can always be appealed to superior court. The
authority to determine constitutionality allows a tribunal to decide that a provision is
inapplicable, but not to declare the law invalid. The tribunal’s finding doesn’t establish
any precedent, but is limited to that case—it’s a finding that’s very different from a
finding of invalidity by a court.
VH: is this distinction useful, and does it stand up? They’re both declaring invalid, and to say
that it’s invalid will probably set a precedent for other admin bodies; would another admin body
come to a different opinion?

Paul v. British Columbia (Forest Appeals Commission) (2003)

Broad Issue:
This case is basically an extension of the MacLachlin’s dissent in Cooper (1996) and the majority
decision in Martin (2003). This decision was released concurrently with Martin as it basically
represents the application of Martin (2003) to the realm of aboriginal rights.

The facts in this appeal and in Nova Scotia (Workers’ Compensation Board) v. Martin,
[2003] 2 S.C.R. 504, 2003 SCC 54, released concurrently, have given this Court the
opportunity to reappraise the law respecting the jurisdiction of administrative tribunals
to apply the Constitution (para. 8). 
In Martin (2003), the SCC said the following:
Tribunals that have jurisdiction whether [1] explicit or implied to determine questions
of law as applicable to that particular provision, then that tribunal is also presumed to
have constitutional jurisdiction to determine the validity of that provision.
[But 2,] the second part of the test can be rebutted if statute provides that the tribunal
cannot deal with constitutional issues while although able to deal with general law.
There must be clear legislative intent here.

Specific Issue in Paul (2003):

Whether the Provinces can constitutionally confer on administrative tribunals the power to
determine questions of aboriginal rights?

Facts:
 A conflict between an administrative prohibition of cutting down Crown timber (Forest
Practices Act) vs. aboriginal rights and title as mandated by the Constitution.
 The Ministry seized 4 logs of Crown timber cut down by an aboriginal guy who says he’s not
prohibited from cutting trees by virtue of s. 35 of the Constitution.
 Lot of blah blah about Interjurisdictional Immunity, incidental effects, etc.
SCC:
 Bastarache: confirms that constitutionalized aboriginal rights should be treated like other
constitutional rights (Martin 2003). If the admin tribunal can consider question of law then
they can consider whether their enabling statute violated the Constitution/Charter.
 Here, the statute gives the Commission power to have hearings as to fact, law, and
jurisdiction. There is also a right of appeal. Those two provisions are enough to conclude that
the Commission had authority to deal with a general question of law:

48
 In this case, s. 131(8) of the Code permits a party to “make submissions as to facts, law
and jurisdiction”.  It is therefore clear that the Commission has power to determine
questions of law. (para 8).
the judge must verify whether there is a clear implication arising from the statutory
scheme that the power to decide questions of law was meant to exclude the legal issues
under review (para. 8).

 There was no explicit rebuttal in statute found to exempt Aboriginal or Constitutional rights.
Thus concluding:
There is no persuasive basis for distinguishing the power to determine s. 35 questions
from the power to determine other constitutional questions, such as the division of
powers under the Constitution Act, 1867 or a right under the Charter.  Section 35 is
not, any more than the Charter, “some holy grail which only judicial initiates of the
superior courts may touch” (Cooper, supra, at para. 70, per McLachlin J. (as she then
was), dissenting) (para 36).

Tranchemontagne v. Ontario (Director, Disability Support Programme), [2006] 1

S.C.R. 513
Facts:
 Application by two individuals for benefits under ODSP
 Denied on the basis they were alcoholics – legislature had removed persons who sole
disability was alcoholism – directing instead that those person were entitled only to support
within the general welfare system – which of course is much less than ODSP support
 Argued releavit provsions in the act were invlaid – b/c violated HR Act – discriinnation
against people with disabilities
Issue:
 Does particular body have authority to apply human rights law
 does Ontario Social Benefits Tribunal have authority to apply the Ontario Human Rights
Act?
Analysis:
Disability Support Program Act, s 67(2):

‘(2) The Tribunal shall not inquire into or make a decision concerning,
(a) the constitutional validity of a provision of an Act or a regulation; or
(b) the legislative authority for a regulation made under the Act.’
 Judges agree on first part of test – clearly removed power to resolve Charter issues
 Disagreed on second part – has the provincial legislature removed the authority to resolve
HR challenges

SCC split 4/3

Majority:
 This provision does not extend to HR Act
 There is an important difference between the invalidity of the statute and the inapplicability
of a statute in a particular case
 Final decision of director can be appealed to the tribunal, then statutory right of appeal to div
court on q of law – as a result the tribunal has authority to apply q of law

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  HR commission has right to decline to hear in preference of a tribunal better suited, but this
tribunal has not been given that right to decline
Dissent:
 This provision doesn’t just remove constitutional authority but creates a “category of
questions of law”. The category includes any legal questions in which the answer might
result in the tribunal finding a provision of its own legislation inoperable. Therefore it carries
on to the HR Act b/c it may raise a legal q that would make a provision in the Act
inapplicable
Ratio:
The SBT had jurisdiction to consider the Human Rights Code in determining whether T and W
were eligible for support pursuant to the ODSPA. Statutory tribunals empowered to decide
questions of law are presumed to have the power to look beyond their enabling statutes in order to
apply the whole law to a matter properly before them.
Note:
 Prof thinks disagrees with Dissent regarding removal of a category of law – provision says
“constitutional” then it says “legislative authority” – textually relatively clear – it is limited
to Constitution when it is contained in a provision of an act
 However, thinks Abella makes some good points with respect to the nature of decision
making by tribunals, including that HR decisions are as complex as Constitutional questions
with far-reaching implications

Multani v. Commission Scolaire Marguerite-Bourgeoys [2006] 1 S.C.R. 256

*What do we do when someone characterizes their complaint as a Charter issue when they
appear before a Tribunal? Does Admin Law Standard of Review Apply or S. 1 Analysis?
*Jurisdiction and constitutional challenges

Facts:
 Decision of school commissioners to prohibit Sikh student from wearing kirpan on safety
grounds; prompts Charter/HR challenge
 School’s Code de vie (code of conduct) prohibits carrying of weapons
 Father and son offered to wrap kirpan in cloth and secure it under clothing
 School board accepted this as reasonable accommodation
 Governing board, however, refused to ratify proposed accommodation measure and instead
proposed the student wear harmless symbolic kirpan
 On review, the Council of Commissioners of the school board endorsed the governing
board’s position
Issues:
 Should court apply Charter analysis (s. 1 proportionality) or administrative law principles
(reasonableness standard?)
 Father contested decision under Quebec Charter of Human Rights and Freedom and
Canadian Charter (freedom of religion; equality, ss. 2 and 15)
Analysis: Charron J Majority
 Administrative law standard of review does not apply in Charter cases
 Complaint is based entirely on constitutional freedom and infringement of freedom of
religion
 The Charter applies to the decision of the Council of Commissioners despite the decision’s
individual nature; council is a creature of statute and derives its powers from statute
 Since the legislature cannot pass a statute that infringes Charter, it cannot, through enabling
legislation do the same thing but delegating a power to act to an administrative body
 Charron J relies on reasoning of Lamer J in Slaight Communications:

50
 o Where the legislation pursuant to which an administrative body has made a
contested decision confers a discretion (in the instant case, the choice of means to
keep schools safe) and does not confer, either expressly or by implication, the power
to limit the rights and freedoms guaranteed by the Canadian Charter, the decision
should, if there is an infringement, be subjected to the test set out in s. 1 of the
Canadian Charter to ascertain whether it constitutes a reasonable limit that can be
demonstrably justified in a free and democratic society. If it is not justified, the
administrative body has exceeded its authority in making the contested decision
 Admin law standard of review not relevant;
 If appeal had concerned the review of an administrative decision based on the application
and interpretation of the Canadian Charter it would be necessary to apply the correctness
standard following Nova Scotia Workers Compensation Board v. Martin
 The Court of Appeal erred in applying reasonableness standard
Dissent:
 Deschamps and Abella JJ: administrative bodies should be subject to administrative law
principles and not the Charter when they apply ‘norms’ in specific cases
 Do not accept that “correctness standard” following Martin applies in all cases where
tribunals must consider decisions contested under Charter or human rights legislation
 Point to cases such as Trinity Western in which an administrative law approach was used to
review decisions made by educational institutions/authorities; these decisions involved
“issues that unquestionably concerned values protected by the Charter”
 Standard of Review: court must determine the standard of deference to be applied to the
school board’s decision which had an impact on freedom of religion, right to equality, right
to physical inviolability
Applying P&F Analysis:
o Education Act contains no privative clause limiting intervention by courts
o However, authority to establish rules in schools is clearly conferred on governing
board
o Internal appeal mechanism indicates legislature wanted to leave decision making
power to local stakeholders
o School board needed to consider right of students to be safe in light of each
school’s particular circumstances and so fact specific
o School board has greater expertise than a court in assessing safety of schools
 Standard of Review = Reasonableness
 By disregarding the right to freedom of religion and by invoking the safety of school
community without considering the possibility of a solution that posed little or no risk
(wearing the kirpan under clothing) the school board made an unreasonable decision
Why Admin Law is more Applicable Than S. 1 Analysis:
 A tribunal determines an individual’s rights in relation to a particular issue
 A decision made by a tribunal is not a law or regulation but is instead the result of a process
provided for by statutes and by the principles of admin law in a particular case
 A law or regulation, on the other hand, is made by the legislature.
 The norm established is not limited to a specific case but is general in scope
 Establishing a norm and resolving a dispute are not usually considered equivalent processes
 The Oakes Test was developed to assess legislative policies based on an analysis of societal
interests
Decision:
 Total prohibition against wearing kirpan and not adopting the reasonable accommodation
measures constitutes an infringement of freedom of religion
VH:

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  How do you distinguish decision making that should be subject to Charter analysis versus
admin law analysis?
 Court suggests that if decision establishes a “norm” than subject to Charter; a norm is
something that creates a general rule; the applicability of a provision is not a norm but
particularized
 VH: But lots of admin decisions give rise to norms
 Why are admin law and the Charter butting up against each other? Because of the trend to
expanding the role of administrative agencies in society; wider role, greater authority, greater
jurisdiction; trend of courts for greater deference to admin agencies
 There is an overlap of rights protection in the Charter and rights protection in statutes
(upheld by Tribunals) ; one source of rights is the Charter, the other is statutory

Procedural Fairness
Why would we have courts overturning decisions just on procedural grounds?

 Concern for procedural standards; a link between substance decision and the way in
which decision is made
 An insistence on a particular type of procedure that the content of the decision is not
just legal or rational, or reasonable in narrow sense but represents the best choice, or
a good choice in a range of alternative open to gov’t body
 No guarantee that happy state of affairs will be achieved but some likelihood if fair
process is followed
 Intrinsic value; individuals are who effected by decision are more likely to accept
decisions if they feel they have been treated with attention and respected by decision
makers
 All of us as citizens are morel likely to accept to government processes as a whole if
they are blocked or deterred from acting in capricious way
 Criminal trial by jury; paradigm of fairness
 Stigma of criminal conviction; rigorous standard of fairness applies including that
accused know in detain the case against him or her; has ample time to prepare
argument; counsel have extensive rights to cross examine; everything is subject to
strict rules of evidence; judge and jury approach tasks without pre-existing bias to
guilty verdict;
 These all represent procedural fairness

 Procedural fairness has a role to play wherever consequences to an individual but

fairness will vary widely;
 Way to maximize likelihood that decision is correct in its outcome
 Unfeasible to subject all aspects of gov’t decision making to rigours applied to
criminal trial and decision making
 Must be gov’t feasibility and efficiency

 Separation of powers; determination of guilt in criminal trail is a judicial function in

which court’s responsibility is to decide merits of case before it

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  Decision making allotted to the executive so not same legislative expectation that this
decision making not follow exactly the procedural fairness followed in criminal trial
 Much executive decision making deals with more trivial matters;

 The law on procedural fairness is concerned with striking a balance on competing

concerns to arrive at natural justice; the common law term applied to procedural
fairness
 Common law duty to act fairly
#1
 A person affected by gov’t decision should be afforded the opportunity tot present his
/her case to decision maker and be allowed to know the case against them
 Notice of case against oneself in order to give informed reply
#2
 To what extent is it permissible to that a decision maker has a bias in outcome of
decision

Common Law Background

Cooper [1863] 143 ER 414 (Eng CP)

application of duty of procedural fairness is justified on functional grounds rather than
categorization as ‘judicial’ (v ‘administrative’)

Facts:
• Board of Works demolishes Cooper’s house for failing to give notice of its construction as
required by statute
• Cooper brings action for trespass and collaterally challenges Board’ authority to demolish
without a hearing
 Failure to hold a hearing (means that no notice and right of reply given) before a decision was
made that affected a person’s interest;
 Interests from property rights
 Statute that had planning control aspects; new buildings should not be erected unless Board of
Works given 7 days notice and breach of notice meant Board could demolish building
 Notice was so that Board could give direction to builders;
 Mr. Cooper alleged to not have given notice; he said he did
 Board knocks down building
 Cooper brings action for tort of trespass
 Board says we had statutory power to trespass in order to carry out public power
Analysis:
 Court does not affect Board’s substantive decision
 Was board’s decisions making procedurally fair; was Cooper entitled to a hearing before
building was destroyed (hearing meaning notice of intent and reply)
 Statute did not say whether Board could allow hearing prior to destroying building; Court of
Common Pleas had to interpret silence in Statute
 Intention to have hearing (says court in looking at Statute)
o Common law presumption in favour of natural justice (procedural fairness)
o Biles J; although no positive words in statute to hearing the justice of the common
law will fill in the omission of the legislature

53
 Board’s power in this case was non-adjudicative and so natural justice did not apply;
administrative functions up until 1960s said no requirement for natural justice; only natural
justice requirement for judicial or quasi-judicial decision making
 Erle and Biles says distinction between judicial and administrative was largely irrelevant to
judicial fairness; the right to notice and right to reply can be applied under common law to
what are essentially common law functions that is to functions of executive body that is
exercising statutory powers when those powers impact on rights of individual
 What was justification to extending duty to hold hearing: 3 Rationales
1. Power may or may not be judicial; power
2. How power could be exercised and subject to abuse? Board could demolish house
based on ill will
3. Costs and benefits of hearing to be held: Costs to Board of Works – no harm to hearing
party before subjecting him to loss of house and in terms of benefits it would not only
be a check against malevolent use of power but check on construction and fulfill goals
of statute
• Erle CJ: ‘powers granted by that statute are subject to a qualification that has been
repeatedly recognized, that no man is to be deprived of his property without his having an
opportunity of being heard’

Held: Should have afforded him hearing prior to destroying building

 The Statutory right of appeal had no remedy for damages so the tribunal could overturn
decision but who cares because the house was destroyed
VH: emphasizes role of tribunal; not a strict approach to statutory interpretation of decision as
judicial or administrative; from 19th century to 1960s in England the courts read Cooper narrowly
and emphasized binary distinctions, including distinction between judicial and administrative
functions; natural decisions said only to apply where rights affected and not to individual
privileges

Ridge v Baldwin [1964] AC 40 (Eng HL)

Common Law presumption that powers of government action must meet
procedural fairness if the rights of individuals may be effected regardless of
whether judicial or administrative
Facts:
 dismissal by Watch Committee of Chief Constable as ‘negligent in the discharge of
his duty, or otherwise unfit for same’, at first without notice or a hearing
 Acquitted on his charge but still dismissed
Issue:
 Was there a duty to comply with natural justice in an administrative decision

Analysis:
 entitled to hearing, meaning procedural fairness – cites past cases that refused to
apply proc fairness on admin were b/c they were in part war decisions basded on
emergencey & other past cases said gov’t body responsibility to act judicially were
not inferred – defference to gov’t bodies & no need to resolve ddecision by reading
express or implict meaning into statute – returns to functional approach of cooper –
form and degree on the interests of impacted individual
Ratio:

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  Common Law presumption that powers of government action must meet procedural
fairness if the rights of individuals may be effected regardless of whether judicial or
administrative
 Re-instates the functionalist approach by rejecting adminstrative & judicial
distinctions

Re H.K (1867)
Broad Issue: This is an early case recognizing that the judicial vs. administrative dichotomy is
unhelpful. Hence, procedural obligations may exist even in non-judicial and non-quasi-judicial
settings.
Facts:
 A case concerning the admissibility of a minor into Britain.
 Immigration officer’s denial of entry to HK on basis that not under 16 years of age
 HK involves decision to deport a child, a person who was claiming to be 16 but was 15;
 ‘Hearing’ at airport: examination by doctor; interview of HK and his father by immigration
officers
Analysis: The Court: Lord Parker, C.J. of England:
I doubt whether it can be said that the immigration authorities are acting in a judicial or
quasi-judicial capacity as those terms are generally understood. But at the same time, I
myself think that even if an immigration officer is not in a judicial or quasi-judicial
capacity, he must at any rate give the immigrant an opportunity of satisfying him of the
matters in the subsection, and for that purpose let the immigrant known what his
immediate impression is so that the immigrant can disabuse him. That is not, as I see
it, a question of acting or being required to act judicially, but of being required to act
fairly (text book 103).

 Parker CJ: immigration officers subject to ‘a duty to act fairly’, emphasis on

seriousness of consequences for individual
Held: Here there was a ‘hearing; at the airport, and examination by a doctor and an interview
with immigration officers. The brief interview satisfied the duty of procedural fairness
– brief interview satisfied the duty
Divisional court; including Denning in other case; duty to act fairly

VH: Content of duty to act fairly was quite limited, like Ridge
The immigration officers conducted interview and this was sufficient

Nicholson v. Haldimand-Norfolk (Regional Police Commissioners) [1979] 1 SCR

Facts:
 N appointed pursuant to Police Act. S. 27 provides that officer who’s served over 18 mo is
not subject to any penalty until there’s a hearing, but nothing affects authority board or
council to dismiss w/in 18 mo. N dismissed after 15 mo, w/out notice and chance to reply,
and wants reasons for dismissal, seeks Judicial Review.
Judicial History:
 Unsuccessful at ON Div Ct;
OCA: Rejects N. Relies on CL rule, that a person who holds office at pleasure should be
terminable w/out allowing office holder to make representation on his own behalf.

55
SCC: Laskin CJC: Grants appeal, and annuls decision to dismiss, on grounds that board failed
to give him notice of contemplated dismissal. P should have gotten (1) Reasons for Dismissal (2)
Opportunity to Respond (oral or writing).

 Although N can’t get full procedural protections afforded to those w/18 mo + service, he
can’t be denied protection entirely. He should be treated “fairly” and not arbitrarily.
o N didn’t get sufficient reason for his dismissal (although lower courts suggest that
police board considered N to have engaged in misconduct; he’d been disciplined for
making phone call on admin matter that he’d been forbidden from making).
 Lack of express provision in police act not necessarily a complete lack of duty for PF, as read
by CA. It meant that something less than full duty to give hearing and right to appeal may be
read into statute to allow less to satisfy the duty of procedural fairness.
 It’s counter-intuitive to do as the CA, and adopt CL rule re terminability at pleasure; the
result is that a public officer can be dismissed w/out notice, whereas private employees under
collective bargaining require notice—this counter intuitive
 Nature of his work did not entail duty to act judicially-- not necessarily a right to hearing –but
there was a duty to act fairly. The distinction b/n judicial and admin duties might result
unfairly, esp where admin decision can result in severe consequences
 Purely Admin Decisions still have a D of PF; quotes S.S. Smith, Judicial Review of
Administrative Action: “Public policy does not dictate that a public office held at pleasure
should be terminable without allowing its occupant any rights of representation on own
behalf; the unreviewability of the substantive grounds for removal indicates that procedural
protection may be all the more necessary.”
Note (pg 111):
 Police commissioners laid out 11 allegations against N, gave him full hearing, then came to
conclusion that he should be dismissed; he unsuccessfully appealed (apprehension of bias)
although he won his back wages

 Importance of case: Extend duty of PF to admin functions where they have consequences on
individuals.
o Same year as CUPE, 1979, which did away w/jurisdictional categorization—says
courts should intervene less w/substantive decision making
o Expands courts role from a procedural perspective and establishes duty to act fairly in
admin functions
Aside: Only after Knight was there duty to act fairly to public officers who could be dismissed at
pleasure --Before Knight, and including Nicholson, no duty to dismiss w/just cause and notice
unless statute gave right

Consider: What admin functions require PF, and what’s the justification?
Why have elaborate protections for police and other public officers? (compared w/private
companies, can hire/fire). 1) fairness; 2) need to attract good people; 3) need to protect police
independence based on de-centralisation of police power; 4) to indicate seriousness of
termination

Martineau v. Matsqui Inmate Disciplinary Board (1980)

Generally, Court should not treat natural justice or procedural fairness as two different
standards; or depend on whether the function is judicial, quasi-judicial or administrative
Dickson feels that it is better to see thses procedural issues as operating on a spectrum or
sliding scale

56
Broad Issue:
 Martineau contemplates the distinction between judicial and administrative functions in
relation to the duty of procedural fairness. Of particular concern is the CL duty of audi
alterem partem (to let the other side speak; a.k.a. right to notice and reply).
Specific Issue:
 Whether the remedy of certiorari is applicable in review of cases that are not strictly speaking
judicial or quasi-judicial in nature?
Facts:
Like Nicholson (1979) and Cardinal (1985), Martineau involves prison discipline and the
procedural claims of inmates.
 Martineau was an inmate in a federal pen.
 The inmate disciplinary board heard evidence against Martineau in his absence and then
convicted him of a “flagrant or serious” disciplinary offence.
 Martineau challenged the conviction on the ground that he or a representative should have
been present to respond to the evidence against him.
 Martineau made an application for certiorari. The Fed Court Trial Division decided that
certiorari only applied to decisions that were judicial or quasi-judicial in nature.
SCC:
 As in Ridge (House of Lords) (1964) and Nicholson (1979), the SCC rejects the general
distinction between judicial and administrative. Moreover, they expanded the limits of
certiorari to include the enforcement of procedural requirements generally.

What rightly lies behind this emergence is the realization that the classification of
statutory functions as judicial, quasi-judicial or administrative is often very difficult, to
say the least (Laskin CJC in Nicholson 1979).
That said, as per Pigeon J (speaking for the majority): “it is specially important that the remedy
[certiorari] be granted only in cases of serious injustice and that the proper care be taken to
prevent such proceedings form being used to delay deserved punishment…”
According to Dickson J:
Certiorari is available as a general remedy for supervision of the machinery of
Government decision-making. The order may go to any public body with power to
decide any matter affecting the rights, interests, property, privileges, or liberty of any
person. The basis for the broad reach of this remedy is the general duty of fairness
resting on all public decision-makers.
A purely ministerial decision, on broad grounds of public policy, will typically
afford the individual no procedural protection…Similarly public bodies exercising
legislative functions may not be amenable to judicial supervision. On the other hand, a
function that approaches the judicial end of the spectrum will entail substantial
procedural safeguards. Between the judicial decision and those which are discretionary
and policy-oriented will be found a myriad of decision-making processes with a
flexible gradation of procedural fairness…That is what emerges from the decision of
this Court in Nicholson.
The fact that a decision maker does not have a duty to act judicially, with the
observance of formal procedure which that characterization entails, does not mean that
there may not be a duty to act fairly which involves importing something less than the
full panoply of conventional natural justice rules.

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 An inmate disciplinary board is not a court. It is a tribunal that which has to decide
rights after hearing evidence… It is, nonetheless, subject to a duty of fairness and a
person aggrieved through breach of the duty is entitled to seek relief for the Federal
Court Trial Division, on an application of certiorari.

[I]t is not every breach of rules of procedure that will bring intervention by the
Courts… Interference will not be justified in the case of trivial or merely technical
incidents.
MNR v. Coopers & Lybrand [1979] 1 SCR 495
 Case is only in casebook for purpose of Dickson J. criteria; no facts, issues, analysis, etc. (cb
115)
*Judicial v. Administrative Functions
Determining Whether A Decision Is One Required By Law To Be Made On A Judicial Or
Quasi-Judicial Basis
1. Does statute or context contemplate a hearing? Is there anything in the language in
which the function is conferred or in the general context in which it is exercised which
suggests that a hearing is contemplated before a decision is reached?
2. Are individual rights and obligations affected? Does the decision or order directly or
indirectly affect the rights and obligations of persons?
3. Is the adversary process involved?
4. Is there an obligation to apply substantive rules to many individual cases rather
than to implement broad social and economic policy?

Cardinal [1985] 2 S.C.R. 643 (BC)

Facts:
 accused of participating in hostage taking in prison
 were put in seclusion
 prisons were able to have the decision reviewed by a board – board said they should be
allowed back in with general population – director said no
Issue:
 Does Procedural Fairness apply in Administrative context
Analysis:
 applies duty to act fairly to prison administration’s decisions to ‘disassociate’ inmates for
security reasons
 The existence of a general duty to act fairly will depend on the consideration f three factors:
o The nature of the decision to be made by the administrative body
o The relationship existing between that body and the individual
o The effect of that decision on the individual’s rights
Ratio:
 whenever the three elements are to be found there is a general duty to act fairly on a public
decision-making body
 There is, as a general common law principle, a duty of procedural fairness lying in every
public authority making an administrative decision which is not of a legislative nature and
which affects the rights, privileges or interest of an individual

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Note:
Procedural fairness seen as a good in itself – strong echos of Fuller’s theory of adjudication –
argument had to do with the idea that process is its own justice – even if person loses, the
knowledge that one’s views were heard and decided is a kind of justice unto itself (the eternal
morality of law).

Knight v. Indian Head School Division No. 19 [1990] 1 SCR 653 (Sask)
*Power of school board to dismiss director of education without cause/ ‘at pleasure’
*Threshold question: is there a duty to act fairly?
*Procedural Fairness: common law background
Facts:
 Board of Ed dismissed Knight (director of education) when he refused to accept a renewal of
his contract for a shorter term than the original
 Knight claimed wrongful dismissal
 SCC held that Board did not need to show cause for the dismissal either under the contract or
under The Education Act
 Knight then claimed he was entitled to procedural fairness before being dismissed and had
not been fairly treated
Issues:
 Does procedural fairness apply to public office holders, i.e., people whose jobs exist because
of some statute
 Is it the statute that effects the position of a public officer rather than just employment law?
Analysis:
 SCC: duty to act fairly applies because the position has a ‘statutory flavour’ and goes beyond
a private employment relationship
L’Heureux-Dubé J:
 Existence of a general duty to act fairly depends on three factors:
1. the nature of the decision to be made by the administrative body;
2. the relationship existing between that body and the individual;
3. the effect of that decision on the individual’s rights
 Following Cardinal whenever those three factors are found, there is a general duty to act
fairly by a public decision making body
The Nature of the Decision
 Here, decision was final and specific; directed at terminating employment of Knight
Effect of Decision on the Individual
 Significant impact on Knight; he lost his job
Relationship Existing Between Body and Individual
o Ridge v. Baldwin = 3 Categories of Common Law Employer/Employee Relationships
1. Master-servant relationship where there is no duty to act fairly when deciding
to terminate employment
2. Office is held at pleasure where no duty to act fairly exists since the
employer can decide to terminate the employment for no other reason than
his displeasure
3. Office from which one cannot be removed except for cause, where there
exists a duty to act fairly on the part of the employer
 The justification for procedural fairness, for someone like Knight, who holds his office “at
pleasure” is that whether or not just cause is necessary to terminate employment, fairness
dictates that the admin body making the decision be cognizant of all relevant circumstances
surrounding the employment and termination (Nicholson)
 One person who knows all the circumstances is the office holder

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  Providing procedural fairness to the office holder at pleasure would not import into the
termination decision the necessity to show cause but would only require the administrative
body to give the officer holder reasons for the dismissal and an opportunity to be heard
Public Policy Argument
 Should be the imposition of a duty to act fairly on administrative bodies when making
decisions such as terminating employment because the public has an interest in the proper
use of delegated power by these bodies
 Because this is such a discretionary decision, i.e., dismissal for displeasure, it should be the
object of scrutiny
The Content of the Duty to Act Fairly
 Content will vary from case to case
 Since Knight could be dismissed at pleasure the content of the duty of fairness would be
minimal
1. Notice of reasons for the Board’s dissatisfaction with Knight’s employment; duty to
give reasons doesn’t mean providing full and complete disclosure by admin body of all
reasons for dismissing employee but rather the “communication of the broad grounds
revealing the general substance of the reason for dismissal
2. Providing Knight with an opportunity to be heard
 Knight was told of grievances against him; SCC says procedural fairness need not be perfect
so although he did not receive “notice” he was a participant in negotiations and discussions
so these activities fulfil the duty to act fairly

Sopinka J:
 Not duty of fairness owed to Knight
 This is an office held at pleasure so employer can terminate without cause and without giving
any reason
 It would be inconsistent to require employer to give reasons for terminating employment in
order to comply with reasons of procedural fairness
 There might exist a duty of fairness in special cases where a sound basis for exception is put
forward
 Exception to the General Rule:
o An employee, such as Knight, would have to identify in the statute, regulations,
or contractual provisions governing the employer/employee relationship
provisions which expressly or by necessary implication confer a right to be heard
or make representations
 Sopinka J found nothing in the contract or The Education Act imposing a duty of fairness

Decision:
 L’Heureux-Dubé (writing for Dickson, Cory, La Forest) held that procedural fairness was
due but that the requirements of procedural fairness has been satisfied
 Sopinka (writing for Wilson and McLachlin) held that the Board owed no duty of fairness to
Knight
 Board’s appeal allowed: 7:0

Case in Context:
 Up to Knight there was no duty of procedural fairness when someone held position “at
pleasure”; duty only existed when there was need to show cause
 Threshold Questions:
o Jurisprudence develops after Nicholson; decisions that affect individual or class
of individuals; depend on particular context

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 o New distinctions beginning with Cardinal with regards to decisions of legislative
nature where procedural fairness does not apply
 Distinctions, New and Old: (from slide)
o From 1979, de-emphasis on whether the function is judicial rather than
administrative
o New emphasis on (1) whether the decision is non-legislative and general
(Knight) and (2) whether it affects rights, privileges or interests of an individual
(Cardinal)
o Notion that legislative functions are excluded from implied procedural
requirements; see Dickson J in Martineau
 A purely ministerial decision, on broad grounds of public policy, will
typically afford the individual no procedural protection, and any attack
upon such a decision will have to be founded upon abuse of discretion.
Similarly, public bodies exercising legislative functions may not be
amenable to judicial supervision
o This statement provides some warrant for L’Heureux-Dubé statements in Knight
that it is not simply legislative functions that fail to attract a duty to act fairly in a
procedural sense but also decisions of a “general” nature
 But none of this is well defined (cb 131)
o What counts as a “legislative” function for these purposes?
o What are the hallmarks of a “purely ministerial decision on broad grounds of
public policy”?
o Is “ministerial” being used in the limited sense of a decision taken by a minister
of the Crown or in the broader sense in which it is sometimes used in pre-
Nicholson cases as a synonym for “administrative” (having to do with
administering)?
o What are decisions of a “general” as opposed to “specific” nature?

 L’Heureux-Dube: “a decision of a preliminary nature will not in general trigger a duty to act
fairly” (cb 172)

Legislative And Policy Decisions - Decisions Affecting Rights, Privileges or

Interests
Canada (AG) v. Inuit Tapirisat of Canada [1980] 2 SCR
—Cabinet decision not subject to PF
Facts: Decision of the federal cabinet, originally made by CRTC, which allowed Bell Canada to
raise phone rates, w/permission by CRTC, where interested persons could submit their concerns;
Bell applied to raise rates. IT wanted CRTC to enforce that rate hike be conditional on Bell
providing better services in remote regions. CRTC accepted fair hike, but did not apply the
condition. IT appealed to the federal cabinet; CRTC and Bell made submissions to Cabinet,
through dept. of communications. The dept made statement that summarized positions of parties
and gave opinions of dept about the facts, issues, and disposition of the appeal. Of this info, they
only gave IT Bell’s submissions. Appeal dismissed at recommendation of minister of
communications. IT motioned to the FC for declaration that 10 a hearing should have been given;
2) if it was, it didn’t comply w/principles of natural justice.
Issue: Is there a duty to observe natural justice, or a lesser duty of fairness on the governor in
council when dealing w/party submissions under s. 64 (1)? Was this decision of a nature that
precluded duty of PF?

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Provision:
s. 64 (1) of National Transportation Act:
1. The governor in council may “of his own motion” rescind any order of the commission,
whether or not decision related to litigation b/n 2 parties, or whether it was of general
nature
2. There’s a right of appeal from the Commission to the FCA on questions of law or
jurisdiction, on leave from FCA
Held: No duty of fairness on behalf of federal cabinet; no duty for cabinet to hold hearing,
provide reasons to any one, or acknowledge receipt of petitions—cabinet didn’t have to share
information to IT, or give IT chance to respond, in order to inform cabinet deliberation. The exec
branch cannot be denied its discretion as to whether/how it heard public submissions.
While the CRTC must operate w/in certain framework, parliament hasn’t, in s. 64 (1) burdened
the exec branch w/any guidelines or standard for its rate review function, nor imposed procedural
standards.
 CRTC’s decision was made w/attention to economic considerations, engages its expertise,
and is w/in in stat discretion
RE Cabinet’s decision/process
 The duty to observe procedural fairness isn’t implied in every case—it’s determined by a
reading of the statutory scheme, to see to what degree, if any, the legislator intended the
principle to apply
 Cabinet must act within the boundary of the Parliamentary Grant (the enabling statute)
Cabinet’s Discretion under statute
 Cabinet has Supervisory Powers under s. 64 to respond to political, economic, social
concerns. The cabinet, as the exec branch of the govt, was exercising the parliament
delegated power to determine appropriate tariffs and phone services of Bell; The cabinet is
free to consult all sources that Parliament might, had Parliament chosen to retain the power to
review it themselves
 Cabinet can overturn “of its own motion” CRTC decision w/out giving reasons; b/c Cabinet
can give its decision autonomously, it follows that legislature not envisioning elaborate right
to procedural fairness
 Cabinet should be able to determine when and when not to have hearings-- Govt might base
some policy decision on elaborate public process, but it should not be for the courts to impose
that kind of hearing where the agency/legislature has not found this necessary
Polycentricity & lack of impact on or claim by specific individual
 Dec’s of fed cabinet are often of general matter and involve broad policy (polycentric)
o The setting of phone rates has impact on individuals, but has more general affect on
people across the country. It doesn’t target 1 group/individual
Practicality
 Impractical to impose public notice and hearing requirement at court’s discretion, b/c so
many people affected—You’d clog up the govt machine and reduce its efficacy if you let
public get involved
 IT pointed out that cabinet in past held public hearings across country w.r.t. railway act;
distinguish that at that time, travel more difficult, and magnitude of govt operations under
Railway Act not same as here
 Note that decision made after IT had opportunity to and did give input
VH: Why should cabinet be able to overrule the CRTC, which is the expert body?

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A: If CRTC makes a politically unpopular decision, it should be the publicly accountable
cabinet’s right to change that decision
(p 136) Although the fairness principle in Nicholson obviates the need for a distinction b/n an
administrative and judicial function when the tribunal or agency is acting as an investigatory
body, where the exec branch has been assigned a function performable in the past by the
legislature itself, and where the subject matter is not an individual concern or a right unique to the
petitioner/appellant, there are different considerations. The court must fall back on the basic
jurisdictional supervisory role and read the statute to determine whether the governor in council
performed its function in compliance w/the parliamentary mandate,
Interpretation: Under CL, courts will defer to the legis. when making decisions of a legis subject
matter; this can change where decision relevant to individuals—likelier that there will be more
duties of PF (i.e. duty to give reasons) where an individual’s rights are affected.
[Ask VH about the distinction b/n judicial and administrative functions. I’m not getting it]

Bezaire v. Windsor Roman Catholic Separate School Board (1992):

Guidelines in this case show the business of closing schools was a matter of community
interest and so attracted duty of procedural fairness due to broad impact – unusual since a
general policy decision will not attract a duty of procedural fairness
Broad Issue:
 Which decisions are so general and broadly policy based as not to pass the threshold for the
duty of procedural fairness?
Specific Issue:
 In closing schools during a financial crisis, is a School Board obligated to consult with the
affected students and their parents?
Facts:
 Roman Catholic Separate School Board closes nine schools due to financial crisis.
 Although community aware of this potentiality, affected parents and students of schools not
consulted before announcement of decision was made (although there was some afterwards).
 Neither Ministerial procedural policy nor Board procedural policy were followed in this case.
Analysis:
 In Knight (1990) as well as Dickson J. in Martineau (1980) it was determined that legislative
functions were excluded from implied duty of procedural fairness.
 Not just legislative decisions, but as per Mac in Knight, but also policy decisions of a
“general nature”
 Where the impact of the decision being made is diffuse, affecting a broad spectrum of the
public in a generally undifferentiaeed manner, claims to participatory rights will be hard to
justify (unless the legislation says so).
Unanimous Div. Court:
 Applies Nicholson duty of procedural fairness.
 It is a question of mixed law and fact whether the circumstance of any decision attract the
Nicolson duty to act fairly.
 The guidelines and policies premised on public consultation attract the duty in the
circumstances of this case.
 The Board sent a clear message that school closures are “the business of the community”
which “require” publicity and public sessions as a precondition to the decision.
Notes:
 This is an exceptional case, in which a general policy decision got the duty of procedural
fairness imposed upon it.

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Canadian Association of Regulated Importers (CARI) v. Canada (AG) [1993] 3 FC 199 (TD),
rev’d [1994] 2 FC 247 (CA)
—policy/legislative decision not subject to DofPF/NJ
Facts: Ministerial decision to change quota system for imported hatching eggs and chicks. The
historic importers said they should have been consulted
Issue: Was there a duty of procedural fairness on Minister to consult the historic importers in a
Ministerial decision?
FC (TD): Implied duty of PF—duty to give notice and affective opportunity for those affected to
give input;
1. Minister exercising a statutory power; general decision but affected a small segment (economic
harm) (there will always be grey area b/n general and specific). Although PF doesn’t apply to
legis decision and although M exercising delegated power, given specificity and number of those
affected, it’s not legis
2. Affected party does not have to have “right”, can demonstrate “Interest” (justifies application
for Judicial Review)
 Interest: historic importers had been importing in an unregulated environment for many
years = sufficient interest to bring forth claim for JR of decision of Minister
It wouldn’t be impractical, even if you gave all chicken producers and hatcheries notice and
opportunity to comment (approx. 95 in toto).
What is important is an assessment of impact: effect of the decision; specific vs. general group
affected; if effect on rights/privileges/interests (CAH: detrimental effect)
 Policy vs. Legislation not an important distinction
 Does not depend on classifying right as CL or Legislative – Detrimental Effect enough
Held: FCA overturns TD:
 Rules of NJ not applicable to Legislative and Policy decisions (cites Inuit Tapiristat and
Dickson in Martineau).
 The decision falls w/in category of legis/policy matter, which with courts do not interfere;
Quota policy may affect a specific group, but Policy decision = no DofPF. Policy decision =
Discretion of DM; nothing in legislation says DM must give notice or consult
 Any remedy is political, not procedural. It would be considerate for the minister, but not
obligatory to give importers chance to give input. The TJ and CARI was imposing duty on
legis. that was not contemplated by the legislation—it had no provision to that effect.
Parliament could have inserted such a provision if it wanted notice & consultation to be
given.
Consider how to characterize b/m general/legislative, and specific; can have multiple right
answers
Mullan:
What if you have policy-based decision that effects individuals in unique way? Mullen mentions
Calgary Power v. Copinthorne [1959] SCC, in which Court denied procedural claim to farmer
that has part of land expropriated to build power transmission line. Also. From notes after Knight,
that case doesn’t impose a duty of PF in all cases of dismissal from employment that has a
statutory basis (applicant needs to prove that s/he ‘s in position w/a sufficient stat. flavour, and
not merely in master/servant relationship (Masters)). Mullan suggests that even that’s not enough
to attract duty automatically (129-30). An EE in who’s laid off with lots of public sector EEs for
govt cost-cutting or policy reasons probably won’t have input. There are limits on procedural
claim in the context of individualized decision making (151).

64
Suresh—there have to be concerns about whether an individual interest should be subservient to
broader public and political interests. It shouldn’t be enough for govt. agency to assert policy to
counter a DofPF argument in cases where individual interests at stake are so high.

Cardinal—Le Dain [slide w/quote] spoke of duty of PF whenever “rights, privileges, or interests”
at stake. This could have been not a test in and of itself, but a way to expand the duty of PF
beyond right, to privileges and interests (implies a positive duty) individuals. More restrictively,
maybe he meant that there is a duty of PF only where rights/privileges/interests of individual at
stake, and not applicable if a decision of a general nature affects general
rights/privileges/interests,
VH: thinks duty applies so long as decisions affects/in linked to individual needs in way that’s
unique to that individual; just about every decision will have an effect on an individual, even
those that are primarily legislative.
 E.g. use of confidential info to make decision that has effect on indiv, and he’s not informed
of that—esp. in the immigration context, where people deported, detained, have passports
removed, denied security clearance, w/out knowing reasons
Can you ever have procedurally fair, reliable process that are based on confidential info?
 What about decisions, such as to invade Iraq, based on confidential info; it wasn’t limited to
particular person, but had big effect on those in Iraq and elsewhere?
 Does the condition that focuses on unique individual give exec, and leg. unchecked power?

What if you have a policy decision that affects individuals in a unique or

extraordinary way?
o Mullan mentions farmer who had land expropriated
o Employee who loses job because of cost cutting measures
o Should these individuals have a right to procedural fairness and an opportunity to
participate?
o NO. No right legally; not practical

Decision of administration is said not to affect rights, privileges or interest of

individual?
o What is distinction? What is purpose of distinction?
o Procedural rights available only where RPI affected
o Or maybe language in Cardinal means; Courts had only extended PF to person when rights
affected BUT NOT interests/privileges
o Maybe purpose of phrase “RPI” in Cardinal means to do away with language
o See Slide of Le Dain in Cardinal
o Must be some linkage between decision and “RPT” of individual in question; don’t all
decisions affect someone?

Rights, Privileges or Interests’ of an Individual – Benefits

Re Webb (1978) 93 DLR (3d) 187 (Ont CA)

—DofPF extends to benefits—not only rights—for benefit holder, but not person seeking
benefit.
Facts: Decision by directors of Ontario Housing Corp (OHC), which owned subsidized
residencies, managed by Meridian Property Management, to terminate lease of Webb after 3

65
years on Meridian’s recommendation, b/c of problems w/her kids. Application for termination of
lease brought under Land Lord Tenant Act, and Webb applied for review of OHC decision.
Application denied and she appealed.
Issue:
 Did board have CL duty of PF, such as requirement to communicate the concerns of
Meridian, and offer her chance to respond, prior to terminating lease?
Broader issue:
 What’s appropriate to require of a particular authority in the way of procedure, given 1) the
nature of the authority; 2) the nature of its power; 3) and the consequences of the exercise of
that power to the individuals affected (Inuit Tapiristat) &; 4) Mackinnon adds, the nature of
the relationship b/n the authority and the affected individuals.
Held: Appeal dismissed.
 The OHC had and fulfilled its obligation to treat her fairly.
 The OHC in exercising its power of termination and thereby depriving the appellant of the
benefit of the lease was required under the circumstances to treat the appellant fairly by
telling her of the complaints or case against her and giving her a chance to respond.
 It would be unfair if an individual in danger of losing a benefit wasn’t give notice or a chance
to respond to an investigation being carried out by a public corporation in its public
obligation. However, it’s not necessary when considering fairness in an admin decision that it
call for formal notice or that formal proceedings be granted.

Here, the OHC did inform her of the complaints and let her respond.
Reasoning
3 submissions by her counsel (first 2 fail):
1. Statutory Powers Procedures Act applies to a meeting of directors of OHC when they’re
considering terminating lease
 On first ground, Board of directors not a tribunal exercising a stat power of decision
conferred by an Act of the legislature where it was required … by law to hold a hearing.
The choice to terminate didn’t fall under the SPPA
2. If the SPPA doesn’t apply, Court should grant order in nature of certiorari (review) on grounds
that board conducting judicial/quasi-judicial hearing to which rules of natural justice apply, and
specifically that shouldn’t be condemned w/out chance to share your side
 on the 2nd ground, this wasn’t a judicial or quasi-judicial decision that would entitled
Webb to be notified of and to attend OHC hearings,
3. On facts of case, duty to act fairly and she had legit expectation to be treated fairly,
which wasn’t met
This is grey area. Mackinnon distinguishes that the decision of whether to grant the benefit of
subsidized housing, as a matter of provincial public policy, can be made w/out a duty of PF;
however, once she became a tenant and qualified for and received the benefit, the duty of PF
kicks in because of the significance to her. Here, the OHC did inform her of the complaints and
let her respond (Super had written to her, advising her about son’s behaviour, including
harassment, vandalism, noise, and then told her that she could face eviction; she got similar
notice 6 mo later; she was unable to read or write, but OHC rep had consulted w/her about the
potential for eviction).

o Until Webb, duty of PF extended only to individual rights, but not benefits
Generally: Extend to person fewer opportunities to influence b/c it’s a benefit, rather than right?
Mullan criticizes case: Why should Webb be granted fewer procedural protections than a
professional whose license is being suspended?

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 Maybe court should take cognizance of those less likely to be able to influence decisions that
affect them in determining what’s procedurally fair.
 Where there are criteria established for receipt of a benefit, it’s inappropriate to say that PF
has no relevance to the allocation of benefits.

Non-Dispositive Decisions

Non-Dispositive Decisions:
 A preliminary or non-dispositive decision means no procedural fairness; where there
is fact finding that goes up the line
 Where you have findings that are given to ultimate decision maker it is hard to
believe that the decision maker will overrule the recommendation of the initial
decision maker
 Decisions of a preliminary nature, but which lead to a final decision being made
 In Knight, L’H-D made some comments with regard to final decision which dispose of a
person’s right (DOF applies) and preliminary decisions, which are more investigative which
DOF may not apply.
 In prelim phase your rights, privileges and interest are not necessarily being threatened and
admin agency might have some justifiable procedures such as secrecy of perations, which are
important to their overall processes.
 There are 2 problems of only apply DOF to final decision maker:
o Final decision is interwined with prelim decision – final decision tends to be like
a rubber stamp
o Sometimes a decision to prosecute is a good as a conviction (Mullan). For things
like sexual harassment and child porn, sometimes the allegation (prelim) is as
bad as the conviction

Key Questions to consider in a fact pattern:

 Start with the statutory decision maker – Are you in front of the decision maker who
hasa the authority to take your rights, privileges or interests? This is the person who
owes a duty of fairness.
 If not, are you in front of a person who has practical ability to make that decision?
 Depending on whether the proximity is close and the final decision might be
a ‘rubber-stamp’ you can make an argument about the DOF being owed at
this stage

Re Abel (1979) 97 DLR (3d) 304 (Ont Div Ct); aff’d (1981) 119 DLR (3d) 101 (Ont
CA)
Challenges the distinctions – final and non-final decisions and tells you to look at where the
power to make the decision actually lies
Facts:
 hearings by Advisory Review Board under Mental Health Act re: possible release of patients
who are in psychiatric institutions after being found not guilty of a criminal offence by
reason of insanity
 counsel for some patients requested disclosure of the files kept by the institution about the
patients, especially reports that were to be submitted to the board, to prepare for review by
Board

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  Board refused to disclose medical files to patients
Issue:
Duty of Procedural Fairness with respect to disclosure
Analysis:
 Board is not required to accept information from investigator
 Board’s report to government is only a recommendation
 Board will be heavily influenced by information and advice from investigator, and the
government would not overrule recommendation of non-release from Board
 great significance for the individual – can lead to incarceration on grounds of mental illness
Ratio:
 combination of both proximity between investigation and the decision as well as the degree
of exposure for the person concerned calls for a duty to act fairly
Note:
 The court referred the matter back for a proper consideration of whether the files should be
disclosed; it did not order the files to be disclosed
 Prof sees this case as an example of the court pushing the boundaries where procedural
fairness applies

Dairy Producers’ Co-operative Ltd. v. Saskatchewan (Human Rights Commission) [1994] 4

WWR 90 (Sask QB)
*Procedural fairness: non-dispositive decisions
*No bright line standard for triggering a duty to act fairly relating to those whose functions
are primarily investigative
Facts:
 Investigative report: re: workplace harassment complaint; recommends establishment of
board of inquiry—employer informed of complaint but not given particulars
 HR Commission receives complaint of sexual harassment in workplace
 Investigator appointed; compiles factual record and reports back to Commission as to
whether complaint was well founded and whether adjudicative board of inquiry should be
established
 Dairy Producers, during investigation, were informed of complaint but not provided with
specific details; not provided with name of complainant or names of witnesses; Dairy
Producers continually sought more information
 Before the Board of Inquiry was established the Dairy Producers applied to the court for an
order quashing its establishment and quashing the investigator’s report
 Dairy Producers alleged a breach of the rules of procedural fairness during the process
leading up to the establishment of a Board of Inquiry
Issues:
 Dairy Producers: to what extent should the party against whom a complaint is brought be
entitled to certain procedures at an investigative stage? (prior to establishment of board of
inquiry)
 Is there a duty of procedural fairness at an investigative stage of proceedings?
Analysis:
 Wright J:
o No duty of procedural fairness at the investigative stage because decision
whether to establish Board of Inquiry was left to Human Rights Commission
o Employer’s entry into settlement negotiations with the Commission “amounted
to a waiver of its right to object” on grounds of fairness at the investigative stage.
Did the investigating officer have a duty to act fairly?

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  The investigating officer had no power to affect the rights of the applicant (factor under
Knight; impact of the decision on the applicant). At most she could report that “probable
cause” existed. That in itself did not affect the rights of the applicant
 The Commission decided if the matter should proceed. If the Commission decided to
establish a Board of Inquiry undoubtedly it had a duty to provide the applicant with the
substance of the evidence against it before any hearing
Decision:
 No duty of procedural fairness in investigative stage;
 No duty to act fairly imposed on investigator BUT a duty of procedural fairness does apply
to Commission and Board of Inquiry
Case in Context:
 Compare this decision to Abel and Mental Health Act; there the decision was at height of the
adjudicative process (whether or not someone is released) whereas in Dairy Producers, the
decision is one in the context of a process (early investigative stage) that will go on to be
more adjudicative (establishment of Board of Inquiry) and procedural fairness will be part of
the more adjudicative part. (In class comment by Judith Parker)
VH:
 Risk of recrimination against witnesses if their names were known to company, or in this
case, Dairy Producers
 To what extent should an individual/company be told that there is “reasonable cause” for
investigation? Should they get an outline of the complaint? Details of it? How much
disclosure should take place?
 Because not duty of fairness imposed on investigator, no duty to provide extensive disclosure
prior to settlement discussions
 Disclosure only required at Board of Inquiry stage; not investigate stage
 Court notes that Dairy Producers, throughout the negotiations stage, did not make any
complaints about disclosure; this only came later

Irvine v. Canada (Restrictive trade practices commission) [1987] 1 SCR

Facts:
 Court reviews complex structure of investigation by commission, and whether the design of
this investigative process complies w/ D of procedural fairness and natural justice.
 Under Combines Investigation Act re unlawful trade practice:1) officer/director appointed by
commission chair conducts inquiry, 2) officer makes report, which is submitted to
commission; 3) commission decides whether there’s need for public inquiry. Potentially not
adhering to PF or rules of NJ, Officer proceeded in camera, limited witnesses from being
around when other witnesses examines, and restricted cross-examination rights.

Process, in detail
1. Director of restrictive trade practices—has duty to investigate in private the alleged
unfair practices, and could prevent different witnesses from hearing each other’s testimony
(don’t want them to collude)
Director may: a) submit records and evidence obtained on an inquiry to the AG of Canada, who
may prosecute; b) make interim report at request of the Minister; c) be requested or make own
motion to make presentations unrelated to any federal board; d) may and shall if required by
minister submit statement of evidence obtained on inquiry to commission and give copies to all
against whom allegation are therein made
2. Director gives report to commission itself, which then has to decide whether to hold full
public inquiry into matter; the director’s decisions are not determinative of a right/interest—he
makes recommendations/allegations and forms opinions or consideration by Ministers or by

69
commission. The AG may prosecute charges, but doesn’t receive recommendations re charges by
director.

The commission’s duties:

a) order witnesses to be examined on oath or produce evidence; b) receive statements of
evidence from Director and consider them in conducting hearings; c) make reports to the
minister re available and appropriate remedies; d)make reports to minister wherein
findings may be made as to whether conspiracy an d other arrangements occurred that are
likely to lessen competition; e) may recommend to Minister of finance that duties be
removed/reduced and may order that suppliers accept certain customers.
 The Minister may not act on these recommendations. That’s left to the governor
in council, whom the finance minister may advise.
 Act administered in private, except where publication of commission’s report or
commissions hearings is directed, and the conduct of prosecutions. In this case,
only thing in public was application to FC and SCC.

Process challenged and reached SCC.

Held (Estey, unanimous) dismisses challenge: Neither the Act or the doctrine of PF provides
appellants w/right to cross-examine witnesses at the inquiry (or opportunity to know the full case
against them?) .

Reasons:
“Fairness is a flexible concept and its content varies depending on the nature of the inquiry”
(179).
 No CL duty beyond what statute provides with regards to procedural protections
 Difficulty to investigate, given expertise of the Irvines and ability to cover their tracks--
Courts don’t want to burden/unduly complicate the law enforcement investigative process.
Legislature was aware of the difficulties in exposing this kind of conduct when it established
the review/investigatory structures
 Director’s investigation would be in private, and his finding was only available to
commission, not public. So, blow to reputation doesn’t happen until second stage, and
potential public inquiry, at which Irvines will have chance to testify;
 The decision to prosecute is always taken by AG, and AG won’t be swayed by factual
findings of those below AG. Report to AG only from commission, not director

In this case, investigative duties trump potential harm to individual:

Courts must, in the exercise of this discretion [to read in duties of procedural fairness], remain
alert to the danger of unduly burdening and complicating the law enforcement investigative
process. Where that process is in embryonic form engaged in the gathering of the raw material
for further consideration, the inclination of the courts is away from intervention. Where, on the
other hand, the investigation is conducted by a body seized of powers to determine, in the final
sense or in the sense that detrimental impact may be suffered by the individual , the courts are
more inclined to intervene.”
Compare anti-competition activity w/an HR claim: there may be improper intervention by
interested parties to corrupt the investigative process— more of a threat here where. Agreeing to
fix process, divide market b/n themselves, or bully retailers
We might think it’s weird that PF doesn’t apply at investigative stage of HR investigation;
however, there’s a duty on commission to ensure the investigation is neutral, unbiased, fair,
adequate . . .

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Legitimate Expectations

Legitimate Expectations

• situations where a person relies on official practices or representations that

subsequently change, to the detriment of the person
• in such circumstances, the doctrine of legitimate expectations may give rise to a
higher entitlement to procedural fairness than would otherwise be the case, but
not to substantive rights
• however, other jurisdictions extend the doctrine to substantive review and the
SCC majority in Mount Sinai Hospital left open the possibility to follow suit

 In England the doctrine of LE is a free-standing doctrine for challenging a gov’t

decision
 What is a LE?
 Said to arise when a gov’t official or body whether by practices or by representation to
a person makes a promise/commitment to person leading to an expectation that a
certain decision/outcome/result will be made in relation to that person;
 E.g. a process will be followed before a decision is made or you will receive an
licence
 Estoppel; private law – the party to whom a promise is made relies on it to their
detriment
 In Canada, LE is dealt with in admin law as part of PF (procedural fairness); serves as
basis for arguing that decision was unfair
 Doctrine is limited in Canada; not said to give rise to substantive rights; you may have
a LE in your relations with gov’t but you are not entitled to outcome only to
procedural rights
 An expectation must be legitimate; must be an authorized decision; not ultra vires of
the person who makes decision

Re Canada Assistance Plan (1991)

Broad Issue:
 Ref re CAP contemplates the doctrine of legitimate expectation as a component of the duty of
procedural fairness.
 Generally speaking, the doctrine of legitimate expectation arises where a government body,
by its practices or representations (i.e. not necessarily found in statute), makes a promise to a
person leading to an expectation that a certain outcome or decision will be made (e.g. a
license will be given, a particular process will be followed, etc).
 In Canada legitimate expectation is not its own free standing basis for challenging a decision,
but is rather part of the duty of procedural fairness and it does not give substantive rights in
any actual outcome. It just gives you procedural rights.
Specific Issue:
 Specifically at issue in CAP is whether the duty of legitimate expectation applies to the
legislative process of Parliament or the legislatures?
Facts:

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 Canadian Assistance Plan is a fed statute allowing the government of Canada to enter into
agreements with the provinces for sharing the costs of social assistance and welfare
programs.
 Changes to this plan required consent or 1 year notice.
 The Fed government decided to introduce bill without consulting the province that it was
going to limit its contribution to B.C.
 The province asked the courts whether the government was precluded from doing so by
virtue of the legitimate expectation that amendments would only be made by consent. Here
there was no consent and no notification.
 Basically the Province of B.C. is arguing as Baker would do in her case in 1999, that there
were legitimate expectations that a certain procedure would take place:
As applied in Canada, if a legitimate expectation is found to exist, this will affect the
content of the duty of fairness owed to the individual or individuals affected by the
decision. If the claimant has a legitimate expectation that a certain procedure will be
followed, this procedure will be required by the duty of fairness….
Similarly, if a claimant has a legitimate expectation that a certain result will be reached
in his or her case, fairness may require more extensive procedural rights than would
otherwise be accorded… Nevertheless, the doctrine cannot lead to substantive rights
outside the procedural domain.
This doctrine as applied in Canada, is based on the principle that the “circumstances”
affecting procedural fairness take into account the promises or regular practices of
administrative decision-makers, and that it will generally be unfair for them to act in
contravention of representations as to procedure…” (Baker: text book p. 67; factor 4 of
the 5 that determine the context of Duty of Fairness in a given case).

SCC in Ref re CAP (Sopinka J. for the Court):

 But as determined in Inuit Tapirisat (1980) and Martineau (1980), the rules governing
procedural fairness do not apply to a body exercising purely legislative functions.

Parliamentary government would be paralyzed if the doctrine of legitimate

expectations could be applied to prevent the government from introducing legislation in
Parliament. Such expectations might be created by statements during an election
campaign… Furthermore, it is fundamental to our system of government that a
government is not bound by the undertakings of its predecessor. The doctrine of
legitimate expectation would place a fetter on this essential feature of democracy (Text
book 187).

 If that doctrine gave rise to requirement of consent then it would be created substantive rights
and would be giving the provinces a right of veto over fed legislation: there is no support for
the position that the doctrine of legitimate expectation can create substantive rights. It is just
procedural rights to be consulted or to make representations.

Mount Sinai v. QB (Minister of Health and Social Services) (SCC 2001)

 Court (Bastarache) leaves open possibility that doctrine of legt expectation might be new
basis for challenging substantive decision
 Binnie’s reasons, concurring in result, clarify that legit ex limited to procedural right
Facts:

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 MSH established in north montreal by members of jewish community in 1900s as TB
sanitorium--a long-term care facility.
 Role of hospital evolved to short- and medium-term care facility.
 It wanted its licence updated to reflect role it was playing and QC wanted the hospital to be
more accessible.
 Discussions b/n MHS and minister and it was agreed that, if the hospital relocated, its
license would be regularized. In 1991, moved from st agath to Montreal, at prompting of QC
govt, having engaged in extended fund-raising efforts.
 New minister denied renewed license. MHS sought order from court of mandamus
(substantive remedy) to compe minister to issue revised license.
Issue:
 Does LE create substantive rights with regard to granting a license?
Legislative history:
 At trial and on appeal, LE doesn’t entitle them to revised license; but, QB CA says doctrine
of public law promissory estoppel entitles them to license. Minister appeals.
SCC:
 Not necessary to consider either estoppel or LE.
 Requires minister to administer license, on grounds that the first minister’s decision to issue
license is the same decision, and should be upheld.
 The Minister’s decision will be set aside through ordinary rules of procedural fairness.
o V: not satisfactory rational, Results oriented

Binnie (dissent, concurring in result): Most important part of decision

 LE DOESN’T ALLOW SUBSTANTIVE RELIEF/does not create substantive rights;
substantive review should be subsumed under ordinary rules of procedural fairness.
 License must be issued on basis that current minister made patently unreasonable decision
not to issue licence, in light of first minister’s decision.
 Distinguish Canadian Case law from other jurisdictions do extend LE to situations of
substantive review; attributes to other differences between Can and Eng admin law:
 Canada no longer divides substantive review into juris. Q’s (it’s unified under pragmatic and
functional approach—this not explicit in excerpt in book).
 Canadian cases differentiate for analytical purposes the concept of procedural fairness from
LE, whereas Eng relies on legit expectations to find basis to overturn substantive decisions,
because they don’t have general Procedural fairness doctrine.
 Legit E a blunt and over inclusive instrument from Canadian perspective, whereas English
use it to apply deference, especially in executive decision.
 In UK, it embraces the full gamut of administrative relief from PF at the low end through
"enhanced" PF based on conduct, thence onwards to estoppel
Binnie affirms Sopinka in Re CAP: 3 further arguments to affirm that LE should be an extension
of procedural fairness:
“Sopinka, citing Old St. Boniface, said that LE is an extension of the rules of NJ and procedural
fairness, which may afford “a party affected by the decision of a public official an opportunity to
make representations in circumstances in which there would otherwise be no such opportunity”.
In referring to making representations, Sopinka … intended to include whatever procedural
remedies might be appropriate on the facts of a particular case. Procedure is a broad term. The
door was shut only against substantive relief… if the Court is to give substantive relief, more
demanding conditions precedent must be fulfilled than are presently required by the D of LE”
(Binnie, p 198)

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1. No procedural protection to individuals in the case of a ‘purely ministerial decision, on broad
grounds of public policy’
2. ‘Public bodies exercising legislative functions may not be amenable to judicial supervision’
3. Inevitable angst and grey area whenever you try to draw line b/n procedural and substantive.
LE procedural, and PF substantial. An undue focus on categorization . . . does a disservice.
Inquiry better framed in terms of the underlying policy that broad public policy preeminently
for minister to determine, and not for courts.

Ratio Re where does LE apply?

The doctrine of LE looks at conduct (as distinguished from outcome/decision?) of public
authority in exercise of that power (Old St. Boniface), including established practices, conducts
or representations that can be characterized as clear, unambiguous and unqualified …The
expectations must not conflict with public official’s statutory authority (Binnie, 197)
Binnie on distinguishing LE from general procedural fairness, and on the difficulties in drawing
hard line
 “Canadian cases tend to differentiate for analytical purposes the related concepts of
procedural fairness and the doctrine of legitimate expectations. There is, on the one hand,
a concern that treating procedural fairness as a subset of legitimate expectations may
unnecessarily complicate and indeed inhibit rather than encourage the development of the
highly flexible rules of procedural fairness…. On the other hand, there is a countervailing
concern that using a Minister’s prior conduct against him as a launching pad for
substantive relief may strike the wrong balance between private and public interests,
and blur the role of the court with the Minister.” (Binnie, J., text, p. 197)
 “In affirming that the doctrine of legitimate expectations is limited to procedural relief, it
must be acknowledged that in some cases it is difficult to distinguish the procedural from
the substantive. …An undue focus on formal classification and categorization of powers at
the expense of broad principles flexibly applied may do a disservice here. The inquiry is
better framed in terms of the underlying principle .. that broad public policy is pre-eminently
for the Minster to determine, not the courts.
 The classification of relief as “substantive” however should be made in light of the principled
basis for its exclusion rather than as a matter of form.” (Binnie, text p. 199)
Binnie on Public law estoppel: related to LE, but originated in private law concepts—attempts to
apply it to legal relations b/n private party and state; Binnie says that in limited cases, it might be
available as part of the broad doctrine of fairness; but, requirements of estoppel more difficult to
make out than LE; in latter, not necessary for person to have direct knowledge of conduct of
public authority who created the expectation, whereas in estoppel, PL needs direct knowledge of
actions of defendant that lead to commitment/promise.
If estoppel applied in public law, has to accommodate flexibility for gov’t to make changes in
policy, esp. when power changes hands. In this case, estoppel would have been made out if under
private law; but circumstances in public law may have to make way for overriding public interest
expressed in the legislative text (statute may reference to public interest). Public law estoppel
can’t be relied on to overturn decisions on authority of legislature.

VH:
 Compare Binnie’s reasoning to Lebel in CUPE, re difficulties in drawing b/n standards of
review
 The other justices didn’t follow his approach, but thought that it didn’t have to be decided here
—this leaves open the door to recognize LE as leading to substantive outcomes

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Vietnamese Association of Toronto v. The City of Toronto (2007)
* Legitimate Expectations
Facts:
 City of Toronto policy that only flags recognized by federal government could be flown on
courtesy flagpole in Nathan Phillips Square
 Decision by City to no longer allow Vietnamese Association to fly flag of former South
Vietnam at its annual event, as it had for 25 years
Issues:
 Did the City breach its duty of procedural fairness?
Analysis: Swinton J. (Divisional Court)
 Legitimate expectations do not give rise to substantive rights
 Decision simply gave effect to Council by-law which properly deferred to federal government
on matters of international relations and the need to avoid offending foreign states
Is the City’s refusal to fly the heritage flag after permitting it to be flown for 25 years a denial of
VAT’s legitimate expectations?
 Doctrine of LE does not apply in circumstances of this case
 Assuming the City has a duty to act fairly in applying the Flag Policy, the doctrine of LE, at
most, gives rise to procedural rights
 The doctrine does not provide substantive rights; therefore VAT cannot rely on it to claim a
right to have the heritage flag flown in perpetuity

Was the decision of the Chief of Protocol Unreasonable?

 The Flag Policy states that the flag of a nation will only be flown if that nation is recognized
by DFAIT
 The Chief of Protocol can reasonably refuse to permit the group’s preferred flag to be flown in
order to meet the City’s objective of flying flags of nations recognized by DFAIT;
 It could be perceived as offensive to the current gov’t of Vietnam were the heritage flag flown
 SCC has made it clear that municipalities do not have the jurisdiction to involve themselves in
matters of international relations absent express or implied statutory authority to do so
Decision:
 Application for judicial review by VAT is dismissed
Case in Context:
 Illustrates the argument of “legitimate expectation” in an admin law case

Constitutional Dimensions

 Canadian Bill of Rights, s. 1(a) and 2(e)

 Charter of Rights and Freedoms, s. 7

 National Anti-Poverty Organization [1990]

 Singh [1985]
 Chiarelli [1992]

Next Step: Content of PF- once a body has been found to have a duty of PF what is the
content
Focus: Still focusing on threshold question of PF; today look at relevance of
constitutional provisions, in particular s.7 of Charter which recognizes right to life,

75
liberty, security of person and the right not to be deprived thereof except in accordance
with…

Bill of Rights/Charter: is there something in these documents requiring a duty of PF

which is not found in the common law
 Sometimes the common law reads into a statute a duty of PF; adjudicator says statute
is silent but the common law is read into statute; however common law cannot
overrule statute b/c parl is supreme;
 Section 7 is key provision for admin law; where does Bill of Rights fit in; well it is a
statute passed by Parl and applies to laws and bodies acting pursuant to law passed
federally; Bill of Rights has a clause saying it has precedence unless another statute
expressly says otherwise

Bill of Rights: passed by Diefenbaker in 1960; around the time of Roncarelli and battles
between Duplessis and Jehovah Witnesses;
 A bit of a disappointment; tended to be interpreted narrowly and Courts gave little in
the way of remedy; only exception was Drybones where a provision in Criminal Code
was struck down which made it illegal for Indians to be intoxicated off reserve

Bill of Rights; federal statute and only applies in federal domain; no application to
provincial laws;
 Also Bill of Rights has a primacy clause; Bill takes precedence over other federal
statutes unless federal statute expressly states otherwise

Bill of Rights; two provisions that can be argued that procedural protections will apply
even if relevant statute does not expressly state that protections apply

Section 1(a); (see earlier slide)

 If you have Charter then you don’t need to worry about Bill of Rights but what about
when Charter doesn’t apply; Section 1(a) applies to property and Charter does not

Section 2(e) (see earlier slide)

 Use of term “principles of fundamental justice”; first instrument in Canada to use this
term; chose to use this term rather than “natural justice”; principles of fundamental
justice includes concepts of natural justice;

Charter of Rights (see earlier s. 7 slide)

 Section 7 is similar to section 2(e) of Bill of Rights; in Bill of Right is the right to a
fair hearing, a procedural right only whereas rights to life, liberty and security of
person goes beyond just a procedural right to a more substantive right;

Bill of Rights; a right to property that is not recognized in Charter; deliberately left out;
once you have right to property you get into debate about

Authorson [2003] 2 SCR 40 (Can)

Facts:

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• Dept of Veterans Affairs failed, until 1990, to invest or pay interest on government
pensions of disabled veterans
• In 1990, Parliament amended the DVA Act to preclude payment of back interest
 Disabled veteran pensions; pensions were handled by gov’t who did not pay interest to
veterans; gov’t moved to start paying interest but not retroactive interest;
 Interest considered property of veterans but Charter doesn’t protect property;
 Post 1990 the DVA Act was amended to pay interest but not retroactive interest;
 Authorson (class action on behalf of disabled veterans) argued he was entitled to a duty of PF
relying on provisions in Canadian Bill of Rights
Judicial History:
 Successful at trial and C.A. in Ontario
Issue:
 Whether due process protections of Canadian Bill of Rights (s. 1(a)) provide for a duty of
procedural fairness including a right to a fair hearing (s. 2(e)) as a guard against expropriation
of property by passage of legislation
SCC Analysis
• SCC: amendment not inconsistent with the Bill of Rights
– s 1(a): ‘due process’ does not require notice and a hearing prior to passage
of legislation; Parliament has a right to expropriation without compensation
where its intention is clear
– s 2(e): no ‘right to a fair hearing’ prior to passage of legislation
 Although due process protections of property in Bill of Rights confer certain rights to notice
and an opportunity to make submissions in the adjudication of individual rights and
obligations no such rights were at issue in this case;

Procedural Rights in Enacting Legislation

 Section 2(e) of Bill of Rights applies only to guarantee the fundamental justice of proceedings
before any tribunal or administrative body that determine individual rights and obligations; it
does not impose on Parl the duty to provide a hearing before the enactment of legislation
 Due Process requirements not necessary for passing of legislation; long-standing
parliamentary tradition has never required that procedure and due process protections cannot
interfere with the right of the legislative branch to determine its own procedure
 S. 2(e); section doesn’t apply to general passing of laws by parliament;
 Because this matter dealt with property they argued Bill of Rights but decision not in favour of
veterans

Procedural Rights in Applying the Law

 Authorson argued that s. 5.1(4) of the Department of Veterans Affairs Act amounts to an
expropriation of interest from the pensions of disabled veterans and as such was “inoperative”
 NOPE said the Court; no adjudicative procedure is necessary for the non-discretionary
application of a law to incontestable facts; a taxpayer could not claim procedural protections
against a change in income tax rates that adversely affected him
 S. 1(a) of the Bill of Rights does guarantee a degree of procedural due process in the
application of the law in an individualized, adjudicative setting but no such application took
place here; no further procedure was due

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 Parliament is supreme; can expropriate; and can change law without requirement of due
process
 No adjudicative procedure is necessary for the nondiscretionary application of law to
incontestable facts

National Anti-Poverty Organization v. Canada (Attorney General) (“NAPO”) [1990]

FCA
Facts: (Similar to SCC decision in Inuit Tapirisat)—appeal from cabinet decision allowing Bell
to increase its phone rates (w/out subjecting it to condition that can only increase rates if it
improves services in the north)
1. CRTC decides to keep rates down according to wishes of NAPO
2. Bell petitioned council for higher rates, made submissions to Cabinet, and Cabinet
overturns CRTC decision – raise rates
3. NAPO did not have opportunity to receive material before decision
4. NAPO seeks judicial review, denial of fundamental justice s. 2(e) Bill of Rights
Issues:
 Does 2e of the Canadian Bill of Rights, which hadn’t been argued in Inuit, bind cabinet to act
in accordance w/ “principles of fundamental justice”?
 Does NAPO (national anti-poverty organisation) have right to make written submission to
cabinet in course of/prior to cabinet’s decision in CRTC rate setting?
FCTD: accepts argument, and applied s 2 e—NAPO legitimately represents interests of Bell’s
customers, and the rights and obligations being determined by cabinet; in absence of emergency
or national security concern, cabinet required to respect principle of natural justice, including
NAPO’s right to be heard, as duty of PF re hearing other side
Held: FCA overturns/disagrees FC TD: s. 2 e) of the Canadian Bill of Rights can have no
application in this matter. Nothing in the Act prohibits governor in council from varying CTC
rates, so long as rates not unjust/unreasonable/discriminatory
 The rights and obligations at stake are those of Bell subscribers at large, and not NAPO.
NAPO’s intervention was allowed on behalf of members of the general public
o V: this is dubious; if NAPO has standing, it should have rights (to make
submissions)
 Nothing in the statue restricted cabinet in procedural sense re what it could do in varying
decisions of CRTC
o Could argue that CRTC didn’t explicitly exclude duty of fairness
 Wrong for TJ to assume that SCC in IT was unaware of Bill of Rights; just b/c it didn’t
mention it, doesn’t mean it didn’t know about it. It’s up to SCC and not a trial judge to
revisit that decision
o E.g. of narrow approach to rights recognized under CBR

Singh v. Canada (Minister of Employment and Immigration) [1985]

—case that revives CBR
Facts: appellants were convention refugee claimants, landed in Canada; minister, on advice from
Refugee Status Advisory Committee, determined that they weren’t convention refugees, and they
all applied to Immigration Appeal Board for re-determination of their status. They didn’t get oral
hearing b/c board said that based on their written application, no reasonable grounds to believe
that could establish their claims at a hearing. They applied to FCA for review of IAB decision, on
grounds that statutory scheme infringed s. 7 of Canadian Charter of Rights and Freedoms.
Applications failed and they got leave to appeal to SCC, which, after hearing their oral argument,
directed the parties to make submissions on whether scheme complied w/ 2 e) of CBR.

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Impugned process by which refugee claimants could apply for refugee status
1) senior immigration officer conduct inquiry via interview w/claimant under oath, w/transcript
generated from interview, and 2) transcript referred (to applicant and) the minister for
determination of whether or not claimant had well founded fear of persecution on grounds laid
out in Refugee act, and thereby qualify as refugee; 3) Minister has statutory authority to delegate
decision-making role in this scheme (and usually does) to refugee status advisory committee;
4) committee recommends back to minister whether claim well founded, and recommendation
relayed to the senior officer who conducted interview; 5) if claimant disagreed, can Claimant can
make appeal (“request for re-determination”) and makes written submission to Appeal
Board. 6) Board would answer whether there were reasonable grounds for claimant to be granted
refugee status, and if so, would proceed to a hearing. Appeal Board has discretion to not
convene a new hearing if no reasonable chance of success.

Appeal Process:
1.Transcript + sworn statement by claimant setting out the grounds of appeal, the facts that the
claimant relies on, and the information and evidence that the claimant intends to introduce at a re-
determination hearing sent to Immigration Appeal Board (IAB)
2.
IAB makes preliminary determination of whether there are “reasonable grounds” to believe that
application may succeed if hearing proceeds (ie. body hearing appeal gets to decide if grounds for
appeal!)
3.
If so, IAB sets down hearing which affords Minister “reasonable opportunity to be heard” (both
parties have participation rights, but doesn’t say explicitly that claimant has reasonable
opportunity to be heard)
4.
Where IAB makes determination whether or not person a convention refugee, it shall, in writing,
inform minister and applicant of its decision.
5. The Board may, and at request of Minister or applicant shall, give reasons for its determination
Here, hearing was at discretion of board,  their applications were not referred to an oral
hearing because the board determined on the strength of the material submitted by the applicants
that there were no reasonable grounds for believing that they could establish their claims at a
hearing. 

What’s allegedly unfair?

1) Act didn’t contemplate oral hearing before either the Minister or the Refugee Status Advisory
Committee. Refugee doesn’t get heard other than through his claim and the transcript of his
examination under oath, and doesn’t get to comment on the advice that the RSAC has given to
the minister—insulation reinforced by Minister’s entitlement to delegate his powers to RSAC
RSAC acts as decision making body isolated from person whose status it’s adjudicating and
applies policies and makes use of information to which claimants themselves have no access. The
individual not able to know or apply to the Refugee status advisory committee, so not sufficient
notice and right to reply at stage.
2) The IAB has discretion under s. 71 of the Immigration Act to allow a re-determination hearing,
which is quasi-judicial and to which full natural justice would apply, but it’s not empowered by
statute to allow such a hearing in every case—only where it has reasonable grounds to believe
that a claim could be established on a hearing.

Wilson’s Analysis:

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Wilson finds violation of s 7 of Charter, on basis that claimants denied fair opportunity to present
claims or know case to meet, as required for their fundamental rights, which they are otherwise
deprived of
 Wilson asks whether claims process corresponded w/statute, and found that statutory
procedure properly followed (218)
o Did not find sufficient ambiguity in statute to use the CL to read in a duty of
Procedural Fairness; it would be disingenuous to claim that there was an implicit
intention by parliament (“…courts [can’t] import the duty of procedural fairness
constraints on the Committee’s operation which are incompatible w/the decision-
making scheme set up by Parliament” p 218). Parliament was clear on its process
She applies Charter, s. 7, and looks at protection in Charter for “everyone” which includes every
human being who is physically present in Canada (Doesn’t apply to refugee claimant who is
abroad), and therefore amenable to Canadian law
 Has right to life, liberty, security of person been implicated (by inability to have a
hearing)?
(The AG took a narrow view, (in attempt to move out of admin context—I guess to limit to
criminal context) and argued single right theory; that such right limited to narrow range of cases
in which consequences are death, arrest, detention, physical liberty, and punishment.)
o Wilson said that determination of refugee claimant’s status implicates this right,
even if narrowly defined; under Immigration Act, refugee claimant has right to
have claim determined by minister, and without such a hearing, a right not to be
returned to place where there’s a threat to his life/liberty/security. Claimant also
has right to appeal.
o To deprive him of avenues open under act to escape that fear of persecution must
at least impair his right to life, liberty, security of person (p 221)
o Wilson analyses distinction b/n rights and privileges; if you adopt a narrow
reading, it could be a basis for excluding refugee claimants from Bill of Rights.
The claimant doesn’t have a right, but a privilege to be in Canada—this is why
she relies on the Charter, rather than the CBR. If this dichotomy in BCR
applicable here, it is not applicable under s. 7 of Charter
o She relies on political background whereby the restrictive attitude in applying
CBR not applied in interpreting Charter, so she won’t apply the distinction b/n
rights and privileges
She looks at content of duty of PF, as subsumed under the concept of fundamental justice—the
tribunal which adjudicates on his rights must act fairly, in good faith, w/out bias, in a judicial
tempe, and must give adequate opportunity for state his case (223):
 In this case, insufficient to only give them a hearing at the first stage. Not necessary to
have oral hearing in all cases where s 7 rights have been deprived; in some cases, state
might be able to deprive individual of that right, and still be in accordance w/these
principles, by allowing written submissions; however, in some contexts, require full oral
hearing to be procedurally fair to individual.
o Where a serious issue of credibility involved—i.e. credibility of story of claimant
—fundamental justice requires that credibility be determined on basis of oral
hearing
 She’s hard pressed to think of circumstance where credibility at issue,
and written submission ok
 It was a broader concern than an issue of oral submissions; her concern
was w/the inadequacy of the opportunity the scheme provides for a
refugee claimant to state his case and know the case he has to meet

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 o The IAB is given a determination by the Minister that applicant isn’t a
Convention refugee, based in part on info the applicant can’t
o Although applicant can submit whatever relevant materials he wants to the board,
he still has to show on a balance of probabilities that Minister was wrong, yet
doesn’t know, beyond the basic reasons the minister decides to provide in
rejecting his claim, what the case to meet is
o As a matter of fundamental justice, a claimant should be entitled to discover the
Minister’s case prior to the appeal hearing
 Even though some info may be subject to Crown privilege, the court
should be in a place to decide whether asserted privilege is overbroad
o Most claimants won’t even have the chance to challenge, b/c the IAB is required
to reject application for re-determination unless it thinks that it’s more likely than
not that applicant will be able to succeed
o Procedures for determination of refugee status claims as set out in the
Immigration Act, 1976 do not accord refugee claimants fundamental justice in
the adjudication of those claims and are thus incompatible with s. 7 of the
Charter
o Fails under s. 1: the AG argued that IAB would be overwhelmed, but Wilson said
that admin convenience is not enough to save violation under s. 1—it doesn’t fall
w/in reasonable limits
Beetz’s analysis
 Beetz allows appeal on grounds of violation of 2 e of CBR, but decline to express view
on Charter
o Did process involve determination of rights and obligations of claimants?
 AG conceded that it does
o In determination of these rights, were claimants afforded fair hearing in
accordance w/principles of fundamental justice?
 Beetz says no. The individuals have been heard, but only before
an official, who has nothing to say about the actual decision.
They’re not heard by minister or advisory committee, or IAB (if
their claim didn’t go through)
 In light of the severity of the consequences, there must be a full
oral hearing
Held: Court unanimous in allowing appeal, but on different grounds. Application remanded to
IAB on condition that it hold a hearing.Wilson (for 3 judges) finds violation of s. 7 Charter, not
justified by s. 1 (the procedures for determination of refugee status claims as set out in the
Immigration Act, 1976 do not accord refugee claimants fundamental justice in the adjudication
of those claims and are thus incompatible with s. 7 of the Charter) and Beetz (for 3) finds
violation of s 2 e of CRB. Beetz: violates CBR as not in accordance w/principles of fundamental
justice.
 There was reorganization of stat scheme, so claimants entitled to hearing before deported

Chiarelli v. Canada (Minister of Justice) [1992] 1 SCR

**Challenge to the SIRC process
Facts: A non-citizen, who is a permanent resident, was convicted of serious offences, and
automatically ordered deported. Under statute, had a right to appeal to IAB, on grounds: a)
error of fact/law b) under circumstances of the case, appellant should be allowed to
remain—includes compassionate grounds.. Before IAB conducted hearing, and after he
started his appeal, joint report by solicitor general and minister of employment and
immigration, that C is a person that if allowed to remain in Canada, will be involved in

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 serious crime, and should be inadmissible. That joint report subject to a different review, than
IAB, under CSIS (Canadian Security Intelligence Service) Act; if report upheld by SIRC, the
IAB has no authority to allow claimant to remain in Canada. SIRC (security intelligence
review committee) reviews ministerial decisions making a person inadmissible to Canada on
basis that they’re (suspected or alleged terrorists, or that they’re) involved in
serious/organized crime (Role of SIRC replaced by FC, in review of security certificates that
apply to suspected terrorists; done in camera, w/out informing claimant of case, because it’s a
security issue). At SIRC hearings, b/c of sensitivity of info, SIRC can bar attendance of
person concerned; they don’t get access to info, and don’t get to cross examine. A summary
of the in camera evidence provided to C, but omits informants and sources of info that RCMP
relies on. SIRC reported to governor in council (GC) that C likely to get involved in
organized crime as contemplated by Immigration Act if stays in Canada, and recommends
that GC order certificate that effectively precludes the IAB from considering appeal. C gave
notice to board that he was challenging the constitutionality, and the IAB sent constitutional
Qs to the FCA, pertaining to ss. 7, 12, and 15.

Issue: Did the SIRC process that led to issuing certificate violate C’s constitutional
rights?
Fairness and accuracy problems raised by VH:
 Can’t reply if you don’t know case against you
 Involves informants who’ve reported to RCMP
 Can’t trust credibility of informants, and C might have info that only he knows that casts
grave doubt on the informant’s credibility (e.g. he said that about me b/c I slept w/his
wife. In US, one informant was the x-wife, which was then dismissed)
 Although strong arguments for keeping informant’s ID prvate . . .
 There’s an inordinate dependence on the part of the executive/RCMP to accurately and
comprehensively reproduce the information, in a way that is balanced
 But, if state to investigate crim organizations that are deliberately operating in secrecy,
it’s ability to respond undermined if they have to reveal informants/under cover officers
FCA: Reliance on certificate was a violation of s. 7, not saved by s. 1, b/c of denial of notice
of case against and opportunity to reply.
SCC: Sopinka upholds SIRC process and statutory scheme; the SIRC process is consistent w/
principles of fundamental justice.
Reasons: Right to appeal on discretionary grounds is not a statutory right. Investigating body
has discretion to dtermine participatory rights, and determination based on balancing of
interests—individual has interest in fair procedure, but (VH: always know this is bad) has to
be balanced against state’s considerable interest in effectively investigating and protecting
police resources.
 This scheme achieves this balance
 C gets report of the 2 Ms; prior to the hearing, he got extensive summary of surveillance
into his activities; he was given a summary of the evidence, from the in camera hearing
o These gave C sufficient ability to know case and respond; he doesn’t also need to
know the police sources used and the investigative techniques applied
VH: Q whether balancing should have been done under s 1, rather than s. 7?
 At end of day, certain kinds of info can’t be disclosed; whole range of decisions that
affect individuals that rely on confidential info.
 If we accept interest of state secrecy, have to accept that not everything can be disclosed.
The Q is whether procedural adaptations sufficient

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Deference to Procedural Rulings

Council of Canadians with Disabilities v. VIA Rail Canada Inc [2007]

Procedural Fairness: Deference to Procedural Rulings (paras 230-245)
Facts:
 Canadian Transportation Agency (CTA) decision ordering VIA to refurbish rail cars
 Intransigency by VIA Rail to make changes to cars in order to make them more accessible to
people with disabilities
 After being ordered to make changes VIA Rail finally produced cost estimate for the work
Issues:
 Did the CTA Violate VIA’s Right to Procedural Fairness?
Analysis: SCC Splits 5-4
Deference to Choice of Procedures Undertaken by Agency
 Any assessment of what procedures the Duty of Fairness requires in a given proceeding
should “take into account and respect the choices of procedure made by the agency itself,
particularly when the statute leaves to the decision-maker the ability to choose its own
procedures, OR
 When the agency has an expertise in determining what procedures are appropriate in the
circumstances (citing Baker)

 FCA had concluded that VIA procedural fairness rights had been denied b/c Agency made
order without estimate; Abella J rejects
 She emphasizes that Parl gave Agency extensive powers over its own process; this calls for
deference
 She signals expertise of agency
 Agency had repeatedly asked VIA for estimate; VIA said it could not respond without
specific remedial order; VIA wanted to know specific changes to cars and Agency wanted
different possibilities presented;
(Para 238) VIA’s argument that it was unable to seek expert cost opinions because it could not
know what remedial measures the Agency would order in the final decision is untenable. The
Agency’s final decision did not order any remedial measures for which VIA had not already been
asked to prepare feasibility and cost estimates. The specificity of the obstacles and possible
solutions identified in the Preliminary Decision a number of months earlier provided VIA with
the information necessary to comply with the show cause order, had it wished to do so. VIA
already knew how to remedy many of the obstacles identified, since the work eventually ordered
by the Agency had already been done or was underway. VIA’s procedural fairness argument
amounts, essentially, to a complaint that its own lack of cooperation throughout the Agency’s
process entitles it to an additional opportunity to be heard.
Holding: Majority; Abella; says single decision and deals with procedural fairness
• Abella J (for 5-4 majority) upheld Agency on procedural fairness (as well as substantive
grounds):
– the Agency has extensive powers over its process and is in the best position to control its
process with a view to the strategic choices of the parties
– VIA declined the opportunity to provide information on cost and feasibility:

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‘VIA’s procedural fairness argument amounts, essentially, to a complaint that its own lack of
cooperation throughout the Agency’s process entitles it to an additional opportunity to be heard.’
(para 238)

Dissent: Deschamps & Rothstein: says not enough consideration given to cost

Case in Context:
 In regards to the 5 Factors Re: Content of Procedural Fairness (see Baker); this case is about
5th factor;
#5. Procedural choices of agency itself; deference applied to procedural choices of
tribunals/agencies especially when parent statute gives right to choose its own procedures; 2)
when agency has expertise in determining what procedures are appropriate in unique
circumstances of its regulatory environment

Choice of Procedures

Overview, General Statutes

Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (Can).
Facts/Overview
• Order to deport Ms Baker from Canada after 11 years in the country (illegally)
• discretionary decision by immigration officials whether to allow Ms Baker to remain on
humanitarian and compassionate grounds
• Ms Baker suffered from mental illness and had had four children in Canada
• Application denied by officer Caden on advice from (junior) officer Lorenz
• Extends P&F approach to agencies
• Argued that decision of Immigration Officer to allow Baker to stay in Canada with her
children on H&C grounds should be overturned on substantive and procedural grounds

Baker: notes of officer Lorenz

‘PC is unemployed – on Welfare. No income shown – no assets. Has four Cdn.-born children –
four other children in Jamaica – HAS A TOTAL OF EIGHT CHILDREN

Says only two children are in her “direct custody.” (No info on who has the other two).

There is nothing for her in Jamaica – hasn’t been there in a long time – no longer close
to her children there – no jobs there – she has no skills other than as a domestic –
children would suffer – can’t take them with her and can’t leave them with anyone here.
Says has suffered from a mental disorder since ’81 – is now an outpatient and is
improving. If sent back will have a relapse.

Letter from Children’s Aid – they say PC has been diagnosed as a paranoid
schizophrenic – children would suffer it returned –

Letter of Aug. ’93 from phychiatrist from Ont. Govm’t.

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Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when
was 25 yrs. old. Is now an out-patient and is doing relatively well – deportation would be
an extremely stressful experience.

Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PC’s
mental condition would suffer a setback if she is deported etc.

This case is a catastrophy. It is also an indictment of our “system” that the client came as a
visitor in Aug. ’81, was not ordered deported until Dec. ’92 and in APRIL ’94 IS STILL HERE!

The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a
domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She
will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of
her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we
let her stay because of that? I am of the opinion that Canada can no longer afford this type of
generosity. However, because of the circumstances involved, there is a potential for adverse
publicity. I recommend refusal but you may wish to clear this with someone at Region.

There is also a potential for violence – see charge of “assault with a weapon.”
Procedural Fairness (cb 65)
 Baker argued she not accorded procedural fairness b/c:
 She was accorded insufficient participatory rights
 There was a duty to give reasons
 There was a reasonable apprehension of bias
 No dispute as to whether duty of fairness applied; both sides agreed a duty applied to H&C
decisions
 Agreed because of impact on individuals; the fact that a decision is administrative and affects
the rights, privileges or interests of an individual is sufficient to trigger the application of the
duty of fairness (citing Cardinal)
 Ms Baker argued that procedural fairness required
o an oral interview before the decision-maker
o notice to the children and the other parent of the interview
o a right for the children and the other parent to make submissions at the interview
o notice to the other parent of the interview and of that person’s right to have
counsel present
o reasons for the decision by the immigration officer

 Ms Baker also argued that the notes taken by officer Lorenz displayed a reasonable
apprehension of bias on the part of the decision-maker

Content of Duty of Fairness

 Duty of PF
o Duty in H&C decision involving woman to be deported with children in country
 Notice and Right of Reply
 Requires IO (Immigration Officer) to give reasons for decision; she had requested reasons
for decision but given notes by junior officer that informed decision of senior officer
 Argued that those notes indicated reasonable apprehension of bias of officer
SCC Analysis:

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 L’Heureux-Dubé J: five factors to consider in determining the content of procedural
fairness (text p 66-7) --
1. court-like character of the decision and the process
2. statutory scheme/ relevant terms of the statute
3. importance of the decision to the individual
4. legitimate expectations of the individual (procedural or substantive)
5. procedural choices of the agency itself
5 Factors for Content of Procedural Fairness
1. Nature of character of decision and the process; more that process and function of tribunal
resemble judicial decision making the more that procedural decisions must resemble trial
model
2. Nature of statutory scheme and terms of the statute; always look at statute, role of tribunal,
etc; greater protections will be called for when there is no appeal procedure called for in
statute and when decision is conclusive, dispositive
3. Importance of decision to the individual; extends to others such as parent or child; the
more important the decision to the individual and the greater its impact on that person the
more stringent the procedural protections that will be mandated
4. Legitimate expectations of individual challenging the decision; LE does not create
substantive rights or rights in any substantive outcome but is there any expectation of
outcome that may effect outcome and the procedural fairness; LE is based on the principle
that the “circumstances” affecting procedural fairness take into account the promises or
regular practices of administrative decision-makers and that it will generally be unfair for
them to act in contravention of representations as to procedure or to backtrack on
substantive promises without according significant procedural rights
5. Procedural choices of agency itself; the duty of fairness should take into account and
respect the choices of procedure made by the agency itself, particularly when the statute
leaves to the decision-maker the ability to choose its own procedures; OR when the agency
has an expertise in determining what procedures are appropriate in the circumstances
 Degree of flexibility; a lot of flexibility and discretion for courts in applying these five
factors and coming up with persuasive basis for determining when procedures are meet duty
of procedural fairness;
‘The values underlying the duty of procedural fairness relate to the principle that the individual
or individuals affected should have the opportunity to present their case fully and fairly, and
have decisions affecting their rights, interests, or privileges made using a fair, impartial, and
open process, appropriate to the statutory, institutional, and social context of the decision’
Applying the 5 Factors of Procedural Content to Baker
#1. Nature of Decision; was discretionary; an H&C decision is very different from a judicial
decision since it involves the exercise of considerable discretion and requires the consideration
of multiple factors; emphasizes this in guidelines given to Minister and broad policy decisions
about who we will allow to stay in country; need to consider public policy issues as well as
individual’s H&C issues; not like a dispute between two private parties so more like
administrative rather than judicial case = policy oriented
o On other hand; does not require balancing interests of different constituencies =
individualized

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 #2. Nature of Statutory Scheme: the role of an H&C decision within the statutory scheme is as
an exception to the general principles of immigration law; notes by junior officer take central
role; role of junior officer in impacting decision;
o On the other hand, there is no appeal procedure although judicial review may be
applied for with leave of the Federal Court – Trial Division;
#3 Impact/Importance Of Decision To Individual; this is a decision that in practice has
exceptional importance to the lives of those with an interest its result—the claimant and his or
her close family members—this leads to the content of the duty of fairness being more
extensive
#4 Legitimate Expectations: Ratifying Rights on Child creates LE that Baker will be allowed to
stay in Canada b/c she had 4 Canadian born children; L’Heureux-Dubé rejects this argument
because no specific promise
#5 Procedural Choices Of Agency Itself; Act affords flexibility to Minister to decide on the
proper procedure and immigration officers do not conduct interviews in all cases indicates
procedures in guidelines; not to give interview in every case; this suggests a lesser requirement
for procedural fairness
Holding: L’Heureux-Dubé J:

Requirements Of Procedural Fairness In This Case:

– opportunity for the applicant to give written submissions, but not an oral interview
– giving of reasons for the decision (although this requirement satisfied by provision of officer
Lorenz’ notes)
• also, the officer’s notes displayed a reasonable apprehension of bias on the part of the
decision-maker

Balancing the Factors

 No obligation to give oral interview; Multi-faceted decision; Exception to general
immigration law
 OOH: impact on individual; junior officer’s role; need for leave to appeal
 Decision-maker must allow Baker to make written submissions to counsel based on full
record
 However problems with decision:
o 1. Existing law in Canada should be evolved to create a requirement to provide
duty to give reasons to support admin decision; duty to give reasons
 Duty to give reasons bring discipline on decision maker; greater thought
 Satisfaction to parties; inner morality of law; people will have sense they got a
fair shake; they weren’t treated arbitrarily
 Easier for reviewing court to consider decision
o 2. Reasons against written decisions
 Costs, time, everything may be appealed; efficiency; expeditiousness;
 If decision is one that will not lend itself to extensive reasons then decision
may be structured to fulfill legal requirement but not spirit of requirement; just
a form; template reasons; archival reasons
 L’Heureux-Dubé rejects these reasons against written decisions; if decision has importance
for individual and there is a statutory right of appeal then need written decisions
 Here duty was met by notes of junior immigration officer; have notes so send them;
disclose them

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  Notes however form basis for “reasonable apprehension of bias” – what if IO had known
notes would be disclosed, then what? They would not have been candid and would have
concealed true thinking
 L-H says notes infected decision making process as a whole;
 L-H points to bias in: use of capital letters; emphasis on children and reference to the
system
5 Factors for Content of PF = Cases We Have Examined:
1. Abel; mental health decision; persons who not guilty by reason of insanity and whether
they could be released; major factor at play; board had to consider whether pysch
reports about individual could be disclosed to individual = this goes to 3 rd factor and
impact on individual; decision maker must decide whether to disclose, content based
decision
2. Chiarelli; deportation case; significant impact on individual but downplayed by
Sopinka; he emphasizes right to fair process and interests of state and that police are
able to effectively investigate crime/conspiracy; = fits within 2 nd factor, statutory
scheme; role of SIRC to protect security interests of state
3. Irvine; competition tribunal case and restrictive trade practices commission; fixing
prices; director could carry out investigation and have closed proceeding where
witnesses would not hear each other = 2nd Factor; statutory scheme and refers to little
importance to indivdial; full inquiry would happen later and at this stage you could
have damage to reputation;
4. Nature of Decision; think of cases removed from court like process; Tapirisat (setting
phone rates) or Bezaire (closing of schools)
5. Deference to procedural choices of agency itself
Deference To Procedural Choices Of Agency Itself/ Deference In Procedural Decision-
Making
• Should the courts defer to procedural decisions of administrative agencies?
• Traditionally, courts show no deference; Baker, in contrast, expresses a much more
deferential position (para 27):
‘the analysis of what procedures the duty of fairness requires should also take into account and
respect the choices of procedure made by the agency itself, particularly when the statute leaves
to the decision-maker the ability to choose its own procedures, or when the agency has expertise
in determining what procedures are appropriate in the circumstances.’
• see also cases where court applies duty of procedural fairness, but gives it a modest
or flexible content (eg Nicholson; Abel)
 Traditional position is that fairness falls within core competency of courts and not
tribunals
 This changes/ breaks out in Baker; H-D says defer to agency when agency has expertise in
determining procedures OR when statute leaves to agency the ability to choose procedures
 Even when S. 7 is at stake it may be appropriate to defer to procedural choices of
agencies/tribunals (Suresh)
 In spite of Baker and Suresh, not all procedures are treated as presumptively fair
 If procedure that is followed has been devised because process arises from different
constituencies and a debate then process/procedures should be followed and deferred

Suresh [2002] 1 SCR 3 (Can)

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Methodology to Consider Content of Procedural Fairness
Facts:
 Ministerial security certificate/ order to deport permanent resident on grounds of ‘danger to
the security of Canada’
 Decision made based on report by immigration officer, informed by CSIS information

 S was allowed to make written submissions and file material, but was not given access to the
report or to the underlying information
 Suresh ordered to be deported to Sir Lanka; expected to be member of Tamil Tigers; Sri
Lanka had history of using torture
 Minister issued certificate that Suresh a security threat
 Information comes from CSIS; info comes from informants, foreign gov’ts; foreign
intelligence agencies;
 Info provides basis of immigration report
 Suresh allowed to make written submissions but no access to underlying information or IO
report
SCC Analysis
Section 7 and the Principles of Fundamental Justice v. The Common Law and Rules of
Procedural Fairness
 The principles of fundamental justice embodied in section 7 protect substantive as well as
procedural rights
 The common law rules of procedural fairness (outlined in Baker) are basic tenets of the legal
system and they have evolved in response to the same values and objectives as s. 7 (Hogg)
 Principles of fundamental justice (s. 7) demand, at a minimum, compliance with common
law requirements of procedural fairness

 Violation of section 7; deportation order threatens life, liberty, security of person unless
specific case made out for withholding right to know case
 Court looks at Baker Factors:
1. Nature of Decision; here decision making resembled judicial process but also
highly discretionary ; minister had to deal with wide range of issues over what
constitutes security threat; Minister must evaluate not only the past actions of and
present dangers to an individual under her consideration pursuant to s. 53 of
Immigration Act but also the future behaviour of the individual; court decides
neutral factor
2. Nature of Statutory Scheme; suggests the need for strong procedural safeguards;
Board points out the Act has extensive procedural rights; representation by
counsel but designation of being security threat carries no procedural rights and
so this means higher level of PF; overall the Immigration Act ensures
participatory procedural rights but s. 53 has no provision for a hearing, no
requirement of oral or written reason, no right of appeal
3. Impact on Individual; deportation has serious personal, financial, emotional
consequences and even greater when considering torture and status of Suresh as
refugee; Suresh is a Convention refugee and faces possible torture if he is
returned to Sri Lanka; the greater the effect on the life of the individual by the
decision the greater the need for procedural protections to meet the common law
duty of fairness and the requirements of fundamental justice under s. 7 of the
Charter; also, Canada is a signatory to the Convention Against Torture
4. Legitimate Expectations; not applicable

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 5. Choice of Procedures Made by Agency; calls for deference but outweighed by
seriousness of other factors such as risk of torture to individual; Minister is free
under statute to choose whatever procedures he/she wishes in making a s. 53
decision; Minister must have considerable discretion in evaluating future risk and
security concerns; Parliament has clearly signalled its intention to leave this
decision-making to the Minister;
 On the other hand (OOH) this need for deference must be weighed
against the elevated level of procedural protections mandated by serious
situation faced by refugees who, if deported may face torture and other
human rights violations in which Canada can neither be constitutionally,
nor under its international treaty obligations be complicit

Applying the Factors Together with the Circumstances

 No oral hearing or complete judicial process required
 But must be something more than Suresh received;
 Once prima facie risk of torture made out (by applicant) then Minister must provide all
relevant information and advice that Minister intends to rely on to applicant (subject to
privilege or safeguarding public security documents)
 Furthermore, Minister must provide opportunity to applicant to address these concerns in
writing, including challenging validity of information
 After considering submissions of refugee then Minster must give written reasons
 Reasons must articulate and sustain a finding that person will not be subject to torture or
other cruel treatment if returned
 Minister must articulate in written reasons why person is a security risk to Canada
 Written reasons must emanate from person making decision and not a bureaucrat offering
advice or suggestion
 Minimum requirements to satisfy section 7;
 Court says you can look at common law requirements for fairness as outlined in Baker; basic
principles underlying common law are same as those underlying fairness in section 7; once
section 7 engaged then you must meet, at least, requirements of common law although
Charter may require more
Holding:
• SCC: violation of Charter s. 7, not saved by s. 1

– S faced deportation to torture

– principles of FJ called for access to the underlying information, barring a reason for
withholding it (i.e. privilege/ security confidentiality)
• Minister must provide:
– all the relevant information and advice
– an opportunity for the refugee to address that evidence in writing
– responsive written reasons, following consideration all relevant information

– full oral hearing not required

Statutory Powers Procedure Act, RSO 1990, c. S.22

• general statute on requirements for tribunal ‘hearings’ (oral, written, or electronic)

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 • enacted in 1971, following the Ontario Royal Commission Inquiry Into Civil Rights (the
McCruer Commission
• similar statutes in Alberta (1966) and Quebec (1996)
• roots in the U.S.: Administrative Procedure Act 1946
 The use of general statutes on procedures
 Underlying debate: whether general statutes on procedure are appropriate; whether
standardization of procedure brings you greater benefits than you lose in terms of flexibility
and adaptability of procedure

SPPA applies to tribunals:

– that exercise a ‘statutory power of decision’
‘a power or right, conferred by or under a statute, to make a decision deciding or prescribing: (a)
the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or (b)
the eligibility of any person or party to receive, or to the continuation of, a benefit or license,
whether the person is legally entitled thereto or not.’ (s. 1)
– and that are required by statute ‘or otherwise by law to hold or to afford to the
parties to the proceeding an opportunity for a fair hearing before making a
decision.’ (s. 3)
SPPA has a functional approach; includes two conditions that must be met for a tribunal to be
subject to procedural requirements set out in ACT
1. Tribunal must exercise “statutory power of decision”; this is a power or right
conferred by or under a Statute; tribunals that derive their powers from statute; the
right not to be interfered with by the state but also the right to receive a benefit from
the state
2. Tribunal must be required by statute or otherwise by law, including common law to
hold or to afford to the parties to the proceeding an opportunity for a fair hearing
before making a decision
 BOTH conditions must be met
 Only agencies/tribunals that are required to hold a fair hearing, usually this means an oral
hearing, are subject to SPPA;
 Ex: in Baker (a federal rather than provincial matter so not under SPPA) but the statute and
common law both held that there was no requirement to hold an oral hearing

What tribunals should be exempt?

• Exemptions from the SPPA:
– the legislature and its committees
– courts subject to the Rules of Civil Procedure
– arbitrators (Arbitrations Act; Labour Relations Act)
– coroner’s inquests
– commissions of inquiry (Public Inquiries Act)
– persons exercising an investigatory function that does not lead to a final binding
decision on the matter (non-dispositive decisions; we looked at in terms of
“threshold question” Dairy Producers )
– tribunals empowered to make regulations, rules, or by-laws, in other words,
general policy making functions

Statutory Powers Procedure Act, RSO 1990, c. S.22

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 • key provisions:
– s. 4: panels/ role of Chair
– s. 6: notice of hearings
– s. 9(1): open proceedings (may be varied for reasons of public security or to protect
intimate private or personal information)
– s. 10: right to counsel and to call and cross-examine witnesses
– s. 11: witness right to counsel
– s. 12: power to issue summonses
– s. 14: immunity for witnesses compelled to testify (use immunity in future civil or
criminal proceedings, other than prosecution for perjury)
– s. 17(1): obligation to give written reasons for final decision, if requested by a party
– s. 20: obligation to keep record of proceeding
– s. 25.0.1 and 25. 1: power to make orders/ rules governing its practice and
procedure – liberal construction of rules (s. 2)
S. 4: Constitution of Panels on Tribunals;
o Significant role of chair of tribunal
o Unless parent statute states otherwise, Chair may appoint specific members to deal
with specific hearings
o Chair may see unique expertise of member but also gives clout to Chair and ability to
assign members to specific cases;
o How are members of tribunals appointed? Appointment authority usually rests with
provincial cabinet; look to parent statute; provincial legislature can often review and
examine candidates in legislative committees but final decision rests with cabinet
S. 5 Parties to Tribunals
o Who has right to standing, a right to participate in tribunal?
o Entitled to standing where legal interested affected by decision and by statutory
power of decision making
o Typically parent statute may comment upon who is entitled to who can be a party to
proceedings but also common law has rules on standing, similar to what has been
stated
o Parties may derive standing from common law or statute
S. 6 Notice of Hearing
o General requirement to give reasonable notice to parties for hearing; duty to give
reasonable notice
o S. 8 is complementary to this section; where good character, propriety of conduct, or
competence of a party is at stake in those cases party is entitled to be given prior to
hearing information in conjunction with allegations; party is entitled to particulars
prior to hearing; (consider the Blood Inquiry)
S. 9(1) Open Proceedings
o Requirement for open proceeding although this may be varied for reasons of public
security
o Or to protect intimate private or personal information

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 S. 10 Right To Counsel (Including A Paralegal); Right To Call And Cross Examine
Witnesses To A Party With Standing
S. 11; Right of Witness Right To Counsel
o May be advised by counsel but not witnesses are not entitled to call or cross examine
other witnesses without permission of tribunal
o Witnesses have limited participatory rights compared to those with standing
S. 12 Power To Issue Summons
o Compel someone to appear and answer questions; power to compel production of
documents
o Power backed up the authority of the Superior Court of Justice
o Serious power b/c of intrusion it involves in peoples’ lives and self-incrimination
S. 14 Immunity for Witnesses
o Compelled to testify (use immunity in future proceedings civil or criminal
proceedings other than prosecution for perjury from what person has testified under
oath to tribunal)
o You could call someone in another proceeding, ask the same questions and see if
someone perjures themselves
S. 17(1): General Obligation To Give Written Reasons For Final Decisions;
o If requested by a party
S. 20: Obligation To Keep Record Of Proceeding
o This would include any administrative files relating to the proceedings; transcripts of
any testimony; orders or decisions of the tribunal;
o Allows statutory appeal and judicial review of decisions
S. 25.01 and 25.1: Power To Make Orders/Rules Governing Its Practice And Procedure
– liberal construction of rules (s. 2)
o SPPA allows electronic hearings, not just oral hearings; delegates how these
proceedings will be run to the tribunal in question
o Power to make orders/rules on procedure is read widely/liberally by courts
o Orders/rules must be made public pursuant to s. 27

• Statute
– Statutory Powers Procedure Act
• general rules
• specific rules of tribunal itself (esp. s. 25.1)
– parent statute/ subordinate rules
• may provide specific rules
• may authorize tribunal to make own rules
• may provide for, or exempt from, application of SPPA
– other statutes
Statute
 SPPA lays out general rules and also authorizes individual tribunals to develop their own
rules
 When looking at any particular tribunal always start with the parent statute which may
authorize or limit the tribunal to make its own rules
 Parent statute may provide for the tribunal to be subject to the SPPA or exempt it from the
SPPA
 Under a parent statute there may be a range of subordinate rules contained in regulations, by-
laws passed by municipalities, may be contained in provincial policy statements,
 Common Law

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Conflicts Between Rules
• broadly: Charter > statute > common law > subordinate rules (i.e. regulations; bylaws;
policies)
• SPPA > non-SPPA statute (unless express statutory provision to contrary – SPPA s. 32
primacy clause)
• SPPA takes precedence over other statutes b/c of s. 32 primacy clause unless
another statute expressly states otherwise
• Look carefully at statute to see if it mentions SPPA and because it may exempt
some decisions of a tribunal from SPPA and not other decisions
• SPPA/ other statutes > tribunal’s own rules (e.g. SPPA s. 25.1(3))
• Broad plenary power of tribunals under s. 25; these rules, 25.1(3) are expressly
subject to other statutes; rule of tribunals cannot trump statutes
• non-SPPA subordinate rules > tribunal’s own rules (SPPA s. 25.1(6))
• A tribunal’s own rules must defer to other rules even under non-SPPA
subordinate rules such as municipal by-laws or gov’t policy statements

 Charter is supreme; takes precedent over statute but statute that is clear and express on a
matter can overrule the common law
 Common law is used to substitute rules not otherwise dealt with in a statute in light of the
presumed intention of the legislature to abide by procedural fairness
 Common law may inform a statute when it is quiet
 Subordinate rules may be read down or supplemented by the common law
 SPPA takes precedence over other statutes unless there is express statutory provision to
contrary
 S. 25; Tribunal’s own rules must be consistent with rules statute; rules of a tribunal cannot
trump rules in statue anywhere
 What about a conflict between the common law and a subordinate rule such as a by-law?
Court would consider the factors laid out in Baker including deference to a tribunal’s
procedures
 When you are confronted with question as to what procedures must be adopted by a tribunal?
1. Look At Parent Statute
2. Look at SPPA and determine if it applies to the particular tribunal
3. Look at specific rules adopted by tribunal itself
4. Look at any other subordinate rules under other statutes or other statutes
themselves which govern procedural choices of that tribunal

Pre-Hearing Notice
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in
Canada – Krever Commission) [1997] 3 SCR 440 (Can)
Pre-hearing Notice
Facts:
 An inquiry to examine the blood system after more than 1,000 Canadian became directly
infected with HIV from blood and blood products in the 1980s
 25 parties granted standing at inquiry including the appellants, The Canadian Red Cross
Society and Bayer Inc.
 A series of procedural protections were adopted by the inquiry and its Commission counsel

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  Procedural Rules included:
 Parties and witnesses had right to counsel
 Right to cross-examine witnesses
 Parties could apply to Commissioner to have witnesses called
 Parties had right to receive copies of all documents entered into evidence and
introduce their own evidence
 Hearings were public unless an application was made to keep info confidential
 On final day of hearings 45 confidential notices naming 95 individuals, corporations and
governments were delivered pursuant to s. 13 of the Inquiries Act; delivered at end of
Inquiry’s scheduled hearings
 Section 13, Inquiries Act: ‘No report shall be made against any person until reasonable
notice has been given to the person of the charge of misconduct alleged against him and the
person has been allowed full opportunity to be heard in person or by counsel’ (federal
Inquiries Act, s. 13 – text p 345)
 No report made against anyone unless and until notice given to individual; see Federal
Inquiry Act;
 Commission issued notices of misconduct to 95 individuals; indicated these people had a
right of reply; bring additional evidence; further hearings could be held and submissions
could be made at further hearings
 Notice is given at end of all scheduled hearings;
 Receipt of notice itself is a traumatic thing for individuals;
 Timing of notice and who should get notice is quite a difficult balancing exercise; on one
hand if you spook people unnecessarily then you spook their goodwill in participating
inquiry BUT they must also have notice when Commissioner is considering finding
misconduct against individuals/corporations
 Red Cross, Bayer and Baxter Corporation decided to seek Judicial Review
 Wanted to know judicial jeopardy they were in at the time they testified at public inquiry
 However, public inquiry doesn’t know jeopardy of witnesses until testimony is heard
 Justice Krever said I’ll give notice at end of hearing
Issues:
 What limits, if any, should be imposed upon the findings of a commission of inquiry?
 Can a commission make findings which may indicate that there was conduct on the part of a
corporation or individual which could amount to criminal culpability or civil liability?
 Should different limitations apply to notices warning of potential findings of misconduct?
SCC Analysis:
What can be included in a Commissioner’s report?
 Findings of misconduct are not the principal focus on a public inquiry
 Inquiry hearings do not provide the evidentiary or procedural safeguards which prevail at
trial
 Inquiries cannot make findings of criminal or civil liability
Need for procedural fairness
 Procedural fairness is essential because findings of commissions may damage the reputation
of a witness
 Findings of a Commissioner cannot result in civil or penal consequences
 Witnesses are protected by provisions of Canada Evidence Act and the Charter which
ensures that evidence given cannot be used in other proceedings against the witness
Fairness in Notices
 Principle of fairness must be extended to notices of misconduct under s. 13

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  Commission required to give parties a notice of warning of potential findings of misconduct
which may be made against them in the final report
 Purpose of notice is to give parties an opportunity to prepare for or respond to any findings
of misconduct
 Notices should be as detailed as possible
 Notices are issued confidentially, not made public, to help protect reputation of those who
receive notices
Application of the Principles to the Case at Bar
 Appellants brought their application before the Commissioner’s findings had been released;
don’t know his findings or how they will be framed
 Cory J says the challenge is premature; no grounds to believe that the Commissioner is going
to exceed his jurisdiction in the findings of his report
 Notices are not objectionable because they indicated that the Commissioner might make
findings of fact which might amount to misconduct
 All parties had standing and so had participatory rights or had participated in hearings
 Those with standing had right to be represented by counsel; cross examine witnesses and
bring forth evidence
 Language used in notices was restrained; did not indicate findings of criminal or civil
liability; language used only convey misconduct; lesser significance for individual than
criminal finding; used words such as “failed” and “responsible”
 Potential finding of misconduct was given in confidence; damage to reputation and negative
impact was not present at time notice was given; would only come to bear when
Commissioner made his report public; no damage to individuals
Timing of Notices
 Although notices should be given as soon as it is feasible it is unreasonable to insist that
notice of misconduct must always be given early
 In some inquiries, including this one, the Commissioner will not know findings until the end
or very late in the process; timing of notices depends on the circumstances; here there was
extensive and complex evidence
 As long as adequate time is given to the recipients of the notices to allow them to call
evidence and make submissions, the late delivery of notices will not constitute unfair
procedure
Cory J:
 Public inquiries carry potentially serious consequences for individuals and
organizations against whom allegations are made
 Statutory notice and hearing requirement for those who may be the subject of
findings of misconduct;
 all the parties either (1) had standing before the inquiry or (2) had opted not to apply
for standing but were otherwise very aware of the Inquiry’s progress and had
participated as witnesses
 those with standing were given extensive procedural rights
 language in the notices did not convey findings of criminal or civil liability but rather
possible findings of misconduct (use of terms like ‘failure’, ‘responsible’)
 notices were given in confidence – thus, challenge was premature pending the
Commissioner’s report
VH:

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  VH: Need final step; individuals should have right to respond to report and object to it before
report made public; Cory envisions this for procedural fairness in lieu of early notice (??? –
do I have this right?)
 VH: does the way notice is given trouble you?

Arguments over Notice

 Form of notice
 Manner in which notice needs to be delivered
 Timeline for replying to notice
 Content or wording of notice

Ontario Hydro (1984)

Pre-Hearing Issues: Notice
Adequacy of Notice
Facts:
 Provincially owned corporation
 Wanted to extend Bruce Hydro Plant; add new transmission line
 Submits possible corridors for transmission line to joint board of Ontario Municipal Board and
Environmental Assessment Board
 Described paths of lines but it was vague; lines described as being in “south-western Ontario”
 Few people in Barrie realized that one of the options being considered was a line rather though
their area
 Notice to public and notice to everyone affect was required

– joint OMB-EAB hearing into Ontario Hydro proposal for a new transmission line
– notices of OMB-EAB hearing published in affected areas, described the proposed paths as
being in ‘southwestern Ontario’, but not including maps of possible routes
– after the decision was taken to run the line east via Barrie rather than south via London,
Division Court quashed the decision and referred it to new hearing, due to inadequate notice
 Board ruled that notice should be personal on some municipalities and individuals and
publication in newspapers
 The notices did not include a map showing possible routes of lines
 A hearing was held and very few people attended; Board decided to opt for the line near
Barrie
 Property owners near Barrie sought judicial review on the ground that the phrase
“southwestern Ontario” did not denote a route near Barrie; they were successful

Divisional Court;
 Content of notice misleading;
 New hearing due to inadequate notice

VH Comments
 VH: now maps are provided with notice
 Notice is sometimes given on Internet;
 VH: these issues come down to reasonableness and due diligence on part of tribunal
 Court will look at whether tribunal has made a reasonable effort/done due diligences that
everyone possible has been notified and given part to participate and/or reply

Mullan Text: Notice

 Without notice other procedural rights cannot be exercised

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 Most problems with notice fall into one of four categories:
1. problems about form
2. problems about the manner of service
3. problems about time
4. problems about content
 Two forms of notice are common – written and oral;
 Most courts require written notice
 The SPPA assumes notice will be written or electronic, s. 24(1)
 Oral notice can be a possibility in some situations, see Webb
 Usually a statute indicates the type of notice required
 Where decisions affect a large group of people and there is no legislative specification for
how it is to be done the usually the courts will permit notice to be given in a public way, e.g.
an advertisement in a newspaper

Disclosure of in-house Legal Advice

Pritchard [2004] 1 SCR 809

Disclosure of In-house Legal Advice
Facts:
 Brought complaint of sexual harassment against former employer, Sears, to Ont HC
Commission;
 Ont. HC declined twice to hear;
 Commission of the opinion that Pritchard acted in bad faith in bringing complaint b/c she had
signed a release which expressly released Sears from any claims under the Code
 Decision overturned by Divisional Court; referred back to Commission
 Commission reached same decision based on a set of reasons similar to the first set, i.e.
appellant acted in bad faith; decided not to deal with complaint;
 This decision complimented by in-house legal opinion; Prichard seeks disclosure on second
judicial review
Issues:
 Is a legal opinion, prepared for the Ontario Human Rights Commission by its in-house
counsel protected by solicitor-client privilege in the same way as it is privileged if prepared
by outside counsel retained for that purpose
Analysis:
Solicitor-Client Privilege Defined
 S-C privilege describes the privilege that exists between a client and her lawyer; clients must
feel free and protected to be frank and candid with their lawyers so that the legal system
functions properly
 S-C privilege does not attach to communications:
1. where legal advice is not sought or offered
2. where it is not intended to be confidential
3. that have the purpose of furthering unlawful conduct
 S-C privilege held to arise when in-house government lawyers provide legal advice to their
client, a government agency (R. v. Campbell)
 Where government lawyers give legal advice to a “client department” then S-C privilege
applies

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  However, like corporate lawyers who may give advice in executive or non-legal capacity,
where government lawyers give policy advice outside the realm of legal responsibilities, then
advice is not protected by the privilege
Application to the Case at Bar
 Procedural fairness does not require the disclosure of a privileged legal opinion
 Procedural fairness is required in the trial process and in the administrative law context; in
neither area does it affect solicitor-client privilege; both may co-exist
Judicial Review Procedure Act
• on JR, P sought disclosure of in-house legal advice to Commission
• Judicial Review Procedure Act, s 10:
‘When notice of an application for judicial review of a decision made in the exercise or
purported exercise of a statutory power of decision has been served on the person making the
decision, such person shall forthwith file in the court for use on the application the record of the
proceedings in which the decision was made
 Generally party does not have right to seek disclosure from third party but right of disclosure
from tribunal itself; must disclose record; tribunal must disclose record of proceeding when
under judicial review subject to privilege
 In house legal advice subject to same privilege as external lawyer
 Privilege cannot be overridden by a “mere inference” in a statute; cannot be overridden by
mere duty to provide record of proceedings in Act
 In house lawyers may serve in different capacities; may serve in policy capacity or executive
capacity; only protected in when giving legal advice and not when carrying out duties as
policy advisor or other capacities; distinguish between legal advice and policy advice
 Here SCC finds lawyer dispensing legal advice;

Holding:
 in-house legal advice to an administrative board is protected by solicitor-client
privilege
 cannot be overridden by a mere inference in a statute
 however, policy advice given in an executive or non-legal capacity is not protected
 here, the advice was legal and thus protected

Oral Hearings

Oral Hearings:
 Traditionally required with there we is duty of fairness
 1979 Nicholson; presumption in favour of oral hearings disappears b/c of expanded
scope of PF duty; with Nicholson more likely that PF duty triggered but content will
vary widely and be diluted
Diluted: court said you don’t always have to have oral hearing but could have written
hearing

Masters (1994), 18 OR (3d) 551 (Div Ct)

*Oral Hearings
Facts

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  M was Ontario’s agent general in NY, appointed by Premier pursuant to prerogative power,
occupied a politically sensitive position
 following complaints of sexual harassment Premier suspended him; requested a team of
investigators to determine facts and report back to Premier;
 after the investigation, Premier removed M and reassigned him to another position
 M sought JR alleging breach of procedural fairness – argument that he was entitled to a full
hearing where he could cross-examine witnesses against him ; Argues that 45 witnesses
questioned without him or counsel present
 Denied access of questions, notes, transcripts, etc of interviews; not allowed to know
investigators
 He was allowed to approach witnesses during business hours but they had the right not to
submit to an interview
Issue:
 Central Submission by Masters: credibility was key; all turned on whether one believed
version of events put forth by witnesses; where everything turns on credibility and this
impacts careers there is a duty of fairness; requirement to have trial like hearing and cross
examine witnesses under oath
Analysis: Divisional Court –
1. Context of Situation:
– high profile political position, directly accountable to Premier
– appointed by prerogative rather than statutory power
– more like Inuit Tapirisat than Nicholson or Knight
 Divisional Ct rejects argument
 Not ordinary position; high profile; directly accountable to premier; employment relationship
based entirely on ministerial discretion
 A prerogative rather than statutory appointment;
 Master’s position more politically accountable and senior than the positions held by those in
Nicholson and Knight; here Premier not acting pursuant to a statute but exercising
prerogative to revoke appointment ; these features of the decision making distinguish this
case from Nicholson and Knight placing it even more towards the discretionary or legislative
end of the spectrum referred to in Martineau
2. Process Afforded:
– M met investigators and submitted to lengthy interview
– M given copy of investigators’ notes and opportunity to make corrections for
accuracy
– M given opportunity to reply to investigators’ report by letter, prior to Premier’s
decision
• Premier had applied existing Management Board procedures to the extent applicable
 Masters given opportunity to respond to allegations; Masters was interviewed by
investigators and allowed to check notes of investigators notes for accuracy
 He was given a copy of report and final right of reply before decision taken by premier
Holding:
– SPPA does not apply – no statutory power of decision; no hearing required by
statute or otherwise by law
– no entitlement to full hearing with cross-examination rights
– no requirement to compel witnesses to submit to an interview with M

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 – no requirement to disclose all witnesses statements; disclosure of substance of
allegations was sufficient
text p 371: ‘In comparison to a trial, therefore, there is much greater margin for error in the
“findings” of any investigation. This is particularly so where findings depend on difficult
determinations of credibility, motive and intent’.
 No requirement of state to compel witnesses to be interviewed by Masters
Decision
 Details of report were sufficient so they didn’t have to disclose all details to Masters; Masters
aware of the material allegations against him and provided with an adequate opportunity to
be heard

Mullan Notes:
 Much of Adam J’s justification for holdings that Masters was not entitled to a trial type
hearing or even to confront directly either in person or through his counsel the witnesses
against him stems from his analysis of the nature of the process that was being conducted as
well as the nature of Master’s position. Indeed he takes pains to point out inter alia that the
Ontario Statutory Powers Procedure Act was not applicable to the proceedings
VH:
 Prior to Dunsmuir, when a public officer was dismissed an oral hearing would be required if
allegations were serious such as sexual harassment
 Here the position was highly political
 VH: Borderline case as to whether oral hearing is required

Case in Context: Oral Hearings:

 With the emergence of the procedural fairness doctrine the presumption in favour of oral
hearings as the norm disappeared under the common law
 In Nicholson, Laskin CJC in describing the applicant’s procedural entitlements at any
resumed consideration of his status as a police officer, left the discretion on whether to
proceed by way of oral or written hearing in the hands of the Board of Commissioners of
Police
 The need for deference to the procedural choices of some decision makers, including choices
about the mode of hearing achieved even stronger affirmation in Baker where the SCC
sustained the immigration authorities’ holding of a written hearing at least in that instance
 The legitimacy of other forms of hearing (written and electronic) has also achieved extensive
recognition in the 1994 amendments to the SPPA
 ON THE OTHERHAND, there are decisions affecting rights protected by the Charter and
the Bill of Rights
 In Singh, Beetz J condemned the statutory structure by reference to the Bill of Rights on the
basis that the applicants’ claim to Convention refugee status could be “finally denied without
their having been a full oral hearing at a single stage of the proceedings…”
 However, it is equally worth noting that Wilson J. decision in Singh was not so much on the
absence of an oral hearing but lack of success to the ministry’s case
 For Wilson J. an oral hearing was not necessarily a universal component of the “principles of
fundamental justice” under section 7 of the Charter though she did reiterate “the conventional
wisdom as to the need for such a procedure “where a serious issue as to credibility is
involved.”
 This need for an oral hearing where credibility is involved was confirmed in Suresh

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Procedural Fairness

National Security

Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9
Facts:
The Immigration and Refugee Protection Act (“IRPA”) allows the Minister of Citizenship and
Immigration and the Minister of Public Safety and Emergency Preparedness to issue a certificate
declaring that a foreign national or permanent resident is inadmissible to Canada on grounds of
security, among others (s. 77), and leading to the detention of the person named in the certificate. 
 The certificate and the detention are both subject to review by a judge of the Federal Court, in
a process that may deprive the person of some or all of the information on the basis of which
the certificate was issued or the detention ordered (s.  78). 
 Once a certificate is issued, a permanent resident may be detained, and the detention must be
reviewed within 48 hours; in the case of a foreign national, the detention is automatic and that
person cannot apply for review until 120  days after a judge determines the certificate to be
reasonable (ss. 82-84). 
 The judge’s determination on the (standard of review of) reasonableness of the certificate
cannot be appealed or judicially reviewed (s.  80(3)). 
 If the judge finds the certificate to be reasonable, it becomes a removal (deportation,
potentially to torture) order, which cannot be appealed and which may be immediately
enforced (s. 81).
 Certificates of inadmissibility issued by the Ministers against the appellants C, H and A.  C
is a permanent resident, H and A are foreign nationals who had been recognized as
Convention refugees.  
 All were living in Canada when they were arrested and detained on the basis of allegations
that they constituted a threat to the security of Canada by reason of involvement in terrorist
activities.  C and H were released on conditions in 2005 and 2006 respectively, but A remains
in detention. 
 Both the Federal Court and the Federal Court of Appeal upheld the constitutional validity of
the IRPA’s certificate scheme.
Issues [for us]: Does the IRPA certificate procedure infringe (s.7 of) the Charter, and, if so, is
infringement justified? What constitutes right to a fair hearing under s. 7?
Held:
 The procedure under the IRPA for determining whether a certificate is reasonable and the
detention review procedures infringe s. 7 of the Charter. 
 While the deportation of a non-citizen in the immigration context may not in itself engage
s. 7, features associated with deportation may do so b/c the person named in a certificate
faces detention pending the outcome of the proceedings, and because the process may
lead to the person’s removal to a place where his or her life or freedom would be
threatened. 
 The IRPA’s impairment of the named person’s right to life, liberty and security is not in
accordance with the principles of fundamental justice.  The procedure for determining
whether a certificate is reasonable and the detention review procedure fail to assure the

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 fair hearing that s. 7 requires before the state deprives a person of this right (read: when
s.7 implicated, triggers right to fair hearing).
Right to fair hearing includes 4 components:
1. must be oral hearing (requirement met. Here, before FC judge)
2. hearing must be before an independent/impartial adjudicator (requirement met)
(VH: can an FC judge be this, when playing the role asked under the statute? Biased in favour of
exec? Individual? Too involved in investigation? Court says this requirement met, but says
standard of reasonableness requires a “searching review of the reasonableness of the security
certificate”. Judge must heavily scrutinize, but how much can s/he, in light of the limitations.
SCC satisfied that these limitations don’t undermine system of closed proceedings that rely on
judge. VH seems much less satisfied)
3. The adjudicator must make a decision on fact and law (requirement not met. No individual at
hearing, so no opportunity to cross; person can’t counter legal arguments of state, b/c not apprised
of them; adjudicator not making decision on fact and law—this not satisfied)
4. Notice and right of reply. (Not met. Person has no opportunity to reply, and review procedure
doesn’t account for that sufficiently, as required by s. 7.)
Security concerns can’t be used, at the s. 7 stage of the analysis, to excuse procedures that do
not conform to fundamental justice (VH: Although national security may require that info be
kept secret from individual and public, alternatives must be found to the adjudicative
process. There’s a bottom line of protection required by s. 7.)
 The IRPA scheme includes a hearing and meets the requirement of independence and
impartiality, but the secrecy required by the scheme denies the person named in a
certificate the opportunity to know the case put against him or her, and hence to challenge
the government’s case.  This, in turn, undermines the judge’s ability to come to a
decision based on all the relevant facts and law. 
 FC judges are required under the IRPA to conduct a searching examination of the
reasonableness of the certificate, in an independent and judicial fashion and on the
material placed before them, but they don’t have full and independent powers to gather
evidence that exist in an inquisitorial process AND
 The person named in a certificate is not given the disclosure and the right to participate in
the proceedings that characterize the adversarial process  
 concern that the judge may be obliged to make the required decision based on only part
of the relevant evidence and only part of the law— without knowledge of the information
put against him or her, the person named in a certificate may not be in a position to raise
legal objections relating to the evidence, or to develop legal arguments based on the
evidence. Judge can’t compensate for lack of informed scrutiny.
 For the IRPA to comply w/s. 7 is to be satisfied, either the person must be given the
necessary information, or a substantial substitute for that information must be found. The
IRPA provides neither—doesn’t comply w/s. 7 [23] [27-31] [38] [45] [50-52] [61] [65]
 Security concerns can’t be used, at the s. 7 stage of the analysis, to excuse procedures that
do not conform to fundamental justice (VH: Once s. 7 interest engaged, can it envision
use of secret evidence/closed proceedings? Although national security may require that
info be kept secret from individual and public, alternatives must be found to the
adjudicative process. There’s a bottom line of protection required by s. 7.)
S.1 analysis
 The infringement of s. 7 is not saved by s. 1 of the Charter.  While the protection of
Canada’s national security and related intelligence sources constitutes a pressing and
substantial objective, and the non-disclosure of evidence at certificate hearings is

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 rationally connected to this objective, the IRPA does not minimally impair the rights of
persons named in certificates. 
 Less intrusive/impairing alternatives developed in Canada and abroad, e.g. the use of
special counsel to act on behalf of the named persons. Govt can do more to protect the
individual while keeping critical information confidential than it has done in the IRPA. 
[66] [68] [70] [73] [85] [87]
[There are other Charter challenges, but our focus is on s. 7, and less impairing alternative]
Less Intrusive Alternatives [paras. 70 +]
 SIRC, established at same time of CSIS, as review/independent monitor of CSIS.
Latter to take over from RCMP.
 SIRC (expert lawyers who are SIRC counsel, and appear in adjudicative counsel.
Privy members like Bob Rae) had the power to vet findings of inadmissibility based
on alleged threats to national security; a ministerial certificate could not be issued
without a SIRC investigation. If the Minister of Employment and Immigration and
the Solicitor General were of the opinion that a non-citizen was inadmissible due to
involvement in organized crime, espionage, subversion, acts of violence, etc., they
were first obliged to make a report to SIRC:
 In 1988, SIRC removed from process in 1988 wrt foreign nationals (Parliament
added s. 40.1 to the Immigration Act to empower the Minister and the Solicitor
General to issue security certificates in respect of foreign nationals. Section 40.1
effectively bypassed the SIRC investigation process where foreign nationals were
concerned, instead referring the certificate to a designated judge of the Federal Court
for subsequent review).
 Security certificates in respect of permanent residents remained subject to SIRC
scrutiny until 2002, when Parliament repealed the Immigration Act and replaced it
with the IRPA.
 Example where paliament balances security concerns w/public interest: amendments
to Canada Evidence Act re Anti-terrorism Act, S.C. 2001, c. 41; a participant in a
proceeding who is required to disclose or expects to disclose potentially injurious or
sensitive information, or who believes that such information might be disclosed, must
notify AG about the potential disclosure, and AG may then apply to the Federal
Court for an order prohibiting the disclosure of the information: ss. 38.01, 38.02,
38.04.
 FC judge has discretion in deciding whether the information should be disclosed, if
s/he concludes that disclosure of the information would be injurious to international
relations, national defence or national security, but that the public interest in
disclosure outweighs in importance the public interest in non-disclosure.
 FC judge may order the disclosure of all or part of the information, on such
conditions as he or she sees fit—No similar residual discretion exists under the IRPA,
which requires judges not to disclose information the disclosure of which would be
injurious to national security or to the safety of any person.
 Crown and DF counsel struck better balance in investigating Air India bombing
 Arar Inquiry eg. of the use of special counsel in Canada. The Commission had to
examine confidential information related to the investigation of terrorism plots while
preserving A’s and the public’s interest in disclosure.  The Commission was
governed by the CEA.  To help assess claims for confidentiality, the Commissioner
was assisted by independent security-cleared legal counsel with a background in
security and intelligence, whose role was to act as amicus curiae on confidentiality
applications.  The scheme’s aim was to ensure that only information that was rightly
subject to national security confidentiality was kept from public view.  There is no

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 indication that these procedures increased the risk of disclosure of protected
information [79].
 UK initiates special advocate system, employed by the Special Immigration Appeals
Commission (“SIAC”), based on Can system, in response to Chahal v. UK, 1996.
The court in Chahal commented favourably on the idea of security-cleared counsel
instructed by the court, identifying it as being Canadian in origin (perhaps referring
to the procedure developed by SIRC);
 Special advocate’s three main functions: (1) to make submissions to the Commission
at any hearings from which the appellant and the appellant’s representatives are
excluded; (2) to cross-examine witnesses at any such hearings; and (3) to make
written submissions to the Commission. 
o After seeing the protected information, the special advocate may not
communicate with the appellant or the appellant’s representative without
authorization from the Commission: rule 36.  If the special advocate requests
such authorization, the Commission gives the Secretary of State an
opportunity to object to the proposed communication before deciding
whether to authorize it:  rule 38
 Parliament is not required to use the perfect, or least restrictive, alternative to achieve
its objective:  R. v. Chaulk, [1990] 3 S.C.R. 1303.   However, bearing in mind the
deference that is owed to Parliament in its legislative choices, the alternatives
discussed demonstrate that the IRPA does not minimally impair the named person’s
rights [85]. 
Aftermath
 Although Court didn’t say Spec Advcts necessary, that was implication/result
 VH: contest b/c courts and executive
 Waldman and others unsuccessfully argued that Canada should bring back SIRC,
rather than special advocate, b/c SIRC has resources.
 Bill C-3, amends process and injects special advocates; can anticipate further
constitutional challenges, and SCC has to see whether process adopted by parliament
now meets minimal impairment
VH: Is use of SA satisfactory adaptation, or are there other things that might be appropriate?
Doesn’t deal w/dependence of judge on executive to produce all the evidence, including
exculpatory—w/out further investigative capacity, still an issue

Closed Hearings
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher
Arar

Choice of procedures
• Closed Proceedings
 presentation by Paul Cavalluzzo, former commission counsel, Arar Inquiry: ‘National
Security Hearings: Fundamental Justice, Fair Procedures, and Public Disclosure’
Procedural Challenges:
 Tension among three, different, competing requirements in terms of procedural fairness
1. Making as much information as possible public
2. Protecting legitimate claims of NSC (national security concerns)

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 3. Ensuring procedural fairness to institutions and individuals who might be
affected by the proceedings
Mandate of the Commission:
1. Factual Inquiry into detention, deportation, imprisonment and return of Mr. Arar
 Involves adjudicative fact finding
 Conducted by way of evidentiary hearings, some in camera and some public
2. Policy Review re recommendations for review mechanism of RCMP activities with
respect to national security
 Examination of policy related issues, practices and experiences, domestic and international

Factual Inquiry:
 Four guiding principles: thoroughness, expeditiousness, openness to the public and fairness
 Thoroughness: examine all relevant issues; leave no doubt that all questions raised by a
mandate are answered and explored
 Expeditious: in order to be effective, a public inquiry must be expeditious; expeditiousness in
the conduct of a public inquiry makes it more likely that members of the public will be
engaged by the process and will feel confident that the issues are being appropriately
addressed
 Open to the Public: it is essential that a public inquiry have proceedings be as transparent,
accessible and open to the public as possible
 Fairness: inquiries can have a serious impact on those implicated in the process; an inquiry
must balance the interests of the public in finding out what happened with the rights of those
involved to be treated with fairness

Certain Circumstances for In Camera Hearings

 1. Legitimate circumstances for protection of sources
 2. Protecting confidential information

1. What Are Rules For Excluding Public?

2. Who Makes Decision To Exclude Public?
3. What Are The Applicable Standards For Excluding The Public?
 S. 38 of the Canada Evidence Act
o S. 38: International Relations and National Defence and National Security
o Both the Canada Evidence Act and the Order in Council establishing the Inquiry
provide for a means whereby information that may potentially be injurious to
NSC may be disclosed if the public interest in disclosure outweighs the potential
injury

Arar Inquiry
 Reviewing a national security investigation
 3rd Party Rule; if one security agency gives information to another agency then that
information cannot be passed on to a third agency without the consent of the agency that
originally provided the information
 Example: If CSIS passed on information to the US and it then passed that information onto
Syria without the consent of CSIS this would be a breach of the “Third Party Rule.
 Canada is a net importer of intelligence so we must respect rule

1. What evidence should be heard in camera?

2. How do you test claims of gov’t that information is national security sensitive?

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3. How do you test reliability and credibility of gov’t case to be heard in secret?
 Amici Curiae
o The Rules of Practice and Procedure provided for the appointment of an independent
legal counsel to act as amicus curiae to test the government’s NSC claims
o Commission appointed a person, Ron Atkey, independent of the gov’t with extensive
expertise in national security matters to assist Commission in ensuring that the
government’s claims were subjected to rigorous examination
o They had access to all of the documents and to the transcripts of in camera evidence
o They made submission about the substance of the government’s NSC claims

Terms of Reference of Arar Inquiry

 Maximize public disclosure and protect national security
 Giving Commissioner authority to make decisions over what evidence could be disclosed
subject to gov’t making application to federal judge
 How do you provide procedural fairness to Arar when he isn’t there and cannot know the
evidence against him?

Procedural Fairness:
o #1 Focus on Independent/Commission Counsel in Arar; similar to Special
Counsel under Charkaoui
 Independent counsel/commission counsel demanded to see a lot of
national security information
 Must have broad rights to see information
o #2. Commission Counsel took active role in testing information;
o #3. Commission Counsel had ongoing contact with Mr. Arar and his counsel;
Arar then had participation rights in process
o #4. Commission counsel must have adequate resources to prepare case

Commission/Independent Counsel
 For the most part, all parties appearing at the Arar Inquiry had interests that were identical or
similar to the government’s
 This problem was made worse by the fact that all gov’t departments and agencies shared the
same set of counsel and therefore took the same position on matters
 Commission Counsel was therefore instructed to test the in camera evidence by means of
cross-examination when necessary
 As one of the steps in preparing to examine witnesses in camera, Commission Counsel met
with Mr. Arar and the intervenors to receive suggestions about areas for cross-examination
 In the in camera hearings, if Commission counsel thought it necessary, witnesses called by
the Commission were cross-examined, whether the government agreed or not
 Having Commission Counsel incorporate into witness examinations the perspectives of those
who had an interest, but could not take part in the proceedings, helped to address the
shortcoming in the process resulting from the exclusion of parties
 Process also helps assure public confidence in process
 To effectively test evidence and cross-examine witnesses Commission Counsel must have
proper resources including access to all relevant documents, time to prepare and proper
facilities

Special Counsel
 Following Charkaoui there are now Special Counsel
o 1. No immediate access to evidence; must make application to judge

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 o 2. Special advocate does not have access to individual; must make application to
judge to have access to individual; the gov’t will always fight these applications

Public Disclosure; the Public’s Right to Know

 Gov’t argues there will be threat to national security
 What is the standard of review if gov’t says if you disclose this evidence there will be a
threat to national security?
 What standard does the judge apply?
 Who makes the decision?
 Commission found that gov’t made overly broad assertions of national security on evidence;
gov’t wants to protect informational interests (don’t want to embarrass other security
agencies by disclosing info)

Issues:
 What is the level of deference to security interests and gov’t
 Federal judge doesn’t have access to everything
 Much of the information is already in the public domain

Public Disclosure and Transparency:

 Together they bring accountability to public officials

Differences between Commission Counsel and Special Advocates

 Commission Counsel has more power than Special Advocates
 CC has access to individuals; adequate resources;

VH: Be aware of problems/limitations of secret hearings; what adaptations could be used to

improve these procedures;
 Commissions of Inquiry and Security Certificates = both may use secret hearings
 What about employment processes that use secret procedures?
 What are the implications for the individual and what is the state’s interest?
 What are the consequences to an individual such as Mr. Arrar? What about a different
context, such as Mr. Charkaoui, not a citizen, but permanent resident, where two ministers
can declare someone a security threat – what are the implications of that decision making?
 What about interests of someone facing deportation as opposed to reputational interests of
Mr. Arrar?
 What about deportation where someone may face torture or a lengthy period of
incarceration?
 Does this mean there should be a higher standard of procedural fairness in terms of
fundamental justice under common law or S. 7 of the Charter?
#2: Understand the limitations when closed proceedings/secret evidence are relied on
 No opportunity to cross-examine
 No knowledge of case against you
 What is the standard of review?
 What is the burden of proof on the state? Reasonable grounds is the standard in security
certificates
 Only one side presenting evidence

 Limitations that come from absence of individual

1. Cross-examination cannot be effective because individual does not know the
case against them; can’t add his information/knowledge to a cross-examination;
no procedural adaptation can overcome this when secret evidence is used

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  Limitations that come from absence of public
1. People don’t know trial is going on so other people can never come forward to
might have information
2. No press to report on trial?
 Deference to the executive
1. This is a secret world; spy and security agencies; no expertise of court to
challenge the expertise of the executive to say information must be kept secret;
courts often look to former members of intelligent agencies (Ron Atkey; Reid
Morden)
 Dynamic of closed proceedings
1. The bunker courtroom in the federal court; physically and mentally like a
bunker; everyone is from the gov’t and only those with special security
clearance; everyone in the courtroom has the same “mentality” and no one
wants to challenge the gov’t position; this may effect a judge
Justice O’Connor: Openness and transparency are hallmarks of legal proceedings in our system
of justice. Exposure to public scrutiny is unquestionably the most effective tool in achieving
accountability for those whose actions are being examined and in building public confidence in
the process and resulting decision
Justice Fish (Toronto Star Case): In any constitutional climate, the administration of justice
thrives on exposure to light—and withers under a cloud of secrecy

Giving of Reasons

Mullan:
 CL, pre-Baker was reluctant to impose on Admin tribunals the requirement to give
reasons; traditional opinioin was that statutory authority wsa not obliged to provide
reasons
 Saw changes when requirements for reasons were put statutory codes – see SPPA s.
17
 IN Baker, we see the SCC for the first time accepting the idaa that failure togive
reasons could taint a decision in terms of proc. Fairness
 Post Baker, still some room for exercises of statutory prerogative power to make
decisions w/out providing rules, but much less room for this

Reasons are only to “provide conclusions” not:

 Findings of fact
 Reasoning process
 Reasons don’t address points at issue

From Via Rail:

 Should make reference to their main arguments and should indicate on what basis
they solved the dispute to ensure parties were heard and had meaningful opportunity
to influence decision maker
 Should be provide explanations that are sufficient to properly scrutimnize the
decision appeal

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  If decision was an exercise of discretion, reasons would indicate that the tribunal
knew they were making a choice, recognize that it has the power to choose and set-
out the factors by which the tribunal made their ultimate choice

Baker v Canada (Minister of Citizenship and Immigration), 1999 SCC

 Argued that decision of admin officer to deny her application to stay in Canada w/her
kids on humanitarian and compassionate grounds should be overturned both on
substantive and procedural grounds
 Both parties agree that duty of procedural fairness applies to H&C decisions, given that it
was administrative and affects the rights/privileges/interests of individuals
 They’re dispositive, and not generally appealable

Baker argued that duty of PF involving H&C application required (p65):

1. oral interview before decision maker
2. notice of interview to her children and other parent
3. right for children and other parent to make submissions at interview
4. notice to other parent of interview and their right to have counsel present
(aspects of right of notice and right to reply)
4. Provision of reasons by decision maker
(required Immigration officer to give reasons for the decision—ultimately found that duty to give
reasons satisfied by notes of jr. admin officer that informed ultimate decision by sr., and that
notes showed reasonable apprehension of bias)
5 procedural fairness factors
L-H lays out methodology that court should apply in giving content to PF (five factors, don’t
confuse w/P&F)
1. what is the nature/character of decision being made and process followed in making it—the
more that the process and functions of tribunal and nature of decision making resemble judicial
decision making, more likely to require similar, trial-like PF (Knight)
2. nature of stat scheme, and relevant terms of statute re procedures and role of tribunal—greater
protection where no appeal procedure provided for in statute, and where decision
determinative/dispositive, and no further process to change decision
3. the importance of the decision to individuals affected, and the degree of impact on each—can
be others, beyond the claimant, such as children and other parent
4. legitimate expectations of the individual—doesn’t create rights in any substantive outcome, but
it will affect the content of PF, and may require additional process before the expected decision
leads elsewhere. Legit expectation that certain procedure will be followed will directly influence
procedure followed
5. procedural choices of the agency itself—esp when 1) parent statute of tribunal gives it ability
to choose it’s own process, and 2) esp when agency has discretion to choose what process
appropriate

 there’s still a lot of discretion w/in these factors, and discretionary aspect of decision
might weigh against other factors. Lots of things to consider and weigh differently
5 factors not exhaustive, but principled (p68). Principles help courts determine whether
procedures were fair. Factors unrelated to participation may also be important. The underlying
duty of PF relate to principle that individual(s) affected should have opportunity to present their
case fully and have decisions affecting their rights, interests, or privileges made using a fair,
impartial, and open process, appropriate to the statutory, institutional, and social context of the
decisions

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Application of 5 factors in Baker
1. nature/character: it was emphasized as discretionary, in guidelines that minister produced,
and involved broad policy consideration for Canada, i.e. who will we allow in Canada
have to consider the policy decision, along w/how much it affects her rights; distinguish from
decision b/n private parties. This leans more toward admin than judicial, b/c of policy aspects.
That said, still affected an individual, and didn’t involve balancing of interests.
2.nature of stat scheme: the decision itself by sn officer, but jn officer’s notes central. There
was right of appeal, but need for leave to appeal to be given by fed court—these lean toward
more process. This is an exception to the general rule that those not allowed to stay in Canada not
entitled—lesser procedural requirement b/c exception to general immigration law.
3. Effect on individual—greater the effect, more process
4. legit expectation: the fact that Canada has ratified the convention on rights of child, argued
that legit expectation; L-D disagrees, and says that it’s N/A—there has to be a specific
commitment to this individual
5. procedural choices of the agency itself: The Immigration Act outlines specific procedures,
and practice of agency was not to conduct interview in every case—this called for less process
Held re right to oral interview : no requirement for oral interview, as argued by Baker. Several
of factors weighed in favour of more relaxed procedural requirements; discretion and policy
oriented, and it being exception to general I Law. However, the effects on her and her family and
the need to get leave to appeal call for more process; decision maker has to give full consideration
of issues by allowing her to give written submission based on a full record of the evidence; this
was satisfied in her case

Duty to Give Reasons

Provision of Reasons:
Baker argues that DofF in these circumstances requires that reasons be given by decision make,
and that either notes of officer Lorenz should be considered the reasons, or that failure of Officer
Caden to give reasons for his decision should be taken to be breach of principles of fairness.
Traditional principle at CL that duty of fairness doesn’t require as a general rule that that
reasons be given for admin decision—no requirement in upper courts, but movement in lower
courts and house of lords toward it b/c, argued that:
1. reasons foster better decision making by ensuring that issues and reasoning well
articulated and therefore maybe more carefully thought out—process of writing
reasons for decision may guarantee better decision (brings discipline on decision
maker--requires more rigger)
2. allow parties to see that applicable issues have been carefully considered
3. invaluable if decision to be appealed, questioned, or considered on judicial review
4. those affected likelier to feel that they’ve been treated fairly/appropriately
Arguments Against
1. efficiency, expeditiousness—imposes burden on admin decision makers, may lead to
increased cost and delay
2. If decision doesn’t lend to thorough reasons, might be lack of candour on part of
admin officers, or archival/template reasons (where you generate the same response,
like being asked to apologise and satisfying that requirement at a basic level).
Decision making in different contexts should be considered in evaluating reasons
requirement

Held, L’H-D:

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 It is now appropriate to recognize that in certain circumstances the duty of PF will require the
provision of a written explanation for the decision. The strongest arguments in favour are
when decision has important significance to individual, when there’s a stat right of appeal, or
in other circumstances, some form of reasons should be required. The concerns can
accommodated by ensuring that reasons requirement under duty of F leaves sufficient
flexibility, tailored to a wide range of contexts, to decision makers by allowing different types
of written explanations to suffice.
Reasons are necessary in Baker’s circumstances; importance of H &C decision to those
affected militates in favour of reasons requirement. It would be unfair for a person subject to
a decision such as this one which is so critical to their future not to be told why the result was
reached. That said, reasons duty satisfied by notes given by jn officer (b/c they gave her these
when she asked for reasons and there was no other record of reasons for the decision, can
infer that these are the reasons, these affected the decision making process—this eg. of
flexibility in reasons requirement)

 Cuts both ways: this forms the basis for the SCC that there was a reasonable
apprehension of bias
 Would jn officer have said something differently had he known they’d be reviewed by
SCC
 Why didn’t SCC send it back to the tribunal to give reasons?
Bias in jr. officer’s letter:
 Use of capital letters, emphasis on children, expression of frustration w/system,
 V says that mental illness, limited employability, and 4 children are grounds to conclude that
she’ll be a burden on the social welfare system, although L-D saw this as bias
 Burden on social welfare system valid for Can. and limit to compassion

Via Rail Canada v. National Transportation Agency [2001] FCA

Duty to Give Reasons not satisfied
Facts:
 Appeal from decision of National Transportation Agency that held that a portion of VIA
Rail’s Special and Joint Passenger Tariff constitutes undue obstacle to mobility of persons
w/disabilities.
 Wheel-chair Basket B athletes, each accompanied by own assistant. Team leader complained
of undue obstacles to mobility, which was investigated.
 Under Special and Joint passenger tariff, ticket can be sold for disabled person and adult
attendant , capable of assisting person to get on and off trains and attending to personal needs
throughout trip. One fare applies to both passengers.
 Agency held that presence of personal attendant no excuse for VIA carrier not to provide
assistance to person during boarding and deboarding—this assistance shouldn’t be on the
assistant, and the obligation on the assistant is an undue obstacle.
 Disabled person entitled to same level of service whether traveling alon or w/escort. Agency
required that VIA show cause that Agency shouldn’t find obstacle undue. After VIA’s
submissions, Agency ordered that the words “the attendant must be capable of assisting the
disabled person to get on and off trains” be struck from tarrif and provision be added to
indicate VIA’s responsibility to board and deboard passengers.
 VIA ordered to issue bulletin to its EEs re the changes.

Issue:
Did the Agency provide adequate reasons for finding:

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 1) that the tariff constituted an obstacle to mobility of disabled persons; and
2) it’s find that this obstacle is undue (did reasons provide sufficient indication of the
reasoning process by which it determined that it is an obstacle to the mobility of a
disabled passenger to require that an attendant traveling on the same tkt be capable of
assisting passenger in getting on and off the train).
Held: The conclusion that the tariff was an obstacle is not supported by sufficient indication of
the reasoning process engaged by the Agency.

Duty to give reasons:

s. 39 of National Transportation Agency General Rules imposes duty to give reasons.
1. Assures parties that their representations considered;
2. Allows parties to effect right of appeal or judicial review—provide a basis for assessment
of possible grounds of appeal/review. Allow reviewing body to determine whether
decision maker erred and thereby render decision maker accountable to reviewing body.
This esp important where decision subject to deferential standard of review.
3. In regulated industry, regulator’s reasons might offer guidance for others subject to
regulator’s jurisdiction. Provide standard by which future activities of those affected can
be measured.

Content of Duty to give reasons

Duty to give reasons only fulfilled if reasons adequate—this depends on circumstances of case—
generally, adequate reasons are those that serve the functions for which the duty to provide them
was imposed (477).

NOT satisfied by reciting the submissions and evidence of the parties and stating a conclusion—
DM must:
1. Set out its findings of fact and the principal evidence upon which the findings were based.
2. reasons must address the points at issue
3. reasoning process must be set out, and reflect consideration of the main, relevant factors
Application:
The reasons provide no intimation of what constitutes an obstacle to mobility, and they’re not
sufficiently clear. The Agency doesn’t appear to have engaged in any reasoned consideration of
the tariff provisions.
Also inconsistencies—1) why is there an obligation for carrier to board and deboard but not
attend to personal needs on train (why does absence of one and not other constitute undue
obstacle)? 1) In 1995, the Agency said that the tariff was ok b/c it didn’t impose obligation on
personal attendant to assist boarding and deboarding in all circumstances, just that in some cases
they may be requested to by VIA—what’s different this time ’round.
Agency didn’t explain what makes obstacle, if there is one, undue. It should have considered
National Transportation Act, 1987 that says that nation’s transportation network should be
economic, efficient, viable, and effective. s. 3 of Act provides that each carrier, so far as
practicable, should conduct business under conditions that don’t constitute undue obstacle to
mobility of disabled persons. Agency was required to undertake a balancing of interests such that
the satisfaction of one interest does not create disproportionate hard-ship affecting the other
interest.
Enumerates many potentially relevant, fact/case-specific factors that balance b/n interests of
disabled passengers and, wrt VIA, operational factors and commercial/economic factors.

Effect of Breach of Duty to Give Reasons, Mullan(481)

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  Reviewing court may set aside decision if apparent from reasons that decision maker
(DM) misinterpreted legislation or made other error of law or failed to consider relevant
issues
o If reason’s read realistically show trib applied mind to most important issues,
court won’t necessarily infer from silence about other issues that they were
ignored
 When decisions contain legal error, public authorities not usually allowed to justify
decision, when challenged, on grounds not included in or contradictory to their stated
reasons
 Where legal duty to give reasons, its generally regarded as mandatory, so if tribunal
refuses/fails, it may be required by order of mandamus to do so
 Less straight forward:
1) if reason’s don’t reveal some legal error, but are unduly vague/ambiguous, can
reviewing court allow appeal or set aside decision as being wrong, even though
decision in a substantive sense could be properly reached by law?
2) is a decision supported by bad reasons liable to be set aside, even though tribunal has
also included reasons that in law justify its conclusion?
 Canada’s view has generally been that decision that fails to give adequate reasons may be
set aside as erroneous & if no reasons given, decision nullified
 Ambivalent attitude across jurisdictions re legal effect of a breach of stat duty to provide
adequate reasons; one reason is b/c it’s difficult to fashion appropriate relief
 If absence of reasons is a legal flaw in decision, court will generally remit to tribunal,
although cases where court has reversed decision
 What’s purpose of remitting? Risk of disingenuous /mere formality ex post facto
rationalization
o May be practical problem to get same members to sit and generate reasons
 Can remit cases for rehearing of only the aspects not adequately dealt w/
 CL remedies (certiorari, prohibitions, mandamus, injunctions, declarations) when courts
exercise supervisory jurisdiction over admin tribs, are discretionary
 Can refuse remedy under ON Judicial Review Procedure Act, 1980: s. 3. if no substantial
wrong/miscarriage of justice, court may refuse relief/make order validating decision
where only ground for relief is defect in form or technical irregularity
 However, failure to give reasons when legally required not normally viewed as merely
formal error
 If there are bad reasons:
o if they’re independent of/alternative to good reasons, then decision may be
upheld on basis of valid reasons
o if the reasons are cumulative—where the bad reasons were relied upon at least in
part at arriving at decision—decision will generally be set aside
 Party can’t ask court to review legality of the reason if decision not adverse to the
applicant; it’s the decision that can be set aside, not the reasons alone

Congrégations des témoins de Jéhovah v Lafontaine [2004] 2 SCR 650 (Can)

When making an administrative decision affecting individual rights, privileges or interests,
a public body like a municipality is bound by a duty of procedural fairness whose content
varies according to five (Baker) factors
Duty to give reasons not satisfied
Facts:

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JWs applied to Lafontaine municipal council to establish a temple in a residential area not zoned
for houses of worship, b/c they thought that there was no land available in the zoned area. The
city rejected application to rezone w/elaborate reasons on grounds that it would result in
increased burden for tax-payers (city commissioned studies that showed this, b/c churches are
exempt from taxes). The JWs then bought commercial land and applied twice for rezoning. The
city rejected this again, but in rejection number 2 and 3 didn’t give reasons [City got snarky: ‘The
municipal council of Lafontaine is not required to provide you with a justification and we
therefore have no intention of giving reasons for the council’s decision.’]. The JWs challenged
the refusal as a breach of s. 2of Charter (FoR). The trial judge dismissed the application, b/c there
were available lots in the worship friendly zone. The CA set aside this finding of fact, but the
majority dismissed the appeal on the ground that the municipality was not responsible for the
unavailability of land and was under no positive obligation to preserve freedom of religion.
Issues:
 Did the Municipality have a duty to give reasons?
 What is the content of the duty?
(we’re not dealing w/FoR)

Held: Appeal allowed. Requirement upon municipality to give reasons for zoning decision in 2 nd
and 3rd application, as part of duty of procedural fairness, given the discretion and potential for
abused, the importance of the decision on the parties, the legit expectations, the lack of statutory
appeal.
When making an administrative decision affecting individual rights, privileges or interests, a
public body like a municipality is bound by a duty of procedural fairness whose content varies
according to five (Baker) factors. The city breached that duty and its actions verged on bad faith.
Remedy: Second and third refusals set aside; remitted to municipality for reconsideration

Reasoning: Consider 5 Baker Factors:

What is content of duty? Is there duty to give reasons?
• SCC majority: municipality owed duty of fairness; content based on Baker factors:
1. Nature of decision and decision making process employed by the public organ
 both administrative and political;
 [6-7] decision to propose a draft by-law rezoning municipal territory is made by an
elected council accountable to its constituents in a manner analogous to that in which
Parliament and the provincial legislatures are accountable to their own … tempered
by city’s chare to act in public interest. What is in the public interest is a matter of
discretion to be determined solely by the municipality. If it acts honestly and within
the limits of its statutory powers, the reviewing court is not to interfere with the
municipal decision unless “good and sufficient reason be established.”
A Caveat: They can’t act in an arbitrary manner, and abuse their discretion.
“The need for judicial oversight of arbitrary municipal decision making is only
heightened by the aggravated potential for abuse of discretionary statutory authority”
(Roncarelli)
(The more discretion, the more potential for JR?)
2. Statutory scheme and its provisions under which public body operates:
 no appeal mechanism—or this decision being determinative—demands greater
procedural protections (Baker)
3. Importance of decision to individual or congregation; importance to the Congregation:
practice of religion
 Ability to worship and exercise freedom of religion (Driving factor—weighs heavily
in duty to give reasons)

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  Stringency of procedural protection proportional to the importance to/impact on the
lives affected
4. Legitimate Expectations
 Municipality had provided reasons in applications #1 and #2; gives rise of legitimate
expectations; string of decisions with same purpose;
 “Where prior conduct creates for the claimant a legitimate expectation that certain
procedures will be followed as a matter of course, fairness may require consistency”
[10]
5. Nature of Deference Due to Decision Maker
 In rezoning, municipalities have greater expertise than the judiciary, but less weight
here because, no record indicating that city engaged its expertise (no reasons so no
record)
What was required and why:
[12] The five Baker factors suggest that the Municipality’s duty of procedural fairness to the
Congregation required the Municipality to carefully evaluate the applications for a zoning
variance and to give reasons for refusing them … it is also consistent with Baker … that if an
organ of the state has a duty to give reasons and refuses to articulate reasons for exercising its
discretionary authority in a particular fashion, the public body may be deemed to have acted
arbitrarily and violated its duty of procedural fairness
[13]‘Giving reasons for refusing to rezone in a case such as this serves the values of fair and
transparent decision making, reduces the chance of arbitrary or capricious decisions, and
cultivates the confidence of citizens in public officials.... This duty applied to the first application,
and was complied with. If anything, the duty was stronger on the Congregation’s second and third
applications, where legitimate expectations of fair process had been established by the
Municipality itself.’

VH: this is “disciplinary factor” for duty to give reasons

Municipality acted unlawfully:

‘In refusing to justify its decision to deny the second and third applications for zoning variances,
the Municipality breached the duty of procedural fairness it owed to the Congregation…. The
Municipality acted in a manner that was arbitrary and straddled the boundary separating good
from bad faith.’ [30]

VH:
Was SCC concerned about something on the record in this village dealing with Jehovah
Witnesses?
This was important decision following Baker on duty to give reasons— threshold circumstances
including:
1) significance to individual; 2) no statutory right of appeal
If you’re counsel for city, maybe you could have advised them not to give thorough reasons the
first time round
Given it was remitted, and ultimately rejected by city, can see the potential for the superficiality
of the duty to give reasons

Dunsmuir v. New Brunswick, 2008 SCC 9

3 areas of impact:
1. impacts upon methodology for arriving at standard of review
2. choice and application has changed—collapse of 3 standard into 2

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3. applicability of admin law concepts of PF in narrow context of dismissal of public office
holders—dismissed pursuant to statute, relationship governed by contract
Facts:
D was employed by the DOJ of NS.  He held a position under the Civil Service Act (barring any
statute, ordinary rules of contract will govern termination of EE in civil service and was an office
holder “at pleasure”).  His probationary period was extended twice and the employer reprimanded
him on three separate occasions during the course of his employment.  On the third occasion, a
formal letter of reprimand was sent to D warning him that his failure to improve his performance
would result in further disciplinary action up to and including dismissal. While preparing for a
meeting to discuss D’s performance review the employer concluded that D was not right for the
job.  A formal letter of termination was delivered to D’s lawyer the next day.  Cause for the
termination was explicitly not alleged and D was given four months’ pay in lieu of notice.
 
 D commenced the grievance process under s.  100.1 of the Public Service Labour Relations
Act (“PSLRA”), alleging that the reasons for the employer’s dissatisfaction were not made
known, that he did not receive a reasonable opportunity to respond to the concerns, that the
employer’s actions in terminating him were without notice, due process or procedural
fairness, and that the length of the notice period was inadequate. 
 Grievance was denied and then referred to adjudication. 
Adjudication
 A preliminary issue of statutory interpretation: where dismissal was with notice or pay in lieu
thereof, the adjudicator was authorized to determine the reasons underlying the province’s
decision to terminate. 
 power to sub remedy limited to where EE dismissed for cause
 The adjudicator held that the referential incorporation of s. 97(2.1) of the PSLRA into
s. 100.1(5) of that Act meant that he could determine whether D had been discharged or
otherwise disciplined for cause [11-12], thereby giving him authority to sub remedy. 
 Ultimately, the adjudicator made no finding as to whether the discharge was or was not for
cause. 
 On the merits, adj found that . 
 As D’s employment was hybrid (public officer and civil servant) in character, D was entitled
to and did not receive procedural fairness in the employer’s decision to terminate his
employment. 
 He declared that the termination was void ab initio and ordered D reinstated as of the date of
dismissal, adding
o in the event reinstatement order quashed on judicial review, the appropriate notice
period would be eight (rather than 4) months.
 Adjudicator’s reading of act getting dubious/questionable—not clear that that was meaning of
act. After he concludes that he has authority, adjudicator decides that D entitled to hearing,
based on Knight (application of PH requirements and right to hearing where EE who’s in
public office w/statutory flavour herein dismissed).
 Courts could have overruled, on grounds that he was entitled to PF but was satisfied, b/c he
had right to grieve, got adjudication, and right of appeal—this was approach at lower courts

Court of Queen’s Bench

 On judicial review, the CQB applied the correctness standard and quashed the adjudicator’s
preliminary decision, concluding that the adjudicator did not have jurisdiction to inquire into
the reasons for the termination, and that his authority was limited to determining whether the
notice period was reasonable.
  On the merits, the court found that D had received procedural fairness by virtue of the

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 grievance hearing before the adjudicator.  Concluding that the adjudicator’s decision did not
stand up to review on a reasonableness simpliciter standard, the court quashed the
reinstatement order but upheld the adjudicator’s provisional award of eight months’ notice. 
Court of Appeal
 The proper standard with respect to the interpretation of the adjudicator’s authority under the
PSLRA was reasonableness simpliciter, not correctness, and that the adjudicator’s decision
was unreasonable. 
 It found that where the employer elects to dismiss with notice or pay in lieu of notice,
s. 97(2.1) PSLRA does not apply and the employee may only grieve the length of the notice
period.  It agreed with the reviewing judge that D’s right to procedural fairness had not been
breached.
 
VH: Court could have overruled, on grounds that he was entitled to PF but was satisfied, b/c he
had right to grieve, got adjudication, and right of appeal—this was approach CQB
Issues: What’s appropriate standard of review of labour adjudicator’s decision/authority under
PLSRA wrt civil termination of servant/public officer (dismissible w/cause)
[24] At issue, firstly is the approach to be taken in the judicial review of a decision of a particular
adjudicative tribunal which was seized of a grievance filed by the appellant after his employment
was terminated.  This appeal gives us the opportunity to re-examine the foundations of judicial
review and the standards of review applicable in various situations.
 [25] The second issue involves examining whether the appellant who held an office “at pleasure”
in the civil service of New Brunswick, had the right to procedural fairness in the employer’s
decision to terminate him.  On this occasion, we will reassess the rule that has found formal
expression in Knight.
 [26] The two types of judicial review, on the merits and on the process, are therefore engaged in
this case.  Our review of the system will therefore be comprehensive, which is preferable since a
holistic approach is needed when considering fundamental principles.
 
Held: Appeal from NB CA dismissed. The standard of review is reasonabless. The adjudicator’s
reading of the PSLRA, which allowed him to inquire into the reasons for discharge, or impose a
duty on ER to show cause before dismissal, was unreasonable and inconsistent w/employment
contract, under which the employment relationship between was governed.  The combined effect
of ss. 97(2.1) and 100.1 of the PSLRA cannot, on any reasonable interpretation, remove the ER’s
right, under contract, to terminate EE with reasonable notice or pay in lieu thereof without
asserting cause.  Contrary to adjudicator’s decision, which McLachlin says was in error, on the
merits, D wasn’t entitled to procedural fairness above the contractual rights. Where a public
employee is employed under a contract of employment, regardless of his or her status as a public
office holder, the applicable law governing his or her dismissal is the law of contract, not general
principles arising out of public law.
Collapsing PU and R into single deferential standard of reasonableness, which is applicable to
adjudicator, including his own reading of his authority, b/c:
1. strong Privative clause
2. nature of labour relations regime called for deference, given expertise of adjudicator--
underlying mutual agreement of parties; stat provision closely related to adjudicators finding;
legislative purpose to achieve cheap and fast method of dispute resolution
3. nature of Q: legal, but not of central importance to adjudicative system, and
1. outside of adjudicator’s expertise
Significance:

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1) Substantive review: leaves intact the constitutional role of courts on review for Qs of
jurisdiction and constitutional/Charter
[28] Rule of law: all exercises of public authority must find their sources in law …
[29] Administrative powers are exercised by decision makers according to statutory regimes that
are themselves confined.  A decision maker may not exercise authority not specifically assigned
to him or her.  By acting in the absence of legal authority, the decision maker transgresses the
principle of the rule of law.  Thus, when a reviewing court considers the scope of a decision-
making power or the jurisdiction conferred by a statute, the standard of review analysis strives to
determine what authority was intended to be given to the body in relation to the subject matter. 
This is done within the context of the courts’ constitutional duty to ensure that public authorities
do not overreach their lawful powers (Crevier, Dr. Q)

[31] The legislative branch of government cannot remove the judiciary’s power to review actions
and decisions of administrative bodies for compliance with the constitutional capacities of the
government.  Even a privative clause, which provides a strong indication of legislative intent,
cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance,
[1973] S.C.R. 120, at p. 127).  The inherent power of superior courts to review administrative
action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in
ss. 96 to 101 of the Constitution Act, 1867: Crevier.  As noted by Beetz J. in U.E.S., Local 298 v.
Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, “[t]he role of the superior courts in maintaining the rule
of law is so important that it is given constitutional protection”.  In short, judicial review is
constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement
of jurisdictional limits.  As Laskin C.J. explained in Crevier, at pp. 237-38:
Where ... questions of law have been specifically covered in a privative enactment this Court, as
in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests
of an express legislative policy to protect decisions of adjudicative agencies from external
correction.  Thus, it has, in my opinion, balanced the competing interests of a provincial
Legislature in its enactment of substantively valid legislation and of the courts as ultimate
interpreters of the British North America Act, and s. 96 thereof.  The same considerations do not,
however, apply to issues of jurisdiction which are not far removed from issues of constitutionality.  
It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its
own jurisdiction without appeal or review.

VH:
 Court implies that purpose of its role is both to preserve federalism status quo and to
protect individual against tyranny of majority-court implies that it’s both. Also, court’s
importance as bulwark for rule of law
 maintains existing constitutional role of courts, but it lessens the impact of privative
clauses relative to CUPE 1979 (but not more so than other cases, such as Levis),
 Leaves intact, in light of CUPE 1979, the fundamental recognition that stat provision
capable of more than one defensive interpretation, and not up to court to choose best
interpretation—role often to respect the view of the relevant decision maker—esp. in
context of labour arbitrator.
 Majority and Binnie clear that not reverting to formalistic approach to jurisdiction done
away w/in CUPE (prelim. Q doctrine, which was door to improper intervetion by courts
—that door not to be reopened)
 CUPE 1979 was driven by presence of strong privative clause, and importance of courts
respecting legislative direction not to interfere w/such decisions except on constitutional
grounds.
 Binnie most in line w/CUPE 1979 re respect [143].
o It’s more than just another factor in the hopper of P&F: “It should
presumptively foreclose JR on the basis of outcome on substantive
grounds unless the applicant can show that the clause, properly

119
 interpreted, permits it or there is some legal reason why it cannot be
given effect.”
o courts should defer to agency when PC says so.
 Majority much more circumspect, and reasons notable for unclear language in privative
clause calling fore deference (even dissent more clear than majority)
 Post CUPE, and reflecting on modern standard of review—label of P&F approach
(modern), esp in Baker, where series of factors collected together for courts to consider
when arriving at standard of review. They’re all still relevant, but court moves away from
using a list. Although it delivered flexibility, the benefit outweighed by the confusion,
and whole lot of time and money expended on what standard of JR should be, rather than
the merits of the decision.
 It’s characteristic of admin law that it applies to lots of decision makers in lots of
decisions, and presents difficulties to arrive at clear methodology that will serve all kinds
f decisions. Eg. Needs to deal w/admin tribunls, ministers, economic/scientific regulator
boards, low level public servants in immigration commissions of inquire, and lots of
elected bodies doing things
 Vast range of public law relationships, and hard to arrive at clear and defensible
statement that can accommodate the not yet known decisions, and satisfy all types of
claimants.
 Majority wants to tackle the problem of confusion. Criteria: develop a principled
framework that’s more coherent and workable
 Majority’s reading meant to apply to all areas of admin decision-making, and not just to
adjudicative tribunals, which is different than Binnie’s take
[33] Although the instant appeal deals with the particular problem of judicial review of the
decisions of an adjudicative tribunal, these reasons will address first and foremost the structure
and characteristics of the system of judicial review as a whole
[26] The two types of judicial review, on the merits and on the process, are therefore engaged in
this case.  Our review of the system will therefore be comprehensive, which is preferable since a
holistic approach is needed when considering fundamental principles .
 
Court’s 2 major changes:
1. [63] Changes term from P&F approach to standard of review analysis.
2. [45] collapse into 2 standards—correctness and reasonableness
 [57] Standard of review analysis may still call for the previous factors, but necessarily
every step, as in Dr. Q. Existing jurisprudence in its own area is helpful—e.g. question by
given tribunal on given matter requires correctness.
 2 steps; 1) existing jurisprudence; 2) where that’s unfruitful, go to factors (on exam, we’ll
be looking at the factors, b/c we don’t know jurisprudence in specific areas of admin law)
 [64] may still be necessary to look at factors like privative clause, expertise, purpose of
tribunal/legislative intent, nature of Q at issue. But, maybe won’t need all, b/c one or less
than all may be determinative.
VH: Best to go through all factors; don’t have to discuss in detail, but indicate that aware of
standards, but some weigh more heavily.
[43] The Court has moved from a highly formalistic, artificial “jurisdiction” test that could easily
be manipulated, to a highly contextual “functional” test that provides great flexibility but little
real on-the-ground guidance, and offers too many standards of review. What is needed is a test
that offers guidance, is not formalistic or artificial, and permits review where justice requires it,
but not otherwise. A simpler test is needed.

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Bastarache & Lebel & 3 (majority)
Binnie
Deschamps

 All judges agree on right outcome; Binnie differs in how the JR should be organized, but
on board in keeping a deferential standard.
 Charron and Rothstein take conservative approach—liken JR of admin agency to higher
courts review of lower court (a whole different path that we won’t address).

Different factors may be more significant, and preclude need to look at others;
Privative clause:
[52] Strong PC is strong indication of reasonableness standard, but not determinative. Binnie
limits that a strong PC can’t take away from jurisdictional and constitutional Qs, whereas the
majority implies that it’s never determinative.
In face of strong PC, ask:
 are constitutional issues at stake that PC can’t oust; is this truly a jurisdictional Q;
 is there some other reason, having read PC in right context,
 that it doesn’t oust court’s role (probably thinking about questions that are of general
importance, that are left to administrative decision maker, that are wider legal issues outside
of decision makers expertise—general legal issues outside adjudicator’s expertise, e.g CUPE
v. City of Toronto, where admin decision maker deciding whether criminal claim of sexual
assault weighs into admin decision—has general consequences)
Nature of the Question
Certain types of questions lead to reasonableness presumption
[53] Where the question is one of fact, discretion or policy, deference will usually apply
automatically (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 599-600; Dr. Q,
at para. 29; Suresh, at paras. 29-30).  We believe that the same standard must apply to the
review of questions where the legal and factual issues are   intertwined with and cannot be readily
separated.
(VH: Dr. Q, attracted deference b/c it was a factual Q that turned on findings of credibility.
Baker, and dissent in ATCO)
[54] legal questions that arise from tribunals’ enabling statute or statute closely connected to its
function, likelier deferential (**this is new)
[55]A consideration of the following factors will lead to the conclusion that the decision maker
should be given deference and a reasonableness test applied:

—     A privative clause: this is a statutory direction from Parliament or a legislature indicating the
need for deference.

—     A discrete and special administrative regime in which the decision maker has special
expertise (labour relations for instance).

—     The nature of the question of law.  A question of law that is of “central importance to the
legal system ... and outside the ... specialized area of expertise” of the administrative decision
maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62).  On the
other hand, a question of law that does not rise to this level may be compatible with a
reasonableness standard where the two above factors so indicate.
[59] Administrative bodies must also be correct in their determinations of true questions of
jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended
definitions adopted before CUPE. It is important here to take a robust view of jurisdiction.  We
neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the
jurisprudence in this area for many years.  “Jurisdiction” is intended in the narrow sense of

121
whether or not the tribunal had the authority to make the inquiry.   In other words, true jurisdiction
questions arise where the tribunal must explicitly determine whether its statutory grant of power
gives it the authority to decide a particular matter. The tribunal must interpret the grant of
authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of
jurisdiction

VH: court seems to take for granted that there are cases in which law and fact can be separated
—the court is encouraging us to segregate
 When is it ok to segregate (Levis vs. Abella in VIA rail; latter said to look at tests for
deciding if appropriate to separate, and if not, presumption of deference).
 Jurisdictional Qs attract correctness; segregate it out and apply C standard

Consider 4 categories of questions:

1. Q of Law: statutory interpretation, jurisdictional, constitutional
2. Q of Fact: decision dealing w/credibility, what happened in specific areas
3. Q of Discretion and policy: what’s authority bestowed in statue on decision maker—authority
to make in public interest, lots of ways to get at the decisions
4. Questions where the legal issues cannot be easily separated from the factual issues. Statute lays
out range of factors to get at decision (e.g. immigration)-- (they don’t talk about mixed fact and
law—rather, ask whether Q of law can be segregated out--How extricable are legal Qs from
policy Qs in decision as whole?
[51] Having dealt with the nature of the standards of review, we now turn our attention to the
method for selecting the appropriate standard in individual cases.  As we will now demonstrate,
questions of fact, discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of reasonableness while
many legal issues attract a standard of correctness.  Some legal issues, however, attract the
more deferential standard of reasonableness.

Expertise of Tribunal [54] deference may also be warranted where admin tribunal developed
particular expertise

Collapsing 2 deferential standards into 1

 Writing on wall in VIA rail and in ?
 Once a reasonableness standard, how does it differ from PU and reasonabless that
came before.
 Q will be how to apply it—likely headed toward spectrum based approach (Binnie);
debate w/in single standard. Although Ryan rejected that might apply reasonableness
more or less deferential, this collapse will required such an approach
 Majority doesn’t confront Q of whether at a spectrum, but that we’re not going back
to pre-Southam days (PU and Correctness)
 SCC clear that Post-D reasonableness is not the same as Pre-D, R or PU.
VH thinks that PU will be diluted
 [paras 47-9] Definition is not specific: reasonableness as deference, and deference as
“respect”
 Use this as our guidance, although it’s pretty ambiguous.
 Court can’t re-weigh factors considered by agency, and doesn’t get to decide by itself what is
reasonable—Binnie and majority agree that court focuses upon answer given by admin body,
the reasons it gave, or could have given (see Dr. Q—court doesn’t construct own analysis
from scratch)
 As Binnie said, this won’t make it clearer in application

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[49] Deference in the context of the reasonableness standard therefore implies that courts will
give due consideration to the determinations of decision makers.
[50] When applying the correctness standard, a reviewing court will not show deference to the
decision maker’s reasoning process; it will rather undertake its own analysis of the question. 
VH: In future cases, can expect SCC to engage w/lower courts on whether or not level of
deference/respect appropriate in particular case; pressure will develop on SCC to give more
guidance on what it means.

 In D, all judges agreed that it should be collapsed (Binnie acquiesced) and that the
arbitrator failed to meet that standard.
 Deschamps found the standard to be correctness, and also would have overturned the
arbitrator’s decision.
 Deschamps emphasizes less the privative clause; says that it’s a Q of law, not in
jurisdiction of the arbit
 The others look at the remaining 3 factors, beyond the PC.
VH:
No one tells us what reasonableness means. In previous cases, could choose PU (as defined in
Dr. Q—high end deference) or reasonableness. These were not the same.
Now, court only has one setting in which decision calls for deference, and it will probably lead to
a spectrum, by which you speak of more or less. But, how will you justify applying more or less
deference?
 Binnie suggests, and VH does too, to practice arguments based on the 4 P & F factors as to
why intervening or choosing not to intervene (i.e. why you’re showing or not showing
deference) practice arguments based on the 4 P & F factors
 Draw on the facts, the language of the statute, what the decision maker did, and whether that
is reasonable. Whether privative clause or regulatory scheme, weigh in favour of deference
and lack of intervention
 Here, they all intervene, look at interpretation of statute given by arbitrators, and ask whether
it’s ok, not only in the language of the statute, but the effect of his interpretation.
There’s always been a continuum, and courts tend to defer to reasons of labour arb
3 judge minority moves away from deference in labour relations, and does away w/focus on
privative clause; the majority and Binnie are not on board with this, but rather a return to CUPE
1979
Pre-Southam, also only 2 standard, but they were C and PU
VH: Reasonableness will give courts more justification to intervene, where before deference
would have been shown on a PU standard
 Find meaning for reasonableness in light of all the cases we’ve covered.

4 Things Dunsmuir Overrules:

1. Southam and Ryan, Iacobucci, 3 standards collapsed into 2. Overrules what these cases say
about the basis for distinguishing PU from R
2. Dr. Q. The requirement that lower courts must go through, always, all factors in arriving at
the standard. Don’t necessarily have to go through in all cases. Majority says that in terms
of nature or Q, may drive it. E.g. if it’s factual, if legal can’t be distinguished from fact, or?
Then deference in most cases. True jurisdictional Qs, constitutional Qs, and Qs relevant to
legal profession? as whole, which fall outside of expertise, less deference. This gives us
opportunity to weigh factors on exam (we should still address all the factors)
3. Bibeault; new name, no longer the P &F approach

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 4. Knight; the existence of public law right of procedural fairness for public office holders re
dismissal, in addition to whatever their contract holds
*VH: shifted uncertainty from P&F to what reasonableness means

Procedural fairness:

Knight
 This impact of case is narrow—deals w/one context in which person entitled to procedural
fairness, when dismissed from public office, or position that holds statutory flavour (right
to hearing)
 Now, no public law of dismissal in cases where person employed by govt pursuant to
employment contract; contract will govern, followed by CL or private law, which allows
them to be dismissed if notice, or pay in lieu of notice is given.
 Here, D given 4 mos. Pay in lieu of notice; he was entitled to adjudicate contractual right,
and got 8 mos ultimately, but no additional public law right to a hearing
 In light of L-H-D in Knight; “fairness dictates that admin body be cognizant of
circumstances, and office holder himself is capable of giving them info.”
 Used to distinguish private from public b/c 1) public offices were viewed as form of
property and could be reclaimed under principles of natural justice, whereas EEs dismissed
in breach of contract could only sue for damages b/c specific performance not available for
personal service—n/a now b/c public office not viewed as property; 2) A second and more
persuasive reason for the distinction is that dismissal from public office involves the
exercise of delegated statutory power and should therefore be subject to public law controls
like any other administrative decision (Knight). In contrast, the dismissal of a contractual
employee only implicates a public authority’s private law rights as an employer; 3) third
reason is that, unlike contractual employees, office holders did not typically benefit from
contractual rights protecting them from summary discharge (Ridge v. Baldwin and
Nicholson)--in both cases the statutory language purported to authorize dismissal without
notice. The holders of an office “at pleasure” were in an even more tenuous position since
by definition they could be dismissed without notice and without reason. Because of this
relative insecurity it was seen to be desirable to impose minimal procedural requirements in
order to ensure that office holders were not deprived of their positions arbitrarily
(Nicholson, Knight).
[102] In our view, the existence of a contract of employment, not the public employee’s status as
an office holder, is the crucial consideration. Where a public office holder is employed under a
contract of employment the justifications for imposing a public law duty of fairness with respect to
his or her dismissal lose much of their force.
 Higher standards applied in public office than in private, b/c want to avoid arbitrary or
poorly informed decision, BUT, even if public office:
[104] Where the terms of the employment contract were explicitly agreed to, it will be assumed
that procedural fairness was dealt with by the parties
[105] In the context of this appeal, it must be emphasized that dismissal with reasonable notice is
not unfair per se ... It is a well-established principle of the common law that, unless otherwise
provided, both parties to an employment contract may end the relationship without alleging cause
so long as they provide adequate notice … where public employers do act in bad faith or engage
in unfair dealing, the private law provides a more appropriate form of relief and there is no reason
that they should be treated differently than private sector employers who engage in similar
conduct. 
 

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VH: Do employment contracts alone protect against concerns of arbitrariness in dismissal of a
public officer?
 Can argue that there are unique concerns for govt employees: one is imbalance of power—
when they’re hired, they’ll accept terms in a contract b/c there’s competition for the job.
Later, they’ll be bound to same contract (e.g. police chief who’s investigating a number of
officers for corruption, who lean on govt to fire him, and there’s no appeal, just dismissal)

2 Exceptions Where Public Law Right To Hearing On Dismissal:

1. Where public EE not protected by contract, and role to fulfill constitutionally defined state role
[115] judges and ministers of crown, and maybe others; maintain PL right of PF, b/c they’re truly
subject to rule of crown, and want to ensure that power not exercised capriciously (this is very
much like arbitrariness concern in Knight)

2. Where statute contains term that necessarily provides for a duty of fairness (e.g. Malloch,
teachers given 3 wks notice, under statute; House of Lords said this implied a right for teacher to
make representations at meeting where dismissal motion considered)
[116]Whether and what type of procedural requirements result from a particular statutory power
will of course depend on the specific wording at issue and will vary with the context

VH: This is a narrow aspect of Dunsmuir, but also a narrow element of our course’s subject
matter dealing w/PF

Summary of Case Law in Dunsmuir

Dunsmuir v. New Brunswick 2008 SCC 9
Ridge v. Baldwin (1963)
 Development of the Duty of Fairness: The modern concept of the procedural fairness in
administrative law was inspired by the House of Lords’ landmark decision in Ridge v.
Baldwin, a case which involved the summary dismissal of the chief constable of Brighton.
 The House of Lords declared the chief constable’s dismissal a nullity on the grounds that the
administrative body which had dismissed him had failed to provide the reasons for his
dismissal or to accord him an opportunity to be heard in violation of the rules of natural
justice.
 Central to the reasoning in the case was Lord Reid’s distinction between (i) master-servant
relationships (i.e. contractual employment), (ii) offices held “at pleasure,” and (iii) offices
where there must be cause for dismissal, which included the chief of constable’s position.
 According to Lord Reid, only the last category of persons was entitled to procedural fairness
in relation to their dismissal since both contractual employees and officer holders employed
‘at pleasure” could be dismissed without reason
 Ridge v. Baldwin marked an important change of judicial policy, indicating that natural
justice was restored to favour and would be applied on a wide basis.
Nicholson (1979)
 Natural Justice: The principles established by Ridge v. Baldwin were followed by this Court
in Nicholson
 Nicholson, like its U.K. predecessor marked the return to a less right approach to natural
justice in Canada
 Nicholson concerns the summary dismissal of a probationary police officer by a regional
board of police commissioners
 Laskin C.J. held that dismissal void on the ground that the officer fell into Lord Reid’s third
category and was therefore entitled to the same procedural protections as in Ridge v. Baldwin

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 Although Ridge v. Baldwin and Nicholson were concerned with procedural fairness in the
context of the dismissal of public office holders the concept of fairness was quickly extended
to other types of administrative decisions (see Martineau, Inuit Tapirisat, Cardinal)

The Rule of Law, Legislative Intent and Standard of Review

 The rule of law is maintained b/c the courts have the last word on jurisdiction and legislative
supremacy is assured b/c determining the applicable standard of review is accomplished by
establishing legislative intent
 The legislative branch of government cannot remove the judiciary’s power to review actions
and decisions of administrative bodies for compliance with the constitutional capacities of the
government. Even a privative clause which provides a strong indication of legislative intent
cannot be determinative in this respect
CUPE (1979)
 Patent Unreasonableness: Dickson J introduced the idea that, depending on the legal and
administrative contexts, a specialized administrative tribunal with particular expertise, which
has been given the protection of a privative clause, if acting within its jurisdiction, could
provide an interpretation of its enabling legislation that would be allowed to stand unless “so
patently unreasonable that its construction cannot be rationally supported by the relevant
legislation and demands intervention by the court upon review.”
 Misuse of Jurisdiction by Courts/Greater Deference to Administrative Decision: Prior to
CUPE, judicial review followed the “preliminary question doctrine” which inquired into
whether a tribunal had erred in determining the scope of its jurisdiction. By simply branding
an issue as “jurisdictional” courts could replace a decision of the tribunal with one they
preferred, often at the expense of a legislative that the matter lie in the hands of the
administrative tribunal.
 CUPE marked a significant turning point in the approach of courts to judicial review and
Dickson J.’s warning that courts “should not be alert to brand as jurisdictional and therefore
subject to broader curial review, that which may be doubtfully so.” Dickson J.’s policy of
judicial respect for administrative decision making marked the beginning of the modern era
of Canadian administrative law.
Crevier (1981)
 Judicial Review b/c of Jurisdiction: The inherent power of superior courts to review
administrative action and ensure that it does not exceed its jurisdiction stems from the
judicature provisions in ss. 96 to 101 of Constitution Act, 1867
 Where…questions of law have been specifically covered in privative enactment, this Court,
as in Farrah has not hesitated to recognize this limitation on judicial review as serving the
interests of an express legislative policy to protect decisions of adjudicative agencies from
external correction. Thus, it has, in my opinion, balanced the competing interests of a
provincial Legislature in its enactment of substantively valid legislation and of the courts as
ultimate interpreters of the British North America Act, and s. 96 thereof. The same
considerations do not, however, apply to issues of jurisdiction which are not far removed
from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the fact
of s. 96, to determine the limits of its own jurisdiction without appeal or review
Cardinal (1985)
 Duty of Fairness: LeDain J. stated that the duty of fairness was a general principle of law
applicable to all public authorities
 The existence of a general duty to act fairly will depend on (i) the nature of the decision to be
made by the administrative body; (ii) the relationship existing between that body and the

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 individual; and (iii) the effect of that decision on the individual’s rights (this statement re:
duty to act fairly was relied on in Knight)
Bibeault (1988)
 Judicial Review b/c of Jurisdiction: The role of the superior courts in maintaining the rule of
law is so important that it is given constitutional protection. Judicial review is constitutionally
guaranteed in Canada particularly with regard to the definition and enforcement of
jurisdictional limits
 Correctness: CUPE did not do away with correctness review altogether and in Bibeault the
Court affirmed that there are still questions on which a tribunal must be correct. As Beetz J.
explained, “the jurisdiction conferred on administrative tribunals and other bodies created by
statute is limited, and…such a tribunal cannot by a misinterpretation of an enactment assume
a power not given to it by the legislator”
 Pragmatic and Functional Analysis: Bibeault introduced the concept of a “pragmatic and
functional analysis” to determine the jurisdiction of a tribunal, abandoning the “preliminary
question” theory. In arriving at the appropriate standard of review, courts were to consider a
number of factors including the wording of the provision conferring jurisdiction on the
tribunal, the purpose of the enabling statute, the reason for the existence of the tribunal, the
expertise of its members and the nature of the problem.
Knight (1990)
 Public Law Duty of Fairness: The dispute in Knight centred on whether a board of education
had failed to accord procedural fairness when it dismissed a director of education with three
months notice pursuant to his contract of employment. The main issue was whether the
director’s employment relationship with the school board was one that attracted a public law
duty of fairness.
 L’Heureux-Dube held that it did attract such a duty on the ground that the director’s position
had a “strong ‘statutory flavour’” and could thus be qualified as a public office
 In doing so, she specifically recognized that, contrary to Lord Reid’s holding Ridge v.
Baldwin, holders of an office “at pleasure” were also entitled to procedural fairness before
being dismissed. The fact that the director’s written contract of employment specifically
provided that he could be dismissed with three months’ notice was held not to be enough to
displace a public law duty to act fairly
 Procedural Fairness in the Public Employment Context: Ridge v. Baldwin and Nicholson
established that a public employee’s right to procedural fairness depended on his or her status
as an office holder. While Knight extended a duty of fairness to office holders during
pleasure, it nevertheless upheld the distinction between officer holders and contractual
employees as an important criterion in establishing whether a duty of fairness was owed.
Courts have continued to rely on this distinction, either extending or denying procedural
protections depending on the characterization of the public employee’s legal status as an
office holder or contractual employee.
 Office Holders at Pleasure and Procedural Fairness : it was held that the holder of an office “at
pleasure” was entitled to be given the reasons for his or her dismissal and an opportunity to
be heard before being dismissed
 The Court in Dunsmuir stated that the principles established in Knight relating to the
applicability of a duty of fairness in the context of public employment merit reconsideration.
 While the majority opinion in Knight properly recognized the important place of a general
duty of fairness in administrative law, it incorrectly analysed the effects of a contract of
employment on such a duty.

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 The majority in Knight proceeded on the premise that a duty of fairness based on public law
applied unless expressly excluded by the employment contract or the statute without
consideration of the terms of the contract with regard to fairness issues.
 It also upheld the distinction between office holders and contractual employees for procedural
fairness purposes
 What matters is the nature of the employment relationship between the public employee and
the public employer. Where a public employee is employed under a contract of employment,
regardless of his or her status as a public office holder, the applicable law governing his or
her dismissal is the law of contract, not general principles arising out of public law
 What Knight stands for is the principle that there is always recourse available where the
employee is an office holder and the applicable law leaves him or her without any protection
whatsoever when dismissed
Mossop (1993)
 Questions of Fact, Discretion Or Policy: Where the question is one of fact, discretion or
policy, deference will usually apply automatically (see also Dr. Q and Suresh).
 Mixed Questions of Law and Fact: We believe that the same standard must apply to the
review of questions where the legal and factual issues are intertwined with and cannot be
readily separated.
Southam (1997)
 Reasonableness Simpliciter: A third standard of review was introduced into administrative
law. The legislative context of that case, which provided a statutory right of appeal from the
decision of a specialized tribunal, suggested that none of the existing standards was entirely
satisfactory. As a result, the reasonableness simpliciter standard was introduced. It asks
whether the tribunal’s decision was reasonable. If so, the decision should stand; if not, it must
fall.
 In Southam, Iacobucci J described an unreasonable decision as one that “is not supported by
any reasons that can stand up to a somewhat probing examination” and explained that the
difference between patent unreasonableness and reasonableness simpliciter is the
“immediacy” or “obviousness” of the defect in the tribunal’s decision.
 The defect will appear on the fact of a patently unreasonable decision, but where the decision
is merely unreasonable, it will take a searching review to find that defect.
CUPE (2003)
 Patent Unreasonableness: The definitions of the patent unreasonableness standard that arise
from the case law tend to focus on the magnitude of the defect and on the immediacy of the
defect
 These two hallmarks of review under the patent unreasonableness standard have been used
consistently in the jurisprudence to distinguish it from review under the standard of
reasonableness simpliciter
 Deference in the Application of a General Common Law or Civil Law Rule: Deference may
also be warranted where an administrative tribunal has developed particular expertise in the
application of a general common law or civil law rule in relation to a specific statutory
context. Adjudication in labour law remains a good example of the relevance of this approach
 A consideration of the following factors will lead to the conclusion that the decision maker
should be given deference and a reasonableness test applied:
 A privative clause: this is a statutory direction from Parliament or a legislature indicating
the need fro deference.

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  A discrete and special administrative regime in which the decision maker has special
expertise (labour relations for instance)
 The Nature of the Question of Law. A question of law that is of “central importance to
the legal system…and outside the…specialized area of expertise” of the administrative
decision maker will always attract a correctness standard. On the other hand, a question
of law that does not arise to this level may be compatible with a reasonableness standard
where the two above factors so indicate.
 Correctness: Courts must also continue to substitute their own view of the correct answer
where the question at issue is one of general law “that is both of central importance to the
legal system as a whole and outside the adjudicator’s specialized area of expertise.”
 Because of their impact on the administration of justice as a whole, such questions require
uniform and consistent answers. Such was the case in Toronto (City) v. CUPE which dealt
with complex common law rules and conflicting jurisprudence on the doctrines of res
judicata and abuse of process, issues that are at the heart of the administration of justice
Ryan (2003)
 Distinguishing b/t Reasonableness and Patent Unreasonableness: It became clear that after
Southam, lower courts were struggling with the conceptual distinction between patent
unreasonableness and reasonableness simpliciter
 Iacobucci in Ryan attempted to bring some clarity to the issue. He explained the different
operations of the two deferential standards as follows:
 A patently unreasonable defect, once identified, can be explained simply and easily, leaving
no real possibility of doubting that the decision is defective. A patently unreasonable decision
has been described as “clearly irrational” or “evidently not in accordance with reason.”…A
decision that is patently unreasonable is so flawed that no amount of curial deference can
justify letting it stand.
 A decision may be unreasonable without being patently unreasonable when the defect in the
decision is less obvious and might only be discovered after “significant searching or testing.”
Explaining the defect may require a detailed exposition to show that there are no lines of
reasoning supporting the decision which could reasonably lead that tribunal to reach the
decision it did.
Mullan
 Distinguishing b/t Reasonableness and Patent Unreasonableness: To maintain a position that
it is only the “clearly irrational” that will cross the threshold of patent unreasonableness while
irrationality simpliciter will not is to make a nonsense of the law. Attaching the adjective
“clearly” to irrational is surely a tautology. Like “uniqueness,” irrationality either exists or it
does not. There cannot be shade of irrationality.

Independence and Freedom From Bias

Brosseau v Alberta (securities commission) [1989] SCC
Structure of act whereby commissioners could be involved in both investigation and
adjudication doesn’t in itself lead to RAB, so long as Chair not acting outside stat authority,
and no evidence Chair’s acting beyond stat duty
Facts: B alleged that Chair of committee should be disqualified from sitting in, and investigating
in adjudicative way, b/c, at request of sr. civil servant, chair had instructed commission staff to
review their files and info in possession of police re company that B solicitor of. Chair got copy
of report. Notice of hearing issued against B alleging false/misleading statements w/in his files. B

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alleges reasonable apprehension of bias b/c Chair was playing both an investigative and
adjudicative role (principle of nemo judex in causa debet esse/no one ought to be a judge in his
own cause). B alleges that if there’s an investigation, it should be ordered by Commission under
s. 28 of Securities Act (says Commissions has full scale investigatory powers akin to Court of
QB), rather than directed by Chair, who B alleges doesn’t have statutory authorization.
Issue: Was there RAB b/c Chair both investigator and adjudicator, and should Commission be
disqualified from hearing case on those grounds?
Held: L’H-D dismisses claim. Structure of act whereby commissioners could be involved in both
investigation and adjudication doesn’t in itself lead to RAB, so long as Chair not acting outside
stat authority, and no evidence Chair’s acting beyond stat duty.
Reasoning:
 The exception to CL rule against bias is where overlap of functions which occurs has been
authorized by statute, assuming that constitutionality of statute is not at issue.
 In order to disqualify Commission from hearing matter in this case, some act would have to
have been committed by commission that goes beyond its stat. duties.
 Admin tribunal created for variety of reasons, to respond by variety of means … the legis
will determine its scheme. It might allow for overlap of functions, and to the extent that it
allowably overlaps, won’t be subject to RAB per se (when legis chooses, like in HR, has
separate body to investigate than to adjudicate).

Factors re statutory authority:

Court directed parties to answer: 1) pursuant to what stat authority was investigation directed;
2) was investigation directed solely at initiative of Chair; 3) was it confined to documents on file
w/the commission (was it internal or broader in scope)
 statutory authorization;
o Under the statute, the investigative role of Chair wasn’t explicit, but implicit
authorization w/in scheme of act.
 There’s no evidence that Chair directed investigation—maybe initiated it, but that’s fine
b/c statute authorizes his involvement at a lot of stages
 Unreasonable to say that securities commission requires express stat authority to review
documents it has on file or keep self informed about RCMP investigation
o Commission must have implied authority to review the documents it has on file
to check for irregularities b/f engaging s. 28 (Not every concern will trigger a full
investigation and trial under s. 28)
o Chair, as CEO, has to have authority to authorize staff to look into something and
Additional Factors:
 In specialised body, is it more likely that same decision makers will have repeated dealings
w/a given party on a number of occasions for a variety of reasons
o only one AB securities commission, so no surprise that they deal w/ failure of
B’s company (Dial) over a period of years
 Securities commissions by nature take on a lot of different functions, repeatedly w/same
parties, and in admin and adjudicative capacities
 Certain activities that might otherwise be considered biased form integral part of its
operation
 Commissions role is to regulate market and protect public; its role is akin to a professional
disciplinary body
VH: reasoning Emphasizes role of people in commission, and differences b/n admin tribunal like
this and the court

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  If claim of apprehension of bias based on CL, ask if statute creates an exception to
this (except maybe where statute itself so offensive that won’t be allowed to stand
before court)

Régie des permis d’alcool [1996] 3 SCR 919 (Que)

Independence & Freedom from Bias
 Elaboration of judicial independence including administrative decision makers
 Not an ideal we are looking for in administrative context; not as high an ideal as in criminal
context
Facts:
 Members appointed for two, three or five years; max. term is five years
 Members may be dismissed for cause
Issue:
 Challenge to independence of an adjudicative tribunal
SCC Analysis
(i) Security of Tenure
 Directors’ conditions of employment meet the minimum requirement of independence
 Do not require that all administrative adjudicators, like judges of courts of law, hold office
for life; fixed term appointments are acceptable
 Flexible enough to accommodate fixed term appointments including when members can be
dismissed for cause but if members could be dismissed for pleasure that would raise concern
independence
 Ocean Port; held that an “at pleasure” dismissal for an administrative adjudicator, if clearly
authorized in a statute, would meet requirement for independence
 How do we square this with Regie?
 We are dealing with a statute in Regie; under common law an “at pleasure” dismissal will not
satisfy common law requirements for independence UNLESS there is clear statutory
authority
 Regie members can challenge a dismissal; directors can apply to the courts to contest an
unlawful dismissal
 Court holds there is sufficient security of tenure
Holding:
 SCC: fixed term appointments are acceptable for adjudicative tribunals

 Removal must not be ‘at pleasure’ of the executive (unless authorized by statute)
here, members may be dismissed only for cause and can challenge the dismissal in the courts –
satisfies requirements of independence

Paine v. U of Toronto (1980) 115 DLR (3d) 461 (Ont Div Ct); rev’d (1981) 131 DLR
(3d) (325) (CA)
Attitudinal bias
Facts:
Denial of assistant professor’s application for tenure
 Assistant professor at U. of T; applies for tenure; tenure committee established with six
members, all tenured professors; to get tenure you had to have 5 in support
 Process leading up to tenure included request that all tenured professors give reports on
candidates; one very negative report given and this professor was then appointed to
committee;

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 Committee meets; denies tenures on 5-0 vote
Divisional Court Analysis:
See reasonable apprehension of bias
 Overwhelming consideration which points to procedural unfairness was appointing a
professor to the Tenure Committee who had previously expressed a negative assessment of
Paine as an instructor
 Bias or apprehended bias has long been recognized by statute and by common law as a valid
ground upon which to challenge a “potential juryman”
 Div. Ct. says that a trial is no less a trial by one’s peers if those among them who are
obviously biased have been previously eliminated
Held:
 Divisional Court finds bias on basis that a committee member, before his appointment,
had given a very negative review of the candidate

Court of Appeal Analysis:

Weatherston J.A.
 Tenure committee does not sit as a tribunal acting only on the evidence placed before it;
members bring their own knowledge of candidates as well as assessments and references
provided to them
 A recommendation for tenure needs 5 of 7 votes; not one member of committee approved
Paine’s tenure
 One single member could dominate proceedings; (unlikely that tenured professors would be
dominated by another tenured professor)
 Right of appeal to appeals committee allowing for appeal based on improper motive or bias
(two appeal committees heard appeal and both rejected Paine’s appeal)
MacKinnon ACJO.
 Not a judicial decision but adjudicative decision so more flexibility; Courts should leave
domestic disputes to be settled by methods agreed on by the parties
 There was no complaint about the conduct or procedures of the two university appeal
committees but only the results
C.A.
 Court of Appeal allows appeal in deference to the university’s process, citing the
unlikelihood that committee was swayed by a single member

Alex Couture Inc v. Canada AG (1991) QBCA

—tests for impartiality and independence
Facts: challenge to appointment structure and independence of competition tribunal, specifically
law members sitting on competition tribunal [slide]
Issue: What’s the test/criterion for assessing independence and impartiality of judge or tribunal
for purposes of 11d of Charter?
 LeDain, Valente: Independence as Constitutional guarantee is “referring to the status
or relationship pf judicial independence as well as to state of mind of the tribunal in
the actual exercise of its function”
 Granpre, National Energy Board: Reasonable apprehension of bias, held by
reasonable person
Le Dain distinguishes b/n independence and impartiality— these are separate and distinct
values/requirements, although they’re related)
Impartiality: state of mind/attitude of tribunal in relation to issues and the party in a particular
case, i.e. absence of bias

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Independence in 11 d: not just state of mind/attitude in exercise of its judicial functions, but
status/relationship to others, particularly to exec branch of govt; more to judicial independence as
traditional constitutional value, and w/in English tradition, it’s a value in CL— an institutional
separation of powers b/n judiciary and exec (or others), to protect judiciary’s realm of decision
making.
 Both institutional impartiality and independence must form the constitutional
guarantee (Lamer, Lippe)
3 Minimal Elements Essential To JI:
1. Security of tenure—one appointed for set term, and not case-by-case basis
 Lay members appointed for terms of up to years, could be dismissed for cause (e.g.
misconduct/infirmity) whereas judiciary federal court judges, who could be
dismissed only for bad behaviour, following vote in House of Commons and Senate
 CA held that this satisfied; lay members had set term; could be dismissed only
w/cause; and had a right to dismissal w/hearing (recall Dunsmuir, the exception for
PO holders)
2. Financial security—one’s income protected/guaranteed, regardless of outcome of case
 Lay members argued that their salaries and benefits subject to control and arbitrary
interference by exec, b/c no guarantee in act that they once set, won’t be decreased.
They were fixed by cabinet, not parliament, and each member gets same salary
 CA satisfied that danger of threat to independence addressed by set terms that laid
out their salaries and packaging, and reasonable well-informed person wouldn’t think
that they didn’t enjoy financial security for their term
3. Institutional independence of tribunal wrt. Admin decisions bearing directly on the exercise of
its judicial functions
 They might hold offices outside their role as member of commission, and could
return to that role (e.g. economist) (VH: This is best argument).
 This is linked to the impartiality argument, going to state of mind of adjudicated
 A judge, once appointed, barred from doing other work for remuneration
 When someone on tribunal has other loyalties, party being tried might not know of
conflict, but may be disadvantaged
 Lamer (Lippe) re occupations where there might be reasonable apprehension of bias,
need to ask:
1. Having regard for factors including but not limited to nature of occupation
and the parties who appear b/f this type of judge, will there be reasonable
apprehension of bias in a substantial number of cases
2. If not, allegations of bias can’t be brought on institutional level, but must
be dealt w/CBC
 Here, one member also a member of the investigative counter-part of tribunal. Maybe
not requisite independence.

 CA: opportunities to challenge particular member in particular case was sufficient to

satisfy requirement of institutional independence. These cases might happen where
consultant as member of tribunal called upon to decide disputes which may involve
persosn whose interests opposed to his clients, but improbable; not common enough
to raise concern (probably realistic that individual members engaged in community,
CA relying on integrity of individuals).
VH: This is best argument; most important problem is lay members conflict of interest w/other
business enterprises;
VH takes a more hard-line view, and disagrees w/QB CA that this isn’t a problem

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Bell Canada v CTEA (Canadian telephone employees association) [2003] SCC 36
Facts:
Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been
convened to hear complaints filed against Bell by female employees (alleging that they got paid
less than males in violation of s. 11 of HRA).  Bell alleged that the Tribunal’s independence and
impartiality were compromised by two powers: first, the power of the Canadian Human Rights
Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases”,
and second, the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing
inquiries.
 
The Tribunal rejected Bell’s position and directed that the hearings should proceed.  The Federal
Court, Trial Division, allowed Bell’s application for judicial review, holding that even the
narrowed guideline power of the Commission unduly fettered the Tribunal, and that the
Chairperson’s discretionary power to extend appointments did not leave Tribunal members with a
sufficient guarantee of tenure. 
Before the FCA, Bell argued that the Tribunal violated not only the requirements of procedural
fairness, but also Bell’s right to a fair hearing under s. 2(e) of the Canadian Bill of Rights. The
FCA reversed the FC, rejected Bell’s view that the Tribunal violated the requirements of
procedural fairness, and held it unnecessary to consider the CBR arguments.
Issues:
 Does the Canadian Human Rights Tribunal (the “Tribunal”) lack independence and
impartiality because of the power of the Canadian Human Rights Commission (the
“Commission”) to issue guidelines binding on the Tribunal concerning “a class of
cases”, and the power of the Tribunal Chairperson to extend Tribunal members’
terms in ongoing inquiries—are these provision of the Human Rights Act consistent
w/s. 2e of the CBR? 
 (Can the HRT decide this Q on its merits, given relationship of the HRT with the
HRC?)
 What’s the content of the CL requirement or procedural fairness?
Held: Appeal from FCA dismissed. Orders the complaints to proceed before the tribunal (they’d
been staved off for 13+ years) Bell’s arguments are w/out merit. Neither of the 2 powers
challenged by B compromises the procedural fairness of the Tribunal, or contravene any
applicable quasi-constitutional or constitutional principle.  An informed person, viewing the
matter realistically and practically and having thought the matter through, won’t apprehend a
“real likelihood of bias”

Analysis:
[15] Bell argues that the power of the Commission to issue guidelines binding on the Tribunal,
under  ss. 27(2) and 27(3), compromises the Tribunal’s independence because it places limits
upon how the Tribunal can interpret the Act, and undermines the Tribunal’s impartiality because
the Commission is itself a party before the Tribunal.  Similarly, Bell argues that the discretionary
power of the Tribunal Chairperson to extend members’ terms for ongoing inquiries, under ss. 
48.2(1) and 48.2(2), compromises the Tribunal’s independence because it threatens their security
of tenure, and undermines the Tribunal’s impartiality because the Chairperson may pressure such
members to reach outcomes that he or she favours.

(Read: The HRC has power to issue binding guidelines, which becomes the laws that govern
Tribunal. The HRC has quasi-legislative authority over HRT, and so latter not independent.

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Members of tribunal, if sitting in an ongoing case, the chair could decide to extend their term on
the commission. This means that members are beholden to the chair, b/c they’ll want chair to
extend term)

 Court frames the content of s. 2e of CBR under CL, whereas Bell had framed it under CBR s.
2e, and a “constitutional principle of adjudicative independence.”

What’s nature of legal test for independence and impartiality?

 Impartiality and legal independence, both aspects of CL principle/rule against bias, and seek
to uphold public confidence in fairness of admin agencies and decision-making procedures.
 [17]The legal tests for independence and impartiality appeal to the perceptions of the
reasonable, well-informed member of the public.  Both tests require us to ask: what would an
informed person, viewing the matter realistically and practically, and having thought the
matter through, conclude? 
 Bell made categorical error: independence requirement pertains to structure of tribunals, and
to the relationship between their members and others, including members of other branches
of government, such as the executive.  The test does not have to do with independence of
thought—the latter relates to impartiality
 [25]Would a well-informed person, viewing the matter realistically and practically, have a
reasonable apprehension of bias in a substantial number of cases? As Lamer C.J. stated in
Lippé, allegations of institutional bias can be brought only where the impugned factor will
give a fully informed person a reasonable apprehension of bias in a substantial number of
cases
Nature of Tribunal and relationship to PF and independence requirement
 There’s a spectrum of procedural fairness, and the closer to an adjudicative function, the
greater the need for procedural protections
 The HRT is mainly adjudicative—has court like hearings, and it’s t/f appropriate that it has
high degree of independence from exec; the legislature has accounted for this through fixed
terms and fixed remuneration
2 Rationales over lapping functions of single admin agency doesn’t, on its own, give rise to
RAB/ impartiality:
1. Legislative supremacy argument; parliament may choose to give overlapping functions (VH:
rationale that parliament/legislature can decide to overrule CL requirement)
[35] While it may have been more felicitous for Parliament to have called the Commission’s
power a power to make “regulations” rather than a power to make “guidelines”, the legislative
intent is clear.  A functional and purposive approach to the nature of these guidelines reveals that
they are a form of law, akin to regulations. 
[36] The objection that the guideline power unduly fetters the Tribunal overlooks the fact that
guidelines are a form of law.  It also mistakenly conflates impartiality with complete freedom to
decide a case in any manner that one wishes.   Being fettered by law does not render a tribunal
partial, because impartiality does not consist in the absence of all constraints or influences … not
all predispositions amount to “bias”.  Predispositions that simply reflect applicable law do not
undermine impartiality.  On the contrary, they help to preserve it.  Hence, the fact that the
Tribunal must apply all relevant law, including guidelines formulated by the Commission, does
not on its own raise a reasonable apprehension of bias.
[39] The public does not, in other contexts, assume that a decision-maker will favour submissions
by government representatives simply because the decision-maker must apply laws that the
government has made.  The Tribunal seems no more likely to be biased in favour of the

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Commission because the Commission provides the Tribunal’s guidelines than it is likely to be
biased in favour of Bell because Bell provides the Tribunal’s phone service
[41] [I]t may be that the overlapping of functions in the Commission is the legislature’s way of
ensuring that both the Commission and the Tribunal are able to perform their intended roles
(The commission has expertise and awareness of needs of public and knowledge of federal and
provincial anti-discrimination laws. The legislature wanted it this way for a reason.)

2. Power is not unfettered and statute and admin law have checks to ensure that power not
abused.
 Tribunal has power to review the power of the commission to issue the guideline—this
creates check on possible abuse of this power (rationale re accountability)
[47] The Commission, like other bodies to whom the power to make subordinate legislation has
been delegated, cannot exceed the power that has been given to it and is subject to strict judicial
review …  The Tribunal can, and indeed must, refuse to apply guidelines that it finds to be ultra
vires the Commission as contrary to the Commission’s enabling legislation, the Act, the
Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights …

 Some tribunals may have policy function, investigatory function, adjudicative function, and
legislative (i.e. power to issue binding laws); this won’t create reasonable apprehension of
bias, b/c:
o Their ability to issue guideline this was limited to a class of cases/a general function—not
responding/reacting to specific case (won’t make ad hoc legislation)
[47] … Moreover, the Commission’s guidelines, like all subordinate legislation, are subject to the
presumption against retroactivity.  Since the Act does not contain explicit language indicating an
intent to dispense with this presumption, no guideline can apply retroactively. This is a significant
bar to attempting to influence a case that is currently being prosecuted before the Tribunal by
promulgating a new guideline.  Finally, any party before the Tribunal could challenge a guideline
on the basis that it was issued by the Commission in bad faith or for an improper purpose; and no
guideline can purport to override the requirements of procedural fairness that govern the
Tribunal.

VH: The first is the strongest argument, and should have been enough Maybe the court went
beyond legislative and stat authorization b/c Bell had framed it as a constitutional Q—even
though court didn’t pick up the const. argument.
RE Lack of independence b/c of Power of tribunal to extend appointments (V: this is a paper thin
argument)
 Need for flexibility to allow tribunal members to continue beyond expiry of tenure, if needed
for ongoing hearing
 Regardless, if the discretionary power of the Chief Justice and Judicial Council of the
provincial courts to extend the tenure of judges does not compromise their independence in a
manner that contravenes the requirements of judicial independence (as ruled in Valente), then
neither does the discretionary power of the Tribunal Chairperson compromise the
independence of Tribunal members in a manner that contravenes common law procedural
fairness
 Tribunal chair best to know the need and is “somewhat distant” from commission (VH:
putting it to chair of tribunal w/set tenure better than giving the choice to the commission--
Who would you give the authority to make this call?)
RE impartiality b/c of above

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 Bell’s argument: members might feel pressure to adopt the views of the Chairperson in order
to remain on a panel beyond the expiry of their appointment, t/f a reasonable person might
doubt whether members were guided only by legitimate considerations in the disposition of
their final case [54]
 This is an unreasonable concern, given that the appointment is extended only until hearing
over, and no other benefit is conferred

VH: Good example of the flexibility of CL principles of independence

Standing
In the classic situation the person who is impacted by state action is the person who
brindgs the challenge (the refugee claimant, the person who is fired, the person who is
detained, the person denied a benefit etc…)

Two common situation that do not follow the classic case:

 Decision that focus broad section of society in and adverse way (Inuit, Bel
Canada, Via Rail)
 Decision affects a range of interest in a different way

Standing
• traditionally, the common law limited standing in the judicial review context to
individuals whose private rights (ie contract, tort, property) were directly affected by
a government action or decision
• no standing where public interest alone was at stake (eg re: legality of administrative
action) – discretion of Attorney General whether to seek judicial review
• expansion of participatory rights in public law begins in US; expands in Canada,
especially post-Charter

• why allow broader participatory rights in judicial review? why limit such rights?

 Historically, traditionally you only had standing for private interests

 In terms of gov’t and public interest, the only way judicial review could happen
was if the AG brought an application
 See Mullan for expansion of participatory rights in public law;
 Expansion of what a private or public law right is extended; in Cardinal “rights,
privilege, interests”
 Public interest standing;
 Other forms: amicus curiae and intervener status

Reasons Why for Broader Participatory Rights in Administrative Law and

Judicial Review OR Reasons Against

Limiting:
 People can vote gov’t out if they don’t like policy/legislation

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 Judiciary should not enter into the legislative/policy realm
 Adjudicative review is subject to a certain selectivity; the wealthy can challenge decisions and
already have influence
 Judicial resources; strain on courts
 The concept of the busybody; people/groups going around and hijacking the system and/or
causes
Expanding:
 Public interest standing can serve as a check against gov’t power and its use

However, following Charter the SCC expanded standing

If person does not have a sufficiently direct interest in case but court can, in its discretion,
provide standing based on 3 part test:

Three Part Standing Test;

1. Serious issue (justiciable)
2. Genuine Interest
3. No Reasonable & Effective Alternative to Bring Issue Before Court

Finlay [1986] 2 SCR 607 (Can)

Public Interest Standing
Facts:
• F challenged the legality of federal transfer payments to Manitoba under the Canada
Assistance Plan
• F alleged that compliance by Manitoba with its CAP obligations would have produced a
higher level of social assistance for F
 Lived in Manitoba; received public assistance
 Federal transfer payments to Manitoba under Canada Assistance Plan
 Finlay argued Manitoba was violating the conditions under CAP and he was receiving less
than if Manitoba complied; Federal gov’t must force Manitoba to comply
 This is a dispute between Federal Gov’t and Manitoba; who has a direct interest in dispute?
 Finlay argued: Anyone who is a recipient of benefits and forcing federal gov’t to make
Manitoba comply with conditions
Judicial History
• Manitoba CA granted standing to F to seek declaratory relief
Issues:
1. Does Finlay have a sufficient personal interest in the legality of the federal cost-sharing
program to obtain standing?
2. If not, does the Court have the discretion to grant him public interest standing based on
the circumstances of this case?
3. Should the Court grant him standing?
SCC Analysis
#1.Does Finlay have a direct, personal, interest?
 Finlay has a direct interest in making Manitoba meet its CAP obligations BUT Finlay was
challenging federal gov’t obligations to force Manitoba to comply
• SCC (Le Dain J): does F have a sufficient personal interest to be granted standing?
– F alleged that Canada’s failure to require Manitoba to meet its CAP obligations reduced
F’s monthly payment
– F has ‘a direct, personal interest in the alleged provincial non-compliance’, but ‘I am on
balance of the view that the relationship between the prejudice allegedly caused to the

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 respondent by the provincial non-compliance with the conditions and undertakings
imposed by the Plan and the alleged illegality of the federal payments is too indirect,
remote or speculative to be a sufficient causative relationship for standing under the
general rule.’(text p 1200)

 Should the Court be able to grant public interest standing in terms of administrative
decisions/judicial review?
 Historically, the AG had exclusive authority; by expanding public interest standing the court
has wrestled this power away from AG and given it to public
#2. Does the Court have the discretion to recognize public interest standing re: challenge to
the legality of the federal transfer program?
– yes: ‘the policy considerations underlying judicial attitudes to public interest standing’
and ‘values… assigned to the public interest in the maintenance of respect for the limits
of administrative authority’ call for public interest standing as in constitutional cases
– AG should not have exclusive authority to grant standing in the public interest

Three Requirements:
• three requirements for public interest standing:
– must be a serious issue raised – here, yes
– must be genuine interest on the part of the citizen – here, yes
– must be no other reasonable and effective manner to bring the issue before a court
– ‘Here is it quite clear from the nature of the legislation in issue that there could
be no one with a more direct interest than the plaintiff who would be likely to
challenge the legislation.’ (text p 1202)
1. Serious issue: yes; compliance with CAP
2. Has genuine interest in compliance with CAP
3. Are there other private litigants with a direct private interest to bring claim? (p. 1202)
Court says no one (meaning a citizen not a province) who can bring claim

Concerns Expanding Public Interest Standing

1. Concern about the proper role of the courts and their constitutional relationship to
the other branches of government = this concern is addressed by the requirement
of “justiciability” or the courts should not decline to determine an issue on the
ground that b/c of policy or implications it is better left to review and
determination by the legislative or executive branches of gov’t

2. Concern about judicial resources and the need to screen out the mere busybody =
addressed by the requirement that there be a serious issue raised and that the
citizen have a genuine interest in the issue

3. Concern that in the determination of issues the courts should have the benefit of
the contending points of view of those most directly affected by them = addressed
by the requirement that there be no other reasonable and effective manner in
which the issue may be brought before a court
 Not ideal to have someone who lacks a direct private interest bring case but there is no other
way; we must rely on public interest standing

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VH: Is there a judicial sphere that courts should stay within and not get into spheres beyond their
realm? Courts address this issue in first part of test, “justiciability”; must be a question of law

Canadian Council of Churches v. Canada [1992] 1 SCR 236 (Can)

Facts:
Council is a federal corp that represents interest of broad group of member churches, and co-
ordinates church work aimed at protection and resettlement of refugees. In 1988, parliament
amended IA that changed procedure for determination of Convention Refugee. Council expressed
concern b/f Bill passed, and brought action right after it came into force, seeking declaration that
amended provisions violated Charter and CBR. AG brought motion to dismiss claim on basis
that Council didn’t have standing and hadn’t shown a cause of action.
FC granted public interest standing and dismissed AG’s application (‘no reasonable, effective or
practical manner for the class of persons more directly affected by the legislation, that is refugees,
to bring before the court the constitutional issues raised….’); FCA denied standing to challenge,
except for a number of provisions re short time limits for detention/removal (removal w/in 72
hours, need to find counsel w/in 24 hours) that the individual claimants would likely be unable to
challenge.
Issue:
Did the FCA err in holding that the CCoC should be denied standing to challenge most of the
provisions? (Is there a more appropriate litigant to bring the action than the Council?)
Held: The Council does not have standing, because affected individual litigants can and have
challenged these provisions. “Each case presented a clear, concrete, factual background upon
which the decision of the court could be based.” (1214)
Analysis: (see slide)
‘The basic purpose of granting status is to prevent the immunization of legislation or public acts
from any challenge. The granting of public interest standing is not required when, on a balance of
probabilities, it can be shown that the measure will be subject to attack by a private litigant.’ (text
p 1212)
Here there is no such immunization as plaintiff refugee claimants are challenging the legislation.
Thus, the very rationale for the public interest litigation disappears. The council must, therefore,
be denied standing (1214).

Application of Finlay test:

1. Is there a serious issue raised as to the invalidity of the legislation in question?
Cory J laments submissions/Statement of Claim by Council, as too hypothetical, and more
akin to a submission to a parliamentary committee, but says that it raises some serious issues
as to the validity of the legislation.
2. Does council has a genuine interest?
Yes, Council has genuine interest—it has a solid reputation and demonstrated real and
continuing interest in the problems of refugees and immigrants.
3. Are there alternatives for bringing forward this claim?
Claim fails here; Cory J says the legislation directly affects all refugees, each one of could
challenge its constitutionality and there are many refugee claims brought before courts; the
disadvantages of refugees as a group does not preclude effective access to the courts – so,
Council not entitled to public interest standing

Mullan:

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Isn’t more sensible for court to review provisions of Act and decide they are
lawful/Constitutional? Why wait for refugees to be affected and bring cases based on various
provisions; why have cases that challenge each provision independently?
VH:
It might be more burdensome on court to try to challenge the statute at large, in absence of
specific facts/circumstances; the decision to invalidate provisions could have severe
consequences, that are not accounted for absent such facts.

Vriend v. Canada [1998] 1 SCR 493 (Alta)

Public Interest Standing
Facts:
• V lost position as teacher at private religious school when he admitted he was gay
• Alberta HR Commission rejected his complaint of discrimination on basis that Alberta HR
legislation (Alberta Individual Rights Protection Act) did not prohibit discrimination on
grounds of sexual orientation

 Teacher at private religious school; came out and declared he was gay
 Was summarily fired and brought complaint to Alberta HR Commission; denied claim b/c
relevant legislation did not have a provision against discriminating against gays and lesbians
Issue:
 Vriend and gay organizations brought claim under s. 15
 Vriend brought claim not just under employment measures of Act but challenged all
provisions of Act because of the omission of sexual orientation
• V and three organizations challenged the omission of sexual orientation as violating
s 15 of the Charter

• Challenge, not only to employment-related provisions, but all provisions of the Act
 Remember in Canadian Council of Churches the SCC did not want a case to challenge all
provisions of Act but wanted individuals to bring cases challenging different provisions
SCC Analysis:
Cory J uses 3 Step Test for Public Interest Standing per Finlay
1. Was there a serious issue raised? Yes
– serious issue raised for all the provisions; V and the organizations have a genuine
interest in all the provisions
2. Was there a genuine interest on behalf of applicants for standing?
– Vriend had an interest in employment but the other organizations as well had direct interest in
prohibiting discrimination on the basis of sexual orientation
3. Was there another way, both reasonable and effective to bring this issue before the court?
– Cory J said it would be wasteful of resources, costly and difficult to individuals to challenge
each section of Act
– ‘the only other way the issue could be brought before the Court with respect to the other
sections would be to wait until someone is discriminated against on the ground of sexual
orientation in housing, goods and services, etc. and challenge the validity of the provision in
each appropriate case. This would not only be wasteful of judicial resources, but also unfair

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 in that it would impose burdens of delay, cost and personal vulnerability to discrimination for
the individuals involved….’ (text p 1218)

– ‘As well it is important to recall that all of the provisions are very similar and do not depend
on any particular factual context in order to resolve their constitutional status.’ (p 1218)

Held: Concludes that Vriend and organizations should have public interest standing
Comments:
VH: But compare this to Canadian Council; VH says the Immigration Act is not easily
encapsulated in one question about legality as opposed to the Alberta Act where sexual
orientation is narrower or more easily encapsulated; more variability, more factors to consider in
challenges by refugees under Immigration Act –
Is the test than the burden put on applicants to bring cases and how easy or difficult that might
be? VH says courts have to be careful about declaring an entire act or numerous provisions
unconstitutional (Immigration Act) whereas in the Alberta Act the issue of sexual orientation is
easy to apply to all provisions in this Act; sexual orientation may be more a discrete issue than
what could be numerous issues arising under various challenges to Immigration Act

Harris v Canada [2000] FCA

Facts: tax payer who sought declaration that M of National Revenue acted illegally in privately
giving another taxpayer a favourable advance ruling, and alleged that M had ulterior motives. M
sought to have proceedings struck out for lack of cause of action or standing. Prothonotary
granted granted motion to strike, but motion reversed by FC TD, and M appealed to FCA.
Held: Generally, individual tax payer doesn’t have sufficient interest in determination of how
another taxpayer’s ruling has been dealt with by govt. However, in this case, the concerns at stake
—ulterior motive (i.e. bad faith) were so significant as to grant H standing. The court relied on
obiter of HoL decision to say that if revenue Canada concludes compromise agreements or covert
deals or gives preferential treatment to certain tax payers w/out stat authority, than PI standing
can be granted by another tax payer to challenge the treatment (like Roncarelli, concerns about
arbitrariness and bad faith).

Apply the Finlay test:

1. Is there a serious and justiciable issue?
Yes. Whether M acted illegally/improperly or for ulterior motive, namely favouratism and
preferential treatment by way of covert deals.
2. Does H have genuine interest?
Yes. B/c he’s a tax-payer, and member of fair tax organization (VH: we could all satisfy this
branch of test—we’re all tax payers, this is wrapped up in seriousness of issue)
3. Is there another reasonable/effective manner to get issue before a court?
No. H had asked AG to bring case, but he didn’t, and those who got the tax break weren’t going
to do it.
VH: In the old days, would have relied on AG’s discretion as to whether it was serious enough to
challenge
Courts motivated by wanting to ensure accountability w/in govt when it’s otherwise not going to
happen.
**Emphasis on how serious the concern is-- we want to keep arbitrariness in check.

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Mullan notes that Sexton JA says giving H standing b/c M acted for ulterior motive, but maybe
would not have had H alleged that minister erred in interpreting act (error of law in granting
standing may not be as compelling as bad faith) [not brought up in class]

VH: Do we want to give the court this broad power under accountability?
We’re not limited to integrity of govt, or courts. Need to ask whether courts well suited to make
polycentric decisions. When courts intervene, maybe causing as much harm as good. The courts
have guarantees of independence that know one else has, but we should keep in mind that there
are other methods of accountability to keep govt action in check, including:
 Ombudsman
 Elections
 Public accountability/media
 Auditors
 Parliamentary committees
 Public inquiries
 If allegations of corruption and fraud, criminal investigation, internal
investigation/disciplinary bodies
 Employment law
Walkerton Inquiry
Standing
Who wanted standing?
 Municipality; public utilities commission, Stan Koebel; Frank Koebel; mayor,
organizations that represented “concerned” local citizens; a group of injured victims;
groups with more of provincial interest; labour groups such as CUPE and OPSEU
that represent prov gov’t employees; environmental groups such as Sierra Club;
farmers’ organizations; provincial gov’t; public health unit; provincial organization
representing health units;
What should the Commissioner do?
Everyone with a “substantial and direct interest” is to be given standing?
Commissioner decided:
1. Full Standing
a. Right to disclosure; right to advance witness statements; right to counsel;
right to cross examine every party; make opening and closing statements
b. Must have direct and substantial interest OR you otherwise had some
useful perspective to bring
2. Partial Standing
a. Limited to particular areas of evidence; you can attend only on days where
your particular interests are affected; very difficult to anticipate evidence
in advance and inform parties when they could participate
3. Part 2 Standing
a. No standing in hearings at adjudicative stage but you can participate in
round table discussions on policy
4. Group Different Organizations Into A Single Status And Make Them Agree On
One Counsel And Agree On A Single Interest
a. Nature of the interest; genuine interest; did they have special expertise and
could they be grouped
b. Environmental groups were brought together under this branch

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About 13 parties were granted full standing
VH: Who has interests? How do we define who has private and public interests?

Remedies

Administrative Remedies
 Administrative agencies of all kinds invariably have internal mechanisms for dealing with
citizens’ grievances; it may be simply a matter of asking the person who made the decision to
look at it again or of speaking with a more senior person in the agency
 Administrative appeal tribunals are generally able to reconsider the whole case after hearing
from the parties and to substitute the decision that in their view the original body should have
made
 It is much rarer to find an administrative appeal from an independent agency that makes the
first-level decision in a dispute; thus, there is generally no administrative appeal from
provincial human rights tribunals, labour relations boards, and labour arbitrators
 Agencies that regulate industries such as communications and utilities are often subject only
to a political appeal to the Cabinet

Three Main Admin Law Remedies

 Classical immunity of Crown from private law; sovereign delegates to the courts the
power to resolve disputes; the sovereign itself is exempt from courts but there needs
to be mechanism to check what the courts are doing in the name of the sovereign

Certiorari: In a certiorari application the record is made available to reviewing body and
body can quash (review the record and quash); a writ issued by an appellate court, at its
discretion, directing a lower court to deliver the record in the case for review; a general
appellate remedy; a proceeding by writ of certiorari (cause to be certified) is a special
proceeding by which a superior court requires some inferior tribunal, board, or a judicial
officer to transmit the record of its proceedings for review;
Mandamus; order reviewing body to do something proactively; Latin, “we command”; a
writ issued by a superior court to compel a lower court or a gov’t officer to perform
mandatory or purely ministerial duties correctly
Prohibition: stop the reviewing body from doing something; an order that forbids a
certain action; a writ issued by an appellate court to prevent a lower court from exceeding
its jurisdiction or to prevent a non-judicial officer or entity from exercising a power

Equitable and private law remedies have been extended into public law realm; In Ontario
Judicial Review Procedures Act and Federal Court Act both list powers of court upon
judicial review
Mullan text: he reproduces PEI Judicial Review Act; gives judge power to nullify act of
tribunal (certiorari); direct an act by tribunal (mandamus); prohibit an act (prohibition);
this is putting into statute the common law remedies of writs such as certiorari,
mandamus and prohibition

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Volker Stevin v. Northwest Territories (Commissioner) (1994), 113 DLR (4th) 639 (NWT CA)
How do we distinguish gov’t activities that are matter of public law or a matter of
private law?
Government conduct in business
Facts:
• decision of advisory committee of civil servants and business representatives to revoke
the status of Volker Stevin as a ‘northern business’
• committee acted pursuant to a policy document of the NWT government
• Volker Stevin applied for certiorari to quash the decision

• NWT argued the decision was commercial, involving government procurement of goods
and services, and thus not subject to administrative law remedies

 Decision taken by advisory committee under policy directive;

 Their role is too classify businesses as northern businesses; gives them special status to
conduct business with territorial gov’t
 If you get this status you are going to have greater business opportunities
 Volker Stevin was a company with northern designation and lost status
 Applies for an order of certiorari to have decision reviewed and quashed
Issue:
 Is this a commercial act of gov’t in relation to procurement of services and subject to private
law or a gov’t activity in the area of public law?
 How do we distinguish private and public capacity of state?
NWT CA Analysis:
 Distinction of Sovereign acts by State and Private/Commercial Acts by State
 How do we draw the distinction? What methodology do we use?
 Passage of legislation is a sovereign act but contracting to hire someone to mow the lawn in
front of legislature is a private act
Examine/Consider:
1. Source of Power; is there a statutory power? Problem is that some statutory power can be
characterized as a commercial/private power by state
2. Consequentialist; engage in an analysis of consequences of power in question; e.g.
legislation applies generally and effects all kinds of people; raises public policy and so is
sovereign act
3. Nature of the Power or Functionalist: examine a decision, here to designate a business a
northern and decide whether it reflects the power of the state; is this a power that only the
state could carry out? There are some decisions or acts that can only be carried out by the
State;
Examples of Sovereign Act: passing legislation; endorsement of final decision resolving a
dispute, even if taken by private arbitration panel; monopoly over use of force; declare war;
power to enter into treaties; designation of official currency; taking on debt;
 Admin law remedies are applicable; general procurement activities are commercial but
designating a business is public act
 This was a prerogative act
‘Decisions of administrative bodies are reviewable on certiorari if an analysis of their functions
discloses a duty of procedural fairness….

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The business incentive policy monitoring office, its officers, and the committees created by the
policy are part of the machinery of government decision-making….
 These activities go beyond merely procuring goods; the decision would affect business not
only to contract with gov’t but all organizations and companies applying the decision
… The decision of the Advisory Committee… affects, not only the individual contract, but the
ability of the business to compete with others in contracting with the government generally and
with organizations funded by government.’ (text p 1098)
 Court says, (p. 1098) “It is this aspect that brings in the public duty and fairness component.”

Nature of the Power and Its Source

#3. Analysis of Nature of the Power/Functionalist;
 Breadth of impact on a business to engage in business generally in NWT means that public
law remedies apply;
 But if you designate business as northern to decide who qualifies to do business how is that
any different from private companies making decisions about who they will or will not do
business with;
 Here NWT was not prohibiting Volker Stevin from doing business but it was saying the
gov’t would not do business with them unless the company had a certain structure, etc.

Holding:
• NWT CA: administrative law remedies are available
• judicial review applies to prerogative as well as statutory powers (source of
power)
• here, the committee was not merely procuring goods and services, but ‘exercising
a power which affects the status of business enterprises, and their ability to
compete effectively in the Northwest Territories…’ (text p 1096) (nature of
power)
• emphasis on nature of the power as well as its source

• Decision open to review for procedural unfairness by way of an application for an

order in the nature of certiorari; court remitted the matter back to a judge to
decide whether there had been a denial of procedural fairness in the revocation of
the applicant’s designation

Harelkin v U of Regina [1979] SCC (Sask)

Unfair process doesn’t necessarily mean JR can be “pre-emptive”
Facts: H was kicked out of Uni program, appealed to university board, which dismissed him
w/out reasons. Rather than appeal to university senate, and exhausting internal mechanisms, he
seeks jucdicial review to have this quashed, and be reinstated (certiorari and mandamus)
Issue: Before resorting to JR, does a person have to resort to alternative resources.
Held: can’t go through JR where there’s a reasonable alternative you haven’t resorted to. The
courts’ remedies of certiorari and mandamus are discretionary …

To decide whether alternative remedied adequate:

1. what procedures are available on appeal, and can they address the concerns/errors that arise
from the first decision (subject of appeal)?
Majority: Here, no duty for first to generate reasons, so he doesn’t know what arguments will
succeed to get decision overturned.

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Dissent: subsequent hearing will be tainted
2. the composition of appeal committee—need different people deciding
3. powers of appeal committee—would they be able to hear the matter anew, or would they
defer to the first committee, w/out re hearing—do they have sufficient power to overrule?
Majority: B/c of number of reasons, likely that they would re-hear, which means it would be
adequate as a remedy.
Dissent: won’t get new hearing—they’ll defer
4. whether the alternative remedy if more convenient (big factor—drives the decision)
Majority: The alternative remedy is more convenient.
Too high admin burden created if you allow person to skip internal process and go to courts—
maybe selectively, by taking different PF issues to court whenever dissatisfied.

‘The courts should not use their discretion to promote delay and expenditure unless there is no other way
to protect a right’ (text p 1264)
the statute gives preference to a university’s internal process ‘to correct its own errors,
consonantly with the traditional autonomy of universities, as well as with expeditiousness and
low cost for the public and the members of the university’ (text p 1265)

Ratio: Appeal procedures + likelihood of re-hearing + convenience —>university remedy

adequate

Dissent: the alternative remedy offered by uni inadequate, b/c the nature of the error of first
committee was denial of justice/PF, that’s likely to infect whole decision making process. B/c of
absence of hearing, reviewing body doesn’t have access to his arguments. It would only be
effective if he was entitled to new hearing, and based on uni’s rule, unlikely that he’d get new
hearing.

SAAQ v. Cyr, 2008 SCC

Downloading/privatization of responsibilities to private entities.
Do PL rules apply as they would to private bodies

Facts: Pursuant to s. 520 of the Highway Safety Code (“HSC”), the Société de
l’assurance automobile du Québec (“SAAQ”) entered into K w/CVMM to carry out, on
its behalf, the mechanical inspection of road vehicles. Appendix A-1 of the contract
designated C, an employee of CVMM, as an “accredited mechanic” for the purpose of the
SAAQ’s vehicle inspection program and holds C to certain regulatory standards.  C did
not sign the contract but signed appendix.  Following notices of breach for failure to
apply the appropriate standards during certain inspections, C’s accreditation was revoked,
and he was unable to continue his employment with CVMM.  C and CVMM filed a
motion for JR, along with a motion for a suspension of the decision to revoke the
accreditation.  Argue that the revocation of C’s accreditation was illegal because the
decision had not been rendered in a manner consistent with the Act respecting
administrative justice (“AAJ”)—part of QB civil code. 
Superior Court: The actions of the SAAQ in sending the notices of breach and subsequent
revocation of accreditation were an exercise of contractual rights and dismissed the
application. 
Court of Appeal: set aside the decision, holding that C had the right to procedural fairness
with respect to the SAAQ’s decision to revoke his accreditation and also held that the

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existence of a K could not be used by the SAAQ to avoid the obligations codified by s. 5
of the AAJ, which applied to any unilateral decision taken pursuant to the administrative
authority conferred by the HSC.

Issue: What laws apply? Private law contract (K), or public law?

Held: C entitled to PF under s. 5 of AAJ, and can’t be considered party to contract. Cyr’s
certification was an administrative authorization, so the Act applies [55]. By nature of
activity in Q, he was authorized to do something that would otherwise be illegal (to
certify autos as safe for purposes of QB highways).
(Note: In QB, Act respecting Administrative justice—loosely comparable to stat power
procedures act—consolidates tribunal laws and provides that PF requirement apply to
decision to award/remove licenses or admin authorization.)

[6] In his accreditation by SAAQ to conduct vehicle inspection, they were granting him
authorization to act on its behalf, as an E of its mandatory CVMM, in a manner that
would others wise be illegal (would be fraudulent for him to set up shop and say that he’s
certifying vehicles). The accreditation is akin to police (i.e. regulatory) powers of the
state.

Focus is on nature of activity in Q: a person is being authorized to certify vehicles as safe

—police/regulatory aspects of the state.
VH: Is this a public function being delegated, or can anybody do this—a private garage
who checks cars?

Dissent:
 The parties are bound by contract and the remedies available to them are governed
by the rules of private law.
 Via Highway Safety Code, SAAQ regulates and delegated authority to mechanics.
 Cyr not Public office holder. Under Code, legislature has outlined which activities
subject to PF, and which are not. The Act only provides for PL remedies to be
available in areas that affect the rights of people as road users. The activities of
inspecting cars not PL or subject to PL remedy.
Rules of public law therefore apply where the relationship between the Society and the person in
question is one of regulatory authority and use’ (para 60); this is a matter of organizing service
delivery (para 65)
 Cyr signed appendix to K. Shouldn’t allow Cyr to choose which remedy, private
or public, serves his interest. (VH: More in line w/Dunsmuir—w/draw rights of
PF to public law office holders whose jobs are governed by contract).
 The Act is not an ‘administrative authorization’ because C would not otherwise be free to
issue certificates; But for the regulatory scheme, could you have this authorization?
No, b/c w/out regulatory scheme, he couldn’t have a job, b/c the regulations
wouldn’t be in place (Semantic argument over authorization this is less relevant
to the differences in the majority and dissent)

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Different analytical approach—not looking at admin authorization and whether act itself
an admin act, rather:
1) focuses on act itself—look at specific statute rather than AAJ-- and the regulation and
delegation of the authority to mechanics.
2) focuses on contract b/n SAAQ and CVVM, his ER, and his signed appendix—he was
aware of what was in the contract. Only signed appendix b/c ER aware that EE may
change

VH: You can cut and splice in results oriented way, in order to say whether something
falls into public or private

3 methods to distinguish
1) source of authority (here, it’s a statute; there may be some acts that derive power from
statute, but are still private functions)
2) consequences
3) nature of act—certification of vehicles upon mechanical inspection. Is that private or
public?

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