CH 1: THE ADMINISTRATIVE STATE AND THE RULE OF LAW

- create a new legal framework, administered by some agency, other than the courts of law after
an identification of a problem not addressed by the operation of the market or private law (3)
- nearly all public programs originate with a statute enacted by either the provincial or feds
legislature to create new legal rights and duties
Independent Admin Agencies > (1) independence from govt (sort of), (2) those liable to be
affected by a decision are given an opportunity to participate in the decision making process, ( 3)
admin agencies typically operate where the public program is applied to the individual, (4) they
are specualized (12-15)
Independent Admin Agencies over Courts? > (1) decisions made would be inappropriate for
Courts, (2) decisions made by people with expertise other than judges, (3) claims involve small
sums of money, thus no need to clog courts, (4) more informal = expeditious
Grounds for Review > (1) Procedural Impropriety: must give prior notice or opportunity to
respond, (2) Illegality, (3) Unreasonableness, (4) Unconstitutionality
CH 2: CONSTITUTIONAL BASIS FOR JUDICIAL REVIEW
- Constitution provides no provision that expressly deals with the power of the courts to review
decisions of admin agencies
S96 Constitution 1867: provides for appointment of judges. Through s96, courts have assumed
power to review legislation investing a provincially established administrative tribunal. (Re
Residential Tenancies see public)
-if functions provided for in legislation ought not to belong to court (privitive clause), under s96
legislation will be unconstitutional (Crevier)
Judicial Review and Charter of Rights > arguable that adequate access to JR is a requirement
of the principles of fundamental justice for the purpose of s7 life, liberty, sec of person
CH 3: THE ROLE OF JUDICIAL REVIEW - see ch5
Baker v Canada (1999)
(Facts: lady had been rejected for application to remain in Canada based on Officers letter to
Minister she said she should have been exempt based on humanitarian and compassionate
(H+C))

1)
2)
3)
4)
5)

Procedural Fairness: is variable and depends upon facts in each case

Factors affecting procedural fairness: (66-67)
Nature of decision and process to making it
Nature of statute (ex greater protection will be required if there is no appeal procedure
provided for in statute)
Importance of decision to individual affected
Legitimate expectations of person
Choices of procedure of agency itself
Also:
Provision of Reasons: in some circs reasons will be required as part of procedural fairness. In
Baker they were given as she was provided with the Officers notes
Legitimate expectations: depends whether statute affords one over and above normal. In Baker,
she had a chance to put forward in writing her position, thus

Participatory rights: individuals affected should have reasonable opportunity to give evidence to
support case here, she had the opportunity in writing as oral hearing is not mandatory in H&C
decisions
Apprehension of bias: would reasonable person think decision made unfairly with bias? In Baker,
there was bias based on what Officer wrote
Discretionary decision-making (ie. where decision maker (eg Minister) is given statutory
authority to make exceptions)
-decision must be made within bounds of statute, however considerable deference
will be give to decision maker
Standard of review
Pragmatic and Functional Approach (Pushpanathan): considers several factors as to whether
administrative decision should be judicially reviewed. The more discretion left to a decision
maker, the less courts should interfere legislature intention primary importance (text pg 76).
Ask:
1) -is there a privative clause?
2) -what is expertise of decision maker
3) -what is purpose of provision and act as a whole
4) -what is nature of problem in question, and does it relate to question of fact or law. In Baker,
looking and H+C cases, facts of the case are very important. APPEAL ALLOWED based on bias
and he didnt take children enough into account

STEP 1: JR Application re: procedural issue

Does duty of PF apply? CH4
If so, has duty been met (content of PF) CH5
If not, quash all or nothing approach
STEP 2: JR Application re: substantive issue
- review merits or substance of decision according to appropriate standard of review
- based on what SOR is selected (correctness or reasonableness) the court will either give
deference to the tribunal or give no deference

CH 4: PROCEDURAL FAIRNESS: THE THRESHOLD of whether you should be

afforded PF
In order to determine if procedural fairness applies a court must first consider if the threshold has
been met. If the court finds that there should have been a duty of procedural fairness and it was
not complied with then the decision of the board/tribunal/commission will be quashed.
STEP 2: Examine the Statute
Does the statute remove PF owed under the CL? ** SHE WILL SAY IN EXAM IF THIS
APPLIES
If its in there: Say that it supersedes CL.
Ex. Statute will say: we can refuse your application without a hearing or something like that

Need clear provision to take away right to PF

Where unambiguous, the statute will supersede the CL
NOTE: If statute says you must give noticelook to CL to see what adequate notice is; must
give hearinglook to CL to see what adequate hearing is
STEP 3: Apply the Common Law
Step 1: Is there a right, privilege or interest at stake?
3 factors in assessing whether there was a duty of fairness: Knight (originally from Cardinal):
1) Nature of decision: (Administrative v Legislative OR Final v Interim)
(a) Is the decision final or interim?
Final/determinative = duty If JR = final and court can quash decision
Interim = no duty Right of Appeal clause = interim
Exceptions:

Recommendation based on investigation (interim) could lead to a final decision (Re

Abel)

If recommendation would have minor impact on final determination = no duty of PF

(Dairy Producers Co-operative Ltd v Saskatchewan)
b) Is the decision administrative (ie. specific to the person) or legislative (general effect)?
Rule: Look at the nature of the decision itself, and NOT the form of the power being exercised
(Homex)
Consider: (1) Number of people effected (Homex), (2) Nature of who made the decision (Inuit),
(3) Effect of the decision (Homex; School closure cases) and (4) Decision made on broad
grounds of public policy falls short of test
Administrative = duty
OR
Legislative = no duty

a purely ministerial decision, on broad grounds of public policy, will typically afford the
individual no procedural protection (Martineau v Matsqui Institution)

(i)

If legislative, do one of these apply:

Cabinet/ Cabinet Appeals:
RuleGeneral legislative decisions determining policy of broad application do not attract the
duty of PF (Inuit Tapirisat)
Inuit Tapirisat: no duty to afford PF to cabinet material. Telephone rates affected vast number of
people; Cabinet had vast powers to be able to intervene on own motion/discretionary powers

(ii)

By-laws:
Rule: if bylaw is directed at one person and it is not of general application, then that by-law will
required a duty of PF; however if by-law directed at everyone = legislative

Absurd to allow everyone a hearing

If by-law directed at single person = specific and duty of PF owed (Homex)

On-going dispute = duty to afford PF (Homex)

Note: If decision is specific and final = duty (Knight- decision final and dealing specifically w
him)

(iii)

Policy making & school closures:

Rule: PF not applicable to legislative or policy decisions.
The rationale for this is that it would allow too many ppl to be given a hearing. For PF to apply to
a policy or legislative decision, the duty to afford PF must be clearly spelled-out in the legislation
(Canadian Association of Regulated Importers v Canada)
School closure: difficult to determine whether admin or leg(say both views)

View 1: Admin: b/c duty of PF applies to decisions that affect a finate group and have a high
degree of impact (Bezaire v Windsor Roman Catholic Separate School Board)

School closures are policy decisions w broad impact on finite grp

View 2: Legislative: b/c it could be considered a general policy decision
PF will not be given for:
1)
Government acting for private citizen (Dunsmuir)
If there is a K, then look at that Kprivate employment law will provide for protection for
employees through notice period (Dunsmuir)
2)
Government tendering/contracting:
Government tendering demands that all bidders compete on a level playing field in terms of the
call for tenders, and certiorari is available to quash the award of a contract in the event that the
process was flawed

If public money spent for improper or in improper manner, the conduct of the
municipality should be subject to JR (Shell Canada)
Facts: Vancouver decided not to do business w Shell; reviewable under PF because:
(i)
Government not acting purely as private citizen
(ii)
Government acting outside of its statutory mandatedisapproval of South African
regime beyond what municipality expected to do
(iii)
Although decision not reviewable, decisions should be carried out fairly
2) Nature of relationship between decision-maker and the individual: (not always applicable)
Rule: Most often the relationship is Public Body and Citizen BUT this element acts as a catchall for thinking about other things that may alter analysis that flows from nature/impact of
decision
If employment relationship:
a) PF applies whenever there is a decision to terminate a public officer whether for privilege
or not
b) Focus on the nature of the employment relationship/ office holders (Knight; Dunsmuir)
(i) No K of employment and the office is purely statutory (ie. Minister and Judges) = duty of
PF
(ii) If terms of employment expressly provide for summary dismissal or are silent on the
matter/ employment at pleasure = duty to afford PF
(iii) If the terms of appointment confer procedural rights = statutorily based right to PF, but
no CL right
(iv) If the relationship is purely contractual, should be treated in private law-- look at that K
private employment law will provide for protection for employees through a notice
period (Dunsmuir)
3) Effect of decision on the individuals rights: it was clearly established that termination of
employment is a significant decision with an important impact
Step 2: Consider if any of the following apply
1.
Emergencies:
Randolph withdraw mail service to a person without a hearing when basis for decision was
belief that the mails were being used for criminal purposes.
Cardinal -Two prisoners were being held in isolation after being involved in a hostage taking in
an attempted escape. They were placed there without given a hearing. It was done so in an
emergency situation so PF did not apply.

V.M. v. BC - Jehovahs Witness parents received minimal notice and ability to challenge medical
evidence when the Director seized their sextuplets to give them blood transfusions. In this case
there could be no interim decision.
**If only for an interim basis, like most emergency cases, and is open to reassessment in the
context of an explicit provision after the event hearing then DoF will not apply in emergency
situations.
2.
Investigatory/Interim Decisions
Rule: An investigation with recommendations that is not a final decision owes no right to PF
BUT if those recommendations are going to have so much weight in the process that it is
effectively the decision then there will be right to PF. In an investigation, the rights, privileges
and interests of a person are usually not in issue.
Report: If its a report (and it hasnt decided anything) and the report affects the reputation of a
person then there may be a duty of PF on the makers of the report. Kriever Commission
Guay v. Lafleur [1965]: G was one of a group of taxpayers whose affairs were under
investigation. He was unsuccessful in being allowed to be present for the questioning of
witnesses.
Re Abel and Advisory Review board [1979]: Persons detained after being found NCRMD were
denied access to the Boards materials and report. Final decision was made by the lieutenantgovernor. Court found virtually only chance of success applicants had was a positive report.
Persons had a right to assess the reports and materials and recommendations.
3)LegitimateExpectations
-A person whos interest is affected and has developed a LE that he or she will be accorded
procedural fairness then that person should receive procedural fairness.
-How would a LE arise?
Element 1: Look at past conduct and practices of parties. To form a LE requires a clear
unambiguous and unqualified promise (through words and/or action): It must be clear that
what those were the past practices and procedures were always offered in that manner. E.g.
CUPE (no firm practice in past of ministers appointing form the list. Each minister did it
differently)
Element 2: The expectation cannot conflict with the statutory duty. You cannot change the statute
because of an expectation.
Element 3: The doctrine of legitimate expectations does not give rise to substantive rights. It is
only a source of procedural claims: Reference re Canada Assistance Plan (**Need to find a LE is
a procedure used. i.e. always get reasons. To say they always made the same decision would be
wrong as this is getting into substantive law.)
Split on if Actual Knowledge or Reliance is required. Furrey said yes but Binnie J in Mtn
Sinai said No.
Relief is procedural and within the powers of the Admin body Mtn Sinai

CONSTITUTIONALDIMENSIONSofPF
seech11analysisrejurisdiction
Again,wearelookingtoseewhethertheproceduralthresholdhasbeencrossedbefore
weconducttheanalysisinCh5

STEP 1

Threshold: When the statute explicitly excludes procedural entitlements or is interpreted not to
allow procedural entitlements, then you can use the Charter or BoR**Statute overrides common
law. Charter or BoR overrides statute!

STEP 2
Once you find that the Charter of BOR applies, you have to find a right that applies
o
Charter S.7
o
BOR S. 1(a)
o
BOR S. 2(e)
BILL OF RIGHTS
STEP 1
- Bill of Rights: matter must be in federal sphere (only applies to federal statute) BUT.... Does not
include Canadas Business Corporations Act
- Unlike the Charter, the reach of the BOR corresponds generally to that of JR under the Federal
Court Act. Not confined to just the government.
STEP 2: ESTABLISHING A RIGHT UNDER BILL OF RIGHTS
S1(a) BoR
- s1(a): right of the individual to life, liberty and security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law Threshold: Only
applies to individuals (natural persons), not corporations
Element 1: Is there a right to life liberty and security (similar to s7 interpretation)? And
Element 2: enjoyment to property? And
Element 3: the right not to be deprived thereof except by due process of the law?
USE Bill of Rights, s. 1(a) for due process = procedural fairness (notice, opportunity to
make submissions, some substantive content, property rights)
S2(e) BoR
s2(e): no law of Canada shall be construed and applied so as to deprive a person of the
right to a fair hearing in accordance with the principles of fundamental justice for the
determination of his rights and obligations
Threshold:Personratherthanindividual(Includescorporation)

Element 1: Was person deprived if the right to a fair hearing?

Element 2: In accordance with the PoFJ?
Element3:Forthedeterminationofhisrightsandobligations?MainDetermination

CASEEXAMPLE
Doesthes2(e)ofBORapplytoCabinetDecisions?Inorderfors2(e)oftheBORtoapplyto
cabinetdecisionstherightsandobligationsmustbeuniquetothepersonorinterveners
bringingtheapplication.Ifbroadapplicationandnotspecifictoyou,thenwontwork:National
AntiPovertyOrganization

Itisnotenoughwhensomeonehasaninterestinthedecisionoraninterestisbeingaffected:
NationalAntiPovertyOrganization


S 2(e) of the Bill applies only to guarantee the fundamental justice of proceedings before any
tribunal or administrative body that determine indvl rights and obligations. >>> It does not
impose on Parliament the duty to provide a hearing before the enactment of legislation.
(Authorson v. Canada (Attorney General) (2002) interest on veteran pension denied, bill
passed through all necessary readings etc. They argued this went against their enjoyment of
property under 1(a))
NB: Unless the conflicting legislation expressly declares that it operates notwithstanding the Bill
of Rights, the Bill of Rights applies and the legislation is inoperative. The Bill of Rights protects
only rights that existed in 1960, prior to its passage: Authorson
CHARTER OF RIGHTS AND FREEDOMS
Charter of Rights and Freedoms: may be federal or provincial sphere
Charter
s2 everyone has the following rights:
a) freedom of religion
b) freedom of thought, belief, opinion , expression and press
c) freedom of peaceful assembly and association
s7 right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
s 8 Everyone has the right to be secure against unreasonable search or seizure.
s9 Everyone has the right not to be arbitrarily detained or imprisoned.
s 10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if
the detention is not lawful.
s 15 (1) Every individual is equal before the law and has the right to the equal protection and
equal benefit of the law without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Section 1 and the Oaks Test :
{STATE} Charter rights have been breached and will depend on a charter analysis, per s1
and the Oakes test.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
Once a violation of a Charter right is found the burden shifts to the Govt to show that the
limitation in justified.
The Oaks Test.
a) Importance of the objective
b) Rational connection between the objective and he means
c) Minimal impairment possible.
If justified that portion or the Statute has no force or effect. S52(1)

STEP 1
Must involve state action:
Because of applying only to governmental action, does not cover same scope as judicial review
(or Bill of Rights in federal sphere):
- Even if public, not necessarily government action: McKinney v. University of Guelph,
- Human rights commissions are bound by the charter: Blencoe
- BUT. Some bodies otherwise not government may be when implementing government
policy or program: Eldridge (in that case, translation services for the hearing impaired)
STEP 2
ESTABLISHING A RIGHT UNDER CHARTER
S7: Everyone has the right to life, liberty and security of the person, and the right not to be
deprived thereof except in accordance with the principles of fundamental justice

S7 is the principle source of procedural protections (Also has a substantive

component)
ELEMENT 1: Was the right to life, liberty or security breached?
Security of the person:
(1) Interference with bodily integrity and;
(2) Serious state-imposed psychological stress constitutes a breach of an individuals security of
the person and;
(3) Also includes freedom from the threat of physical punishment or suffering from Singh
(included deportation where life may be threatened).
ELEMENT 2: If so, was it in accordance with the POFJ?
Accordance with POFJ:
NotinaccordancewithPFJiftheAhasnoknowledgeoftheMinisterscasebeyondthe
rudimentaryreasonswhichtheministerhasdecidedtogivehiminrejectinghisclaim:(Singhv.
Canada(MinisterofEmploymentandImmigration)wantedrefugeestatusforfearof
prosecutioninIndiatheyweredeniedbytheMinister,whotookadvicefromRefugee
CommitteeHELDtheirCharterrightswereviolatedbynotgivingthemahearing)
WHAT PROCEDURAL CLAIMS MAY BE MADE UNDER THE CHARTER (POFJ)
Singh: at a minimum s 7 includes procedural fairness
Charkaoui: disclosure of case to meet is a principle of fundamental justice; if not full
disclosure, must be substantial compliance with principle; s7 breached and could not be saved
under s.1.
Chiarelli v. Canada (Minister of Justice) (1992) SCC P. 231:
ThecourtheldthatdisclosureofconfidentialsourceswasntrequiredbyPFJhehadbeen
givenasummaryoftheevidence(ifhewouldnthavebeengiventhismighthavebeena
breach)butthenamesofthesourcesarenotrequired
Suresh v. Canada (Minister of Citizenship and Immigration) (2002) SCC P. 298:
- Where risk of torture, information re deportation must be disclosed and individual given
opportunity to respond; reasons required for relevant issues. Subject to claims of privilege
- Did not insist that there has to be oral hearing could be done in writing. Minister had to provide
reasons.


Threedifferencesb/wBORandtheCharterS.7:
TheuseofthetermindividualandpersoninBOR,asopposedtoEveryoneinCharter
Everyoneincludescorporations
WhethercorporationsisincludedintheBORhasyettobedefinitivelybedetermined
TheinclusionofenjoymentofpropertyinBOR
S.7doesnotincludeprotectionforpropertyrights
c.Theattachmentins.2(e)ofproceduralprotectionstothedeterminationofrightsand
obligations

CH 5: THE CHOICE OF PROCEDURES see ch3(whatproceduresarerequiredtomake

decisionprocessfair,thecourtshaveflexibilityindeterminingtheproceduralrequirementsfull
hearingtowrittensubmissions)
- once it has been est that the threshold for PF has been met, it is necessary to determine the
content of procedural fairness based on the 5 Baker factors as applied in Suresh to help us
determine how much procedural fairness should be required
1) Nature of the Decision Making Process
a)
Is it a discretionary decision? (More reason for PF)
- Argue that if there is a high level of discretion then perhaps can lean towards PF to
ensure that discretion was exercised properly.
b)
Is the decision of a serious nature, does it affect those around them?
- If yes then the greater the impact then the more rigorous the procedural protections
will be mandated. i.e. torture and deportation is most serious
- When doing this analysis it is best to do it in the context of a comparison to cases such
as Baker and Suresh in order to determine the serious nature of the decision. E.g. in
Suresh there was the issue of torture or deportation in Baker.
c)
Does the process resemble a judicial decision?
- The more the process resembles a judicial decision, the more likely procedural
protections will be required Knight
*higherseverity=PF;higherdiscretion=noPF

2) Nature of Statutory Scheme

> Greater procedural protection required when there is no:
1.
provision for a hearing
2.
if the decision is final and determinative (Baker),
If there is a privative clause this would seem to suggest that procedural fairness should
apply as the decision is likely final and determinative.
3.
If no requirement of oral or written submission,
4.
If no right of appeal,
5.
Only subject to JR as judges can only quash they cannot replace decision of the board.
3)TheImportanceoftheDecisiontotheIndividualAffected
4)LegitimateExpectationsofPersonChallengingDecision(seeabove)
5)ChoiceofProceduresMadebytheAgency>expertise+discretionrequireslower
proceduralfairness

CONCLUDE a
LOW - meting, informal, reasons, right to be hear in some way
MED - written subs, right to heard in some way
HIGH -full court procedural, oral, legal rep,
range of PF should be Applied.

Onceyoudetermine,basedonthe5factors,howmuchPFshouldberequired,youapply
thisstandardtotheCONTENTofPFbelowseeifanyofthecontentbelowhas
occurred

CONTENTOFPF:WHATSPECIFICPROCEDUREAREYOURSEEKINGWHAT
DIDTHEYMISS?

PREHEARINGCONTENTISSUES
Notice
noticeofahearingmustbeprovidedtothepersonthatthehearingwillaffect
Takeintoaccount>(1)Form:oralorwritten,(2)mannerofservice:ReRymalcanbe
reasonablyexpectedtocometotheattentionofinterestedpersons,(3)timing:mustgetearly
enoughtohavereasonableopportunitytoparticipate(Krever),(4)content:noticemustbe
reasonablyeffectiveinprovidinginformation(OntarioHydro)
Kriver- HIV inquiry regarding blood transfusions. At conclusion of hearing notices were issued
indicating the possibility of Misconduct and allowing the party to respond. Argued that notice at
end of hearing was inadequate. Held: was adequate as not Crim trial consequences less serious
and less PF required. Parties were sophisticated. Need for Flexibility, and tailor procedures to
specific facts.
Re Webb welfare housing, kids out of control was give oral and written notice, was adequate.

requirementforNotice=fairness,notperfection

Discovery
The Stinchcombe Rules require the Crown to disclose all relevant information in its possession,
subject to privilege.
Having information available is an aspect of fairness.
There are two kinds of administrative law disclosure: from the Tribunal to the parties (the
Tribunal vets the material, sometimes adds its own, and sends it to the parties); and bw the
parties.
-Duty of fairness does not require the disclosure of all relevant info.
-First, look at disclosure requirements in the statutory or tribunal rules of procedure. The -CL
level of disclosure is flexible, depending on the Baker factors.
-This is illustrated by different rules for different bodies: - Generally, mutual disclosure is
required for documents that will be relied on.
Participants generally have the right to reasonable information in advance requests for full
discovery rights have occasionally been accepted. > Privilege will still be protected.

Additionally, some factors may require non-disclosure, such as: national security,
confidentiality, other policy reasons, or other fairness concerns.
May v. Ferndale Institution > inmates, computerized reclassification system Here, CSCs failure
to disclose the scoring matrix was a clear breach of its statutory duty of disclosure. > Without the
scoring matrix, the inmate were deprived of information essential to understanding the
computerized system which generated their scores and were prevented from formulating a
meaningful response to the reclassification decisions.
Pritchard v Ontario (Human Rights Comm) see agency counsel below> SCC of Canada
confirmed the application of solicitor-client privilege to legal opinions prepared by an
administrative agencys in-house counsel. >> The work done by in-house counsel involves legal
and non legal responsibilities. The application of privilege depends on the circumstances in
which advice is sought and given, the subject matter of the advice and the nature of the
relationship. When solicitor-client privilege is found, it applies with equal force in the context of
advice given to an administrative board by inhouse counsel as it does to advice given in the realm
of private law.
Delay
Kodellas- Human Rights case delay of 4 yrs between complaints and hearing. Delay fault of
Commission. K had intended to call whole staff and his memory had faided. Actual Predjudice
found. BUT parties expected to make efforts to preserve evidence and locate witnesses, and may
have proceed without all witness.
>(1)whetherdelayisprimafacieunreasonableconsideringtimerequirements,(2)reasonfor
delay,(3)theprejudice/impairmentthatdelaycaused

Blenco,thecourtlookedat>(1)impactofdelay,(2)natureofproceeding/statute/body,(3)cause
ofdelay
What To understand from this case: What the threshold was for a remedy and what the
threshold was for a stay of proceedings as a remedy?

If you meet the high threshold, the delay would be so severe that it would be contrary to
justice and would prevent a person from answering the case i.e. dead witness

Where the remedy is a stay of proceedings, the threshold to be met is high b/c a stay of
proceedings is a serious remedy. The threshold must be an abuse of process.

There are other remedies available e.g. cost and less serious remedies could be met by a
lower threshold

THEACTUALHEARING
OralHearing
Thereisnopresumptionofanoralhearing
Factorstoconsider>
(1)Natureofissue(Masters:accusedofSexualassaultafterinvestigationinterviewedwomen.
HeappliedforJRoftheInvestigativereport,arguredthathewasnotinvolvedininterviews,or
givenwitnessdetails.HELDnotrialtypehearingasprocessnotclosetoacrimtrial.PFwas
satisfiedbygivinghimnamesofwitnessessohecouldinterviewthenhimself.):fairnessdoesnot
generallyrequireoralhearingininvestigativecontextorwhereindividualknowsthecaseagainst
them

(2) Credibility (Khan- Law student who failed evidence, said she had 4 booklets. Took it to JR
HELD the case stood on her creditability so oral hearing required. Different if just arguing that
grade was to low.
-When credit an issue decision maker may need to see expressions, hear speech of person.
wherecredibilityisinvolved,oralhearingisprobablyrequired

OpenHearing(OralHearingallowed)
S 9 SPPA (Stat Power Procedure Act) (Ontario): conditions the exercise of discretion of Tribunal
to hold open hearing with a presumption in favour of openness.
-consider countervailing factors:
(1) Freedom of expression and media access = open; (2) privacy rights of complainants,
witnesses, etc. = closed
1) Does the Agency have Discretion to Close or does Statute Mandate it Closed Charkaoui
2) If Not Consider - -freedom of expression media access, Privacy rights, reputation, stigma,
commercially sensitive material.

RighttoCounsel
Thereisnotgeneralrighttocounsel(ReMensClothing)
Factors>(1)complexity,(2)capacity,(3)impactofoutcome(ReParrish))
considerationofs7Charteralsorelevantasitdoesnotgiveabsoluterighttocounsel(Howardv
StonyMountain)
-In Ontario Right to council Provided for s10 SPAA when,
Individual subpoenaed, required to attend and testify under oath, reports are made public,
individual can be deprived of rights/livhood

Disclosure
Apartyisentitledtoknowwhatevidenceandrepresentationhavebeengivenandisentitledto
adequateopportunitytorespond(Kane,Charkaoui)
therearepresumptionsinfavourofdisclosure,looktoseeiftherearereasonsfornondisclosure

Disclosure>givinginformationtothepartiesthattheagencyhasrelevanttothedecision

criminallawstandardfordisclosure,notapplicabletoadmin(Mayjailtransferscoringmatrix)
Ifanagencyreliesonevidenceorrepresentationsanddoesnotdiscloseorgiveanopportunity
torespond,decisioncanbechallenged(Kane)

ExceptionstoDisclosure
3rdpartyinterests(protectionofsources)(Gallant)
CrownPrivilege:canbeappliedunderAccesstoInformationAct
AccesstoInfoStatutes:dontprecludeCLrighttoinformation
commercially/politically/securitysensitiveinfo(Chiarelli)
costanddelay
interestinginobtainingcandid,complete,andobjectiveadvice

UnacceptableReasonsforNotDisclosing
tribunalclaimingthatthepersonalreadyknowstheinformationorassertingthattheinfois
accurate(Gough)
Dr.doesntwanttorevealfullreports


Charkaoui>TheImmigrationandRefugeeProtectionactallowstheMinisterofCitizenshipand
Immigrationtoissueacertificatedeclaringthataforeignnationalorpermanentresidentis
inadmissibletoCanada.>Thecertificateandthedetentionarebothsubjecttoreviewbya
judgeoftheFedCourtinaprocessthatmaydeprivethepersonofsomeoralloftheinformation
onthebasisofwhichthecertificatewasissuedorthedetentionordered.>Thesecrecyrequired
bytheschemedeniesthepersonnamedinacertificatetheopportunitytoknowthecaseput
againsthimandhencetochallengethegovernmentscase.>Thisinturnunderminesthejudges
abilitytocometoadecisionbasedonalltherelevantfactsandlaw.>Theinfringementofs7is
notsavedbys1oftheCharter.

OfficialNotice
Extent and manner to which agency may use material not in evidence.
Rule: If administrator is relying on something outside record, must advise parties so they can
counter it.
What types of material not in evidence can an agency use? > (1) Decision makers own expertise.
(Ie property assessment.), (2) Creation of a board with specialized expertise implies an intention
decision-makers will use that expertise in reaching decisions. (3) Colleagues
experience/collective knowledge of agency members. (4) Information gained in past cases. (5)
Books/files.

AdmissibilityofEvidence
Rules of evidence not applicable to agencies unless expressed by statute (which is rare).
-If normal rules of evidence not required to be followed, still procedural fairness required.
-therefore PF may only be invoked where more severe rules of evidence not followed

CrossExamination
Cross-Examination: where right to full hearing involved, cross-examination more likely should
be allowed (Innisfil v Vespra: whether the opposing municipality were entitled to cross-examine
the official of the ministry who had presented letter stating the govt policy had been settled).
Consider whether agency is exercising Court-like function in determining rights, or is simply
administrating (Innisfil v Vespra).
Cross-examination to be reasonably required under s 10.1(b) SPPA.

WhenwillPFrequireCrossExamination?>(1)impactandseriousnessofdecision,(2)natureof
proceeding(Innisfil),(3)howimportantthewitnessevidenceis(ReCountryofStrathcona),(4)
effectivenessofanothermeanstochallengetheevidence(ReCountryofStrathcona)
-Importance of the Evidence to the case adversarial nature, impact of decision, other means to
challenge evidence.
Re Country Strathcona Witness out of country so couldnt cross and test evidence. HELDOpportunity to be heard implies chance to test other sides case. There are other means to test case
then cross, the loss of chance to cross taken into consideration of weight given to evidence.
Other View:
Re B & Catholic Childrens Aid
Person put on a Child Abuse Register Child had since recanted; board relied on hearsay evidence
from the social worker without hearing from the child. HELD : Reliance on this evidence without

ability to cross resulted in a finding of denial of procedural fairness lack of ability to cross was
critical to the admissibility of the evidence,

POSTHEARINGISSUES

Reasons
Traditionally,dutytogivereasonswasnotpartofPFuntilBaker,whenitestthatthedutyto
givereasonsmayberequired
Thereisadutytogivereasonswhen>(1)decisionimportanttoindividual,(2)thereisa
statutoryrightofappeal,(3)wheredecisionsarediscretionary,(4)legitexpectations

analyse5Bakerfactorstoseeifthereisadutytogivereasons
Reasons should (VIA RAIL CANADA INC. v. NATIONAL TRANSPORTATION AGENCY):

Indicate factors considered in exercising discretion

Indicate findings of fact that form basis for decision

Indicate evidence on which findings of fact were made

Address major points at issue

Set out reasoning process

Should have been some discussion of what is an undue obstacledefine and apply
terms to the facts

Set out and weigh factors

Onerous requirements for reasons in this case

H: The agency failed to provide sufficient insight into the reasoning process or factors it
considered in determining obstacle & undueerred in law.
- potential s7 Charter breach if not given substantial information for decision (Charkaou see
abovei)
EFFECT OF BREACH OF DUTY TO GIVE REASONS

Complete failure to give reasons: mandamus must ask and be denied for reasons
(order something to be done)

Inadequate reasons: quash decision or remit to decision maker to provide reasons or

re-hear

CH 6: INSTITUTIONAL DECISIONS 1st limb of PF

Issue>(1)sheervolumeofthedecisionstobemademaydemandalargestaffandsome
arrangementsfordispersalofauthority;(2)therangeandcomplexityoftheissuesmaymakeit
impossibleforanyindividualtohavethetime,expertise,andperspectivetomakeanintelligent
decision

Delegation
delegatusnonpotestdelegare>righttobeheardmeansrighttobeheardbyperson/members
whowillmakethedecisionandwhohaveheardalltheevidenceandargument

Rule>aboardcannotconferonanothertheauthoritytodothingswhichotherwisethatperson
wouldhavetodohimself
Exceptions>statutepermittingdelegation(LocalGovtBoardvArlidge),


DisciplinaryPowerscannotbedelegated(Vine)>lookatthescopeiftheprovision
personallyvsanypersonauthorized

Factors>(1)natureofthedecision,ifmoreimportanttoindividual,shouldnotbedelegated
(Vine),(2)Complexityofdecision,(3)natureofdecisionmaker,(4)practicalfactors

If Delegation is Permitted must be by :

a) an expressed act
b) must not be unlimited c) Delegator must retain ultimate control d)
delegate must act with in power

Sub-Issue: Deciding without Hearing

-principle that only those members hearing all of evidence can decide issue, as otherwise
individual whose interests are at stake is not able to put full case forth (Arlidge)
- to insist that Minisers do everything would impair efficency they generally CAN delegate
(Arlidge)

ConsultationAmongAgencyMembers
General Rule: If a DM engages in consultation then such procedures must be voluntary and
optional.
-If new evidence is considered during consultation then the parties have to be given an
opportunity to respond. Decision makers cannot be forced to adopt positions they do not agree
with by consultation process: IWA, LOCAL 2-69 v. CONSOLIDATED-BATHURST
-only hearing members can decide the facts of a case, the relevant law, & application of law to
facts. Consultation on policy matters (or research, theoretical law, editing, presentation, etc.) is
okay if: parties are informed of any changes and given opportunity to respond; does not force the
bodys decision; and no new evidence is provided (Consolidated Bathurst).
Advantage: allows for consistency in decision making
Disadvantage: parties cannot respond when Board meets consults
-Parties must be aware of all arguments & considerations that impact the decision and given the
opportunity to give submissions (Payne).
- if after consultation takes place and the board changes their mind > (1) There is a
presumption that during consultation the tribunals have followed the procedure in the absence of
information to the contrary): ELLIS-DON LTD
(2) There must be evidence that the decision was changed/influenced by the process based on
factual consideration undertaken by the board in post-hearing consultation in order to find
breach of procedural fairness: ELLIS-DON LTD Remember if re: law or policy then this is ok.
Agency Counsel
- Nearly all admin agencies have legal counsel who may be employed full time
Lawyers involved in investigations & prosecutions should not assist those who adjudicate
(Quebec Inc v Quebec).
During Hearing: Counsel may advise the tribunal both sides must hear answers & make
submissions. Degree of intervention permitted depends on the context & counsels perceived
neutrality.

Counsel Assisting with Reasons: Counsel can assist with reasons the decision must be
substantively the members & counsel should be wary of retiring (going to the end) with the
committee members (Spring)
Factors to determine counsels role in assisting with reasons: nature of proceedings, composition
of tribunal, terms of enabling legislation, support structure available to tribunal, tribunals
workload etc. (Khan v. C P&S).
Reasons review (policy): policies cannot prevent the proper people from deciding the case
(Bovbel).
Pritchard v Ontario (Human Rights Comm see disclosure above
Agency guidelines:
-Some admin agencies make extensive use of guidelines on the interpretation of their enabling
legislation
- Members expected to follow guidelines unless exceptions exist. However, must be flexibility to
allow for exceptions Thamotharem > Whether guideline 7 in refugee case prescribes a hearing
procedure that is in breach of the claimants right to procedural fairness >>
Despite the express stat authority to make guidelines here, they do not have the same legal effect
that stat rules can have > Guidelines cannot lay down a mandatory rule from which members
have no meaningful degree of discretion to deviate regardless of the facts of the particular case
before them. > Since the language of guideline 7 expressly permits members to depart from the
standard order of questioning in exceptional circumstance, the court should be slow to conclude
that members will regard themselves as bound to follow the standard order in the absence of
clear evidence to the contrary.
EG Baker guidelines were applied to the substantive review of the decision. Bezaire failure
to follow the guidelines for consultation before school was closed went to whether it resulted in a
breach of PF.
The Guidelines / Policies Must be flexible to allow for exceptions Thamotharem see above
Bell Canada- accused of paying female employees less. Issue was the commissioners ability to
issue guidelines to fetter the discretion of the tribunal. HELD: guidelines are subordinate leg. To
fetter the discretion of tribunal was authorized by law. Guidelines can not be contrary to the act.
Can be challenged if issued in Bad Faith or to influence the process.

CH 7: BIAS AND LACK OF INDEPENDENCE 2nd limb of PF

General Rule: nemo judex in causa propria sua debet esse none should be judge in her own
cause > no personal interest in decision > cannot have associated with a party or cause

BIAS
Test: Reasonable Apprehension of Bias Test
-Committee for Justice and Liberty, Energy Probe: what would an informed person viewing the
matter realistically and practically conclude, having thought the matter through?

ConsiderAmountofBiasAllowable
Strictestforjudicialdecisions,morelenientonpoliticalorpolicydecisions

a)
b)
c)

d)

WhatTypeofBiasisPresent?
Pecuniary/other Material Interests
Direct (ie certain) pecuniary or other material interest in a matter will constitute bias (Energy
Probe).
Antagonism During Hearing
Most common situation is unreasonably aggressive questioning or comments about testimony
(Gooliah). May indicate decision makers bias towards issue.
Association between Party & Decision Maker
-self explanatory (Coventant of Sacred Heart owner of residence was the members wife, who
was a member of the executive of a ratepayers group) (Marques since a year had passed b/w
positions, it didnt count: must look at totality of situation)
Involvement of Decision maker in Earlier Stage of Process
Usually where decision maker has heard matter originally that is being re-heard under appeal or
judicial review, or has been involved in investigation and decision to proceed with the matter
being heard. (National Energy Board)
e) Attitudinal / Pre-Judgement
As strong views on a relevant or irrelevant issue.
-are the views interfering with the adjudicative process,
Newfoundland Telephone- Wells made public comments the pay packages were ludicrous. After
hearing began he kept making these comments. NT argued this creates a reasonable
apprehension of bias. HELD- he had a Closed Mind to the issue, this applies during the
investigatory stage and to a higher standard once hearing begins.
Remedy- comes from Cardinal the decision will be void, denial of a fair hearing die to RAB.
Statutory Authorisation of Bias (overlapping roles)
- most common responses to an allegation of bias by reason of prior involvement is stat auth
Brosseau: if certain degree of overlap of functions of administrative body is authorized by statute,
to the extent that it is authorized there will generally be no reasonable apprehension of bias.
EA Manning: Dual roles are not sufficient evidence of bias. In such a case, advance information
about a complainant is not bias, but prejudgment is unless permitted by statute.
Doctrine of necessity: may require members to hear matter even though they may be biased
Qubec Inc. v. Quebec: bias analysis considers the nature of the dispute, the other duties of the
agency & the overall operational context.
Held: The lack of separation of roles in the circumstances violates natural justice. This is based
on the nature of the dispute to be decided, the other duties of the agency and the operational
context as a whole.
Apluralityoffunctionsinasingleadministrativeagencyisnotnecessarilyproblematicbutit
mustnotresultinexcessivelycloserelationsamongthoseinvolvedindifferentstagesofthe
process.
Thefactthatlawyersmakesubmissionstodirectorswhohavenolegaltrainingandthenadvise
theminrespectofthesamematterraisesareasonableapprehensionofbias.
ItisequallyproblematicthattheChairmancaninitiateaninvestigation,decidetoholdahearing,
constitutethepanelthatistohearthecase,andincludehimselfonthatpanel.

-The reasonably informed person test is appropriate for independence & impartiality.
-Independence deals with the structure of the tribunal & its relationship to other bodies;

-Impartiality deals with attitude towards the parties & issues. More independence is required
for more adjudicative tribunals.
- Impartiality does not require an empty mind the decision maker may consider policies &
guidelines that should legitimately bind them (this is an example of guidelines as delegated
legislation legally binding. Other guidelines are merely suggestions, and statutes or rules
prevail. Applying a discretionary guideline without regard for the merits of the individual case
fetters discretion & breaches fairness).

Bell Canada v. CTEA : > 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.
Bell alleged that the Tribunals 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.
Held: Independence pertains to the tribunals structure and its relationship to other entities.
Impartiality pertains to the tribunals thoughts regarding the issues and parties towards it. While
impartiality is a yes or no question, while independence is much more flexible. On the one hand,
the tribunal is adjudicative. On the other, it is implementing a government policy of rectifying
discrimination. The power to extend appointments fails the reasonable person test on both
grounds, per Valente (judges will see a matter through to its conclusion, regardless of term
limits). Also, how would deciding a certain way affect the HRT Chairmans decision? The
HRCs involvement in the case, including its guidelines, do not affect impartiality or
independence, as the guidelines are merely part of the law that governs the tribunal. They are
necessary to fulfill the policy objective of the Tribunal, and are permissible as long as they are
not so determinative as to prejudge the case. Neither issue challenges procedural fairness,
constitutional principles or quasi-constitutional principles (s. 2(e) of the Bill of Rights [the Bill
takes primacy over federal legislation, requiring a standard of fundamental justice despite
legislation to the contrary]).

LACKOFINDEPENDENCE

Independence refers to particularly the relationship of administrative agencies and government. Is

a risk that bc govt through legislation affects administrative bodies, admin bodies will adjudicate
under influence of govt and not independently. However, mere expression of governments
intentions toward an admin body will not give rise to lack of independence finding Sethi.
-Consider: would a right minded person conclude members of admin body would lack
independence in making decision Sethi (ie. reasonable apprehension test)
Charter and Bill of Rights application
Where legislative intent against independence is clear, a constitutional or quasi constitutional
argument can be made. Challenges to independence can occur under s.2(f) of the Bill of Rights
and s.11(d) of the Charter for lack of independent and impartial tribunal. S. 11(d) only applies
to criminal cases while the Bill of Rights only applies to federal tribunals, but the definitions in
these cases have spilled over into the administrative law sphere.
Canadian Pacific v. Matsqui regimes to challenge initial assessements re Indian taxes. Only
one level of appeal before Fed Court hears it. Indians were eligible appointees, didnt have to be
paid and had no tenure. Companies fought this > SCC basically had split ruling. The statutory

intent regarding independence is vital. Independence is based on the relationship, as determined

by certain objective factors from Valente: (1) security of tenure, (2) financial security and (3)
institutional independence apply to administrative tribunals who adjudicate.
Different degrees of independence are necessary in different contexts (adjudicative v. policy,
holding hearings, etc.)
Consider:
-nature of tribunal
-interests at stake
-other indices of independence
Statutory Authorization
Ocean Port (2001): statute can specifically authorize certain admin bodies so that one cannot
claim lack of independence even if violated. In this instance would have to rely on
Constitutional breach.

CH 12: THE USE AND MISUSE OF DISCRETION

Does the decision maker have discretion?

Does the statute use the word may?
Are there a range of options the decision maker can chose from?
Does the statute refer to opinion, or the public interest?
Abuse of Discretion as Grounds for Judicial Review
The forms of abuse of discretion are:
i) bad faith
ii) not taking into account relevant consideration or
iii) taking into account irrelevant considerations
iv) improper purposes
Roncarelli v Duplessis > where the statute appeared to grant a discretion but yet the SCC
intervened because Duplessis cancelled liquor licence just because he did not like him. He
abused his discretion

Irrelevant Considerations:
a tribunal that is given discretion to decide what matters are relevant does not act ultra vires in
exercising this discretion contrary to the beliefs of the court, however the court will intervene and
grant appropriate remedy when this is the case (Re Sheehan was an inmate, there was riot and
he was injured applied for compensation. Statue said the board could make an order in its
discretion, based on what it consider relevant.
The Board denied compensation said he been convicted of a crime before assaults, and didnt
bring a action against Govt body for comp. Court Held these factor were not relevant BUT on
appeal HELD court wont intervene unless considerations are clearly irrelevant and made in
Bad Faith.
Failure to take into Account Relevant Considerations
An exercise of discretion will be ultra vires only if agency has overlooked a factor that its
enabling statute expressly or impliedly obliged it to consider. (CUPE: ministers discretion to
appoint arbitrators and he appointed past judges > Minister expressly excluded relevant
factors legislation said to take into account > in the opinion of the Minister > did not consider

expertise in (labour relations) which were central to the statutory purpose and so the failure to
consider them was unreasonable)
Improper Purpose:
What is the purpose of the act and the consideration leading to the decision. Shell Canada
Roncarelli he was a restaurant owner, he took profits to post bail for Jehovahs Witnesses. The
premier instructed the Liquor commissioner to revoke his license. Discretion not exercise for a
legitimate purpose, and took into account Irrelevant considerations
Suresh ministerial discretion to deport someone who was a danger to security of Canada even
when there was a possibility that person LL&SP was in danger > -Court gave deference to
Minister b/c legislation made it his decision
Multiple purposes/considerations: where multiple purposes/considerations exist, decision is
ultra vires only where any of those are dominant in outcome of decision
Discretion and the Charter, Underlying Principles of the Constitution, and International
Law
Slaight v Davidson (1989): Need to consider whether use of discretion results in Charter breach,
and if so whether breach justified under s.1. In deciding what is reasonable and demonstrably
justified, Canada's international treaty obligations are relevant.
Chamberlain v Surrey School District > local school board could not impose its religious values
by refusing to permit the use of books that sought to promote tolerance of same-sex relationships.
Lalonde v Ontario > A tribunal must take unwritten constitutional principles into account when
making discretionary decisions.
If international conventions can be considered in interpreting enabling statute (Slaight, Baker),
then so should the Canadian constitution.
Delegated Legislation
delegatedlegislationsubjecttojudicialreviewongroundsofultravires

Considerreviewabilityofdelegatedlegislationmadeby:
1)GovernororLieutenantGovernorinCouncil(generallynotreviewableunlessdonthave
jurisdiction,orotherseverecircs)(ThornesHardware)

Minister/independentagencies(somewhatreviewableoflegislaturestodelegateindividual
ministersandindependentadminagenciestheauthoritytolegislate)(CoxvCollegeof
OptometristscantheCollege,undertheHealthDiciplinesAct,disciplineindividualdoctors?>
)

-Municipal By-laws (courts not hesitant to review delegated legislation passed by municipalities,
generally in the form of by-laws)
-also note additional by-law grounds of unreasonableness, discrimination and oppression,
lack of jurisdiction, abuse of power, serious illegalities (Port Louis didnt give notice re tax
increase, Shell Canada Vancouver concedes that the Resolutions discriminate aginst Shell, the
issue is whether the discrimination was justified under Vancouver Charter > they are not and
therefore ultra vires)

Unreviewable Discretionary Powers?

Prerogatives
aresometimesreviewable:courtmoreinterestedinnatureofpowerthanitssource(ie.whether
legislative)
if decision maker makes decisions that alters individuals rights or deprives them of some
benefit/advantage,thenjudiciallyreviewable(CouncilofCivilServiceUnions)
decisionmakermustbeempoweredbypubliclaw

PublicInterestImmunity&GovernmentFunding
notreviewablebycourtwhenPIIorgovtfundingclaimed:unlessfraudorextremecircs
evenCharterargumentsshutdown

PreclusiveClausesandAbuseofDiscretion
preclusiveclausescanpreventjudicialreviewabilityofclaimsofpublicinterestimmunity
couldpotentiallybebreachofConstitutionbyoustingjudicialreviewofdiscretionarypowers

PrivatePowersofPublicAuthorities
notyetcleartowhatextentjudicialreviewofgovernmentbodiesengaginginprivatetransaction
applies>argumentsonbothsides(pg1051)

If there is a guideline, does it effectively remove the discretion? (Fettering)

- A decision-maker that has been given discretion cannot fetter that discretion. It cannot limit
or remove its own discretion Discretion can only be limited by the entity that conferred the
power, the legislature.
- Fettering is problematic because discretion is presumable conferred for a purpose. Fettering
implies interference with that purpose.
- Fettering of discretion is an issue of PF. The process is either fair or it is not (or it attracts a
correctness standard of review).
- If the tribunal has fettered its discretion, a court will intervene and there is no room for
deference.
The decision maker can use:
- Guidelines,
- Checklists,
- Reference to previous cases, etc.
How do we distinguish between permissible guidelines and impermissible fettering of
discretion?
- Language of the guidelines (mandatory or suggestive)
- Evidence of how the Guidelines are used in practice (whether tribunal members are pressured
or required to follow them or whether they treat them as binding rules rather than mere
guidelines.)
Thamotharem v. Canada: Issue was whether Guidelines on the order of question of refugee
claimants compromised the independence of the Board.The Court found that the Guidelines were

authorized by law (delegated legislation or soft law).The legislature that conferred the discretion
could lawful limit it via authorized Guidelines.
When is a guideline an improper fetter of discretion?
- Is the language mandatory or permissive?
- Does it allow for exceptions (even if only in exception circumstances?).
- In practice, is the Guideline applied as a mandatory directive

SUBSTANTIVEANALYSIS

CH 9: THE STANDARD OF REVIEW

STEP 1: JR Application re: procedural issue
Does duty of PF apply? CH4
If so, has duty been met (content of PF) CH5
If not, quash all or nothing approach
STEP 2: JR Application re: substantive issue
- review merits or substance of decision according to appropriate standard of review
- based on what SOR is selected (correctness or reasonableness) the court will either give
deference to the tribunal or give no deference
History -Analysis was called the pragmatic and functional test and there were 3 standards of review
Correctness, Reasonableness Simplicitor, and Patently Unreasonable (Southam).
-pragmatic approach focuses on legislative intention > why did the legislature give them this
power?
-this will allow us to figure out if its in the tribunals jurisdiction or not
- CUPE > SCC gave a clear warning to courts not to label something a jurisdictional question to
be reviewed the court should take a deferential approach
Dunsmuir He was fired with 4mths pay with out cause. His grevience was denied for PF and
lack of notice. Arbitrator held denied PF and in effect reinstated him
In JR the test renamed the Standard of Review Analysis. And made only 2 standards
Correctness and Reasonableness.
Correctness the court will not show deference (respect court shows to DM authority) to the
DM reasoning process. Court will conducts its own analysis to determine if agrees with DM. If
not court substitutes own view and the correct answer.
Reasonableness - Court analysis the qualities that make the decision reasonable. The Court
considers
a) Justification, transparency, or the DM process,
b) Does the Decision fall with in a range of possible acceptable outcomes based on the law and
facts.
STEP 1
(Dunsmuir as 1st set out in Pushpanathan)
1) Determine whether statutorily embedded deference standard exits (eg BC Act, below) if
yes go to leg section

2) If No, see if CL has already decided which standard to be used (eg Dunsmuir deals with
govt contracts)
3) If No, apply Dunsmuir Standard of Review analysis and determine which standard to
use. (below)
IF No STEP 2
Standard of Review Analysis
1) Presence of a Privative Clause
is clause stating the decision of the tribunal is final and not reviewable
suggests that the Legislature wanted the decision made by Tribunal no the courts.
used to avoid delays, expenses, greater deference towards expert DM.
The strength of Privative Clause
No PC = correctnessbut not always (Mossop)
Weak PC = prob correctnessbut could still give them deference (United Brotherhood)
Administrative Tribunals Act (BC)
s58 Standard of Review with Privative Clause
- Contains patently unreasonableness
s58 (1) tribunal must be considered an expert in all matter it has exclusive jurisdiction.
(2) a) decision can only be interfered with if Pat. Unreasonable
b) tribunal did not fairly
c for all other matter not in a-b the standard is Correctness
(3) Decision is Patently Unreasonable if discretion:
a) exercised in bad faith
b) improper purpose
c) based on irrelevant factors
d) fails to take Statutory requirements into consideration
s59 Standard of Review with NO Privative Clause
1) For JR the standard to review a decision is Correctness for all questions except
those regarding exercise of discretion
2) Must not set aside a finding of fact by the tribunal Unless not evidence
supporting it the finding is otherwise unreasonable
3) Court Must NOT set aside a discretionary decision of the tribunal unless it is
Pat. Unreasnable
4) Same as 3) above
Federal Court Act s18.1 see Khosa below for application
May grant relief under subsection (3) if it is satisfied that the federal board, commission or
other tribunal:
(a) acted without jurisdiction, beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or procedure that it was
required by law to observe;
(c) erred in law in making a decision,
(d) based decision on an erroneous finding
(e) acted, or failed to act, by reason of fraud or perjured evidence;
(f) acted in any other way that was contrary to law.

Khosa - with respect to the Federal courts act. The legislation has the power to leg a standard of
review. The act doesnt specify a standard of review. Each section must be assessd according to
CL standards. The language in the statute Must be direct and state with standard.
But the Federal Ct act never set out the standard of review, expressed but in the BC Act it clearly
states Pat. Unreasonable so it will apply (Khosa)
Vic Times Colonist - suggests Pat unresaonablenss interpreted to mean a High level of
deference, because Court cant do anything unless it is a crazy unreasonable decision.
2) The Purpose of the Tribunal According to the Legislation
-Dunsmuir, tribunal was meant to resolve dispute in a timely and cost effective method of
resolving employment disputes, which suggests reasonableness standard
Consider: choice of remedies, policy type decisions, require weighing of interests considerations,
parties called polycentricity
3) The Nature of the Question at Issue
- is the issue one of Law, Fact and law or solely Fact?
a) if factual/policy(ie creditability) - Reasonableness = more deference
b) If law and Fact can not be separated - Reasonableness = more deference
c) Interpreting questions of Law in OWN statute - Reasonableness
d) Constitutional questions (s96, federal jurisdiction, delegation- Correctness =less deference
e) Any jurisdictional question Correctness
f) Questions of General Law (interpretation of other statutes, bound byfindings of fact)
Correctness
4) The Expertise of the Tribunal
Greater deference where the decision making body has more expertise than the courts.
- ask if issue is highly specialized in nature
Consider:
Pushpanathan
1) the court assesses the expertise of the tribunal
2) the court considers its own expertise relative to the tribunals
3) Relevance of issue to expertise process of appointing members to tribunal, necessary
qualifications

Can you Determine the

Standard From CL (go back to #two from step 1)
Dunsmuir- there was privative clause, arbitrator was interpreting his own statute, leg purpose to
timely/binding system to resolve disputes. The nature of the legal question was outside the
expertise of arbitrator. Standard of reasonableness.
-It was though found that his interpretation of the Statute was unreasonable and
outside the range of acceptable outcomes
Khosa Immigrant who killed lady in driving accident. Held that after his sentence he was to be
sent back to India. Standard was found to be reasonableness applied the 4 factors from
Pushpanthan
Ask: is the decision in the reasonable range

Proprio Direct - real estate agent required fees and no sale took place. Breached real estate
agent act. Tribunal was interpreting own act so Reasonableness
Lake - Ministers decision to extradite person to US for Drug offence. Involved mostly Policy,
and extreme end of Admin decision making. Minister had to consider law and statute and the
Charter. If the correct legal test was applied by the minister, if so assessed on Reasonableness.
Here it was done ok and decision was held to be within range of possible reasonable
outcomes.
Segmentation > Where a single decision is challenged on multiple grounds. Applies to: (1)
Jurisdictional issues, or (2) Constitutional questions. Both of which are reviewed on a standard of
correctness.
Segmentation has been viewed and disputed as being a tool that the judges can use to interfere or
get around legislation intention to confer legislation on tribunal and not on the courts.
Step 1: Look to Levis and Via Rail. Compare those cases to the situation at hand.
Case 1:
Levis (City) v Fraternite des policiers de Levis Inc: question of whether police officer should be
dismissed or not. Two applicable statutesCity and Town Act said ppl convicted must be
dismissed VS Police Act said there was discretion to dismiss or not.
Arbitrator said Police Act overrode City and Town Act and that discretion applied thus allowed to
keep job.
ISSUE: question of whether it was possible to divide the application of the statute in terms of
which statute governed, which provision applied.
- SCC HELD: multiple standards of review should be adopted when there are clearly defined
questions that engage different concernshowever different standards should only be used
where there are clear distinctions btw the questions. Segmentation should occur only where the
issue is genuinely external and easily differentiated from other issues in the case.
Here, there were 2 separate questions1) relationship btw 2 statutes (correctness); 2)
interpretation and application of Police Act (mixed fact and law- reasonableness)
Danger of segmentation: (Abella J) will lead to more intrusive review of administrative decision
making. Thus, it should ONLY occur where the issue is genuinely external and easily
differentiated from other issues in the case (Levis)

Case 2:
Council of Canadians w Disabilities v Via Rail Canada Inc:
FACTS: Via rail acquired new rail cars; Council of Canadians w Disabilities complained to
Canadian Transportation Agency about lack of accessibility for users w personal wheelchairs.
Agency found undue obstacle and ordered cars to be modified.
MAJORITY HELD: single standard of patent unreasonable applied both questions-- 1) authority
to decide complaint; and 2) whether there was an undue obstacle
Court should be reluctant to separate out areas as jurisdictional or as relating to a
preliminary question
This was consistent w majority in Levis
DISSENT: disagreed and said segmentation was appropriate

Standard of Review for Discretionary Decisions

Dunsmuir the standard of Reasonableness court will consider whether the discretion falls
within a range of possible outcomes.
When the Admin Tribunal Act BC applies the Standard of Review is Patent Unreasonableness
regardless of a Privative Clause

Some Guiding Principles:

(1) Findings of fact: Standard usually reasonableness
(2) Questions of law interpreting tribunals own jurisdiction, standard (almost) always
correctness: Trinity Western University
(3) General questions of law and no expertise: Correctness (Mattel)
(4) Where a privative clause: Standard usually reasonableness, rarely correctness;
(5) Where there is a right of appeal: Standard usually correctness but could be
reasonableness based on other factors
(6) For the exercise of discretion: Standard almost never correctness;
(7) For a constitutional question: Standard always correctness.
(8) For procedural issues: Standard always correctness.
AFTER GOING THROUGH FACTORS YOU WILL MAKE A DETERMINATION AS TO
WHICH STANDARD OF REVIEW TO USE TO REVIEW THE DECISION:
(1) Reasonableness;
Reasonableness standard means deference: respect for legislative choices, expertise of tribunals,
and different roles of courts and administrative tribunals
Ask:
(1) if there was transparency, justification and intelligibility of the Tribunal throughout the
decision-making process;
(2) What would a reasonable person think (significant change). Look to see whether the decision
of the tribunal falls within range of possible, acceptable outcomes which are defensible in respect
of the facts and the law.
Reasonableness Applies to:
(1) Questions of fact,
(2) Discretion and Policy
(3) As well as question where the legal issues cannot be easily separated from the factual issues
(4) If interpreting a home statute and/or closely related statute then reasonableness but this can
be trumped if there is a statutory right of appeal as it pushes us more towards a correctness SOR
(5) A strong privative clause
(6) Expertise
NB: Courts are taking notice of what SCC said in Dunsmuir that one reasonableness SOR does
not invite more intervention by the courts: Coffey v. College of Licenced Practical Nurses of
Manitoba 2008 MBCA 33, leave to appeal to S.C.C. refused:
There is only one reasonableness standard and there is not different levels of deference in that
single standard: Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA
436

(2) Correctness no deference to DM and court will take own analysis of issue and decide if the
decision was correctly or not correctly decided.
- Correctness SOR Applies to:
(1) Question of law of central importance to legal system and outside expertise of decisionmaker;
(2) Question of jurisdiction between two or more tribunals;
(3) Constitutional issues
(4) If outside expertise of DM then certainly correctness
(5) Statutory right of appeal
(6) No Expertise
Canada v. Khosa, [2009]
-legislature with clear intention can set standard of review
- s18.1 Federal Court Act establishes grounds for review, not standards for review
-However, where the legislative language permits, the courts (a) will not interpret grounds of
review as standards of review, (b) will apply Dunsmuir principles

Inconsistency:ASpeciesofPatentUnreasonablenesspg(890915)
Question:Can,inthenameofinconsistency,aCourtquashatribunalsdecisionthatisatodds
withotherdecisionsorjurisprudencedevelopedbythatoranothertribunaleventhoughthe
decisioninquestionisnototherwiseunreasonableorpatentlyunreasonableanddoesnotturnon
anissueofjurisdiction?

Domtar>alackofunanimityisthepricetopayforthedecisionmakingfreedomand
independencegiventothemembersofthesetribunalsandrecognizingtheexistenceofaconflict
indecisionsasanindependentbasisforjudicialreviewwould,inmyopinion,constituteaserious
underminingofthoseprinciples

CH 11: THE JURISDICTION OF TRIBUNALS AND THE CONSTITUTION

The Charter applies to decisions of administrative bodies because the legislature cannot give
statutory power to do something that the legislature itself could not do, that is, violate the
constitution: Slaight Communication
Distinguish between two situations below and choose the appropriate one.
The Constitution can be contravened two ways:
1.
The legislation may be valid, but the particular decision may be unconstitutional.
- If the infringing decision is just one possible outcome of the exercise of discretion, then it is the
administrative decision itself that should be challenged. (Martin/Conway)
2.
The legislation that creates the administrative agency or that confers power on the
agency may be unconstitutional.
- If the legislation expressly confers a power to infringe the Charter, then the statute itself
violates the Charter. (Multani)

SCENARIO 1: Is a party before an administrative tribunal arguing that legislation is

contrary to the constitution?
There is no issue that administrative agencies are expected to consider the Constitution, and
particularly the Charter and make decisions in accordance with it (Slaight Davidson).
Q1:DoesTribunalhaveJurisdictiontoHearConstitutionalMatters?

Paul v. B.C. [2003] (page 915)

A Tribunal has jurisdiction to hear Constitutional matters if its empowering legislation explicitly
or implicitly grants the jurisdiction.
-Administrative tribunals w express or implied jurisdiction to determine Qs of law arising under
a legislative provision presumed to have jurisdiction to decide constitutional validity of that
provision, as this is also a question of law.
(rebuttable presumption)

Q2:IsanAdministrativeDecisionMakeraCourtofCompetentJurisdiciton?
Todetermineifatribunalisconsideredacourtofcompetentjurisdictionandcangivea
remedyunders24(1)youwillneedtoapplythetestfromWebervOntarioHydro:TheTribunal
musthavejurisdictionover:
(1)Theparties,(2)Thesubjectmatter,and
(3)Theremediessought(thisisthecrucialquestion)
CanonlyprovideCharterremediestotheextentthattheyhavejurisdictiontoorderremedies
understatute

S.24(1)Anyonewhoserightsorfreedoms,asguaranteedbythisCharter,havebeeninfringedor
deniedmayapplytoacourtofcompetentjurisdictiontoobtainsuchremedyasthecourt
considersappropriateandjustinthecircumstances.

Q3:CantheTribunalDecidetheConstitutionalityofaProvision?
not looking for express provisions/jurisdiction to decide Constitutional questions > if the
expresslegislationimplicitlyorexplicitlygrantsthetribunaltheabilitytointerpretanddecide
questionsoflaw>thenthereisthepresumptiontheycandecideconstitutionalquestions

Q4: Can the presumption be rebutted by the other party?

- Onus lies with the party challenging jurisdiction. Generally, it may only be rebutted by an
explicit withdrawal of authority, or a clear implication to the same effect. The power to interpret
the law is not one that the legislature confers lightly, and so practical issues, etc., will generally
not be sufficient to rebut. Such an implication should generally arise from the statute itself, rather
than from external considerations.

REMEDIESIfthetribunalhasauthoritytodecideconstitutionalquestion,whatremedy
doesithaveauthoritytogive?NovaScotia(WCB)vMartin:

Eveniftribunalhasauthoritytodecideaconstitutionalquestionatribunalcannotstrike
downthelegislationunders.52:Martin

BUT..Atribunalcanandmustrefusetoapplyanunconstitutionalprovisioninthat
particularcase.Thereforetheywillmaketheirdecisionasiftheprovisiondidnotexist.This
isnotaremedyitisjustrespectingROL.


Onlyacourtcanstrikedownlegislation!
NB:StandardofreviewonJRisalwaysCORRECTNESSforaconstitutionalquestion

Administrative Tribunals Act, S.B.C. 2004, - printed

ss. 43-45
-legislature chooses which of 3 jurisdiction scenarios apply > (1) if the tribunal can refer to
questions of law including Const, (2) Tribunals w/o jurisdic over Consti questions, (3) Tribs with
jurisdic over Charter questions
AdministrativeProceduresandJurisdictionAct,R.S.A.2000,ss.1016
AlbertaActprovidingthatdecisionmakerhasnojurisdictiontodecideconstitutionalissues
unlessgivenpermissiontodosounderregulation

SCENARIO 2: Multani
Step 1: Is a party arguing that their charter rights have been violated? Multani
Here a person will complain about the decision an institution has made and complain directly to
the court.
On JR, is a party alleging that an administrative agencys decision is inconsistent w the Charter?
Direct breach? = use consti principles/ remedies

Example: Multanisee below

Failure to reflect values consistent w Charter? = Use admin analysis

Decision doesnt affect cases where Charter values may be factor, but decision itself
doesnt violate Charter (Chamberlainfreedom of religion and equality were indirectly
involved, but neither directly violated) If this is case, then court considers charter values in
admin law analysis
IF DIRECT BREACH
Here, the Court meets the requirement of being a court of competent jurisdiction and has the
ability to award a remedy.
Step 2: What approach should the court take in deciding if there is a breach of the charter
in an administrative law context?

IfDecisioninfringesCharterRightthenCharterPrinciplesApply
Ifthereisaninfringementbasedonadecisionoftheboardthencharterprinciplesshouldapply
andthedecisionshouldbesubjectedtothetestsetoutins.1toascertainwhetheritconstitutesa
reasonablelimit:Multani

There is a difference in:

1) The analysis
(i) Admin law principleshere we apply the SOR and determine the amount of deference the
court should give the Tribunal
(ii) Charterhere we apply s1 Oakes Test to see if violation is justified
2) The remedy
(i) Admin law principlesleaving the legislation in place and granting a remedy in respect of the
particular decision (ie. to declare decision be null OR order reconsideration)

(ii) Charterstrike down legislation

Step3:Remedies
Ifprovisioncannotbesavedunders1(OakesTest),thentherewillbeabreach.Ifabreachis
established,theTribunal/Courtcanaward[fillinremediesfromdirectlyabove]remedies.

Cases:
Slaight Communications Inc v Davidson: D radio time salesman. Dismissed for cause by Slaight
Communications- alleging his sales were inadequate. Grievance filed under Canada Labour Code.
Arbitrator found D unfairly dismissed and that manager of Slaight had ulterior motive for firing
D.
Arbitrator made 2 orders: 1) S provide D w letter setting out quotas and Ds actual sales
(positive order); 2) S not provide info other than letter in response to questions about Ds
performance (negative order)
S applied for JR of arbitrators decision
HELD: Both orders infringed s2(b) (freedom of expression), but were saved under s1

Oakes test:
1) Importance of objective = allow D to find a new job w/out being lied about by former
employer
2) Rational connection = given D had been subject of vendetta, lengths S had gone to in
attempting to justify firing, preventing any other info being disseminated was rationally
connected to objective
3)
Minimal impairment = positive order (letter) would be worthless if it was
accompanied by allegations about Ds dismissal.
Multani v Commission Scolaire Marguerite- Bourgeoys: M and family were orthodox Sikhs.
Part of religion was wearing kirpan. M was 12 yrs old; accidentally dropped 8 inch kirpan
wearing under clothes at school. School Board (Commission) sent Ms parents a letter saying he
could wear his kirpan to school provided that he complied w certain conditions to ensure it was
sealed in clothing. Family agreed. Governing Board of Ms school refused to agreeargued that
this violated Article 5 of Schools Code of Conduct. Council of Commissioners upheld this
decision.
Ms father sought order under s24(1) that decision of Council of Commissioners was of no force
or effect
SC of Quebec HELD: order made that M could wear kirpan.
Court of Appeal HELD: applied admin law principlesSOR was reasonableness
SCC HELD: decision should be declared null; discussed issue of whether analysis should be
admin or charter.MAJORITY = Charter..HOWEVER
DISSENT:
Deschamps and Abella JJ (used administrative law principles): dont go under Charter, look at
SOR (reas or correctness) and then can consider the legislature wont authorize any of its
agencies to breach Charter.
Noted that Courts have admin law principles in cases involving Charter rightssee
Chamberlin. These principles could be applied here.
LeBel: ONLY USE CHARTER WHEN NECESSARY TO DO SOnot in all casesie
where basis of challenge is a violation of a constitutional right, then you have to engage in
constitutional analysis

Ie. here, they were dealing with freedom of religion

Oakes test can be applied flexibly

CH 13: REMEDIES FOR UNLAWFUL ADMINISTRATIVE ACTION: THEIR SCOPE

AND THEIR LIMITS

GovernmentinConductofBusiness
Purelyprocurement(commercial)dealingsofgovtnotreviewable,butbusinessinvolvement
beyondthatisreviewableandremedythenavailable(Volker).

- If a company has a preferential place in bidding on contracts then an obligations of procedural

fairness applies to any removal of such a designation notwithstanding the fact that the source of
the designation was an executive or prerogative rather than a statutory scheme: Volker

VoluntaryAssociations
arevoluntaryassociationssubjecttoJR,whoareeitherbylawordefacto,controlaccesstoor
opportunitiesinvariousformsofoccupations
thequestioniswhetherthedecidingbodycanbeconsideredatribunalforthepurposesofJR
If voluntary associatingacting adjudicatively, andpublic interest is a concern beyondthose
directlyaffected,thendecisionsmaybereviewableandaremedygranted(RvHalifaxDarmouth
arealestateboardsuspendedSeasidefrommembershipforvariousalledgedbreachesofassoc
rulesandregs)

StatutoryRemedialRegimes
Federal Court Act s18; Judicial Review Procedure Acts (BC, Ontario): create federal and
provincialjudicialreviewrights

JRjurisdictionisdividedbetweentheprovincialsuperiorcourtsandtheFederalCourtofCanada
>thechoiceastowhethertoproceedtowhichCourtwilldependonwhetherthesourceofpower
orauthorityinquestionisFedorprov

canbeconfusionastowhetherprovincialcourthasjurisdictiontojudiciallyreviewmatter:

Mayv.FerndaleInstitution: providesthatprovincialjurisdictionshouldonlybedeclinedby
provincialcourtwhereastatuteconfersjurisdictiononacourtofappealtocorrecterrorsofa
lowercourt,orlegislatorhasputinplacecompleteprocedureforreviewofanadministrative
decision.

MODESOFRELEIF

StatutoryAppeals
mostcommonwayofchallengingadministrativeactionisbythehugevarietyofstatutory
appealsthatexistintheindividualstatutescreatingspecifictribunals,agencies,statpowers,etc

Prerogativewrits:
(1)Certiorari>quashorsetasideadecision(mostcommon)

GeneralRule:ThecourtonJRcannotsubstitutethetribunalsopinion(canonlydosoon
statutoryrightofappeal)
Exception:Unlessstatutesoprovides
WhenusingthisRemedytheCourtMay:
(1)Senditbacktothetribunaltobereheard.

Thisdoesnotpreventthetribunalfrommakingthesamedecisionbutjustdoingiton
legalgrounds:ReLabourRelationsBoard
(2)Sendthedecisiontoanotherpanelthathasjurisdictiontohearthematter.Thisiswherethe
courtwoulduseprohibition.Thismightnotalwaysbepossibleintheadminlawcontext.
(3)Thecourtmayquashthedecisionandsenditbacktothetribunalwithdirectionsifitis
expressedinthestatuteorrulesorinherentjurisdiction

Generaldirectioni.e.complywithrulesofthecourtor

Specificdirectioni.e.notheardbyaspecificindividual
(4)Ifitisaproceduraldefectthenrewindandstartfromthepointfromwherethedefect
occurred.Ifnotproceduralthenthetribunalmustreheartheentireissue.

WhycantthecourtmakeadecisiononJR?
TheauthorityexercisedbytheDMisgivenbystatute.Thecourtcannotstepin.Ifthiswere
allowed,itwouldraiseconcernsaboutinterferencewithlegislativedecisions
(2)Mandamus
Toorderanacttobedone
**OftensoughtinconjunctionwithCertiorari

Mandamusappropriatetoovercometheinactionormisconductofapersonchargedwith
performanceofpublicduties
Thisremedyallowsthecourttoorderanadministrativebodytodosomethingspecific

Theactionthecourtordersmustbe:
(1)onethatapublicperson/bodyhasalegaldutytodoor
(2)theapplicantmusthavealegalrighttohavethedutydone
Thecourtcanonlyordermandamuswhen(mustbearequestandrefusal):
(1)Thetribunalrefusestocomplywithaspecificdutyithasafterbeaskedtocomplyor
(2)Anindividualhasortheapplicantmusthaveaskedfordutytobedoneandbeenrefused

MountSinaiHospitalv.Quebec(MinisterofHealthandSocialServices),[2001]2S.C.R.281

Theministerwhowaspreviouslyinpowerpromisedtoissueapermittothehospital.A
newgovtwaselectedandthenewministerrefusedtoissuethepermitduetomoney
restraintsafterhewasaskedtodosobythecourts.

Thecourtgaveanorderofmandamustoordertheministertoprovidethepermit

(3)Prohibition
(4)Habeascorpustotestlegalityofdetention
(5)Quowarrantotoshowauthorityforaction

Legislation

Legislationinseveraljurisdictionshassimplifiedremediesandproceduresforseeking
them(comparedtotheoldprerogativewrits),buttheremediesaregenerallybasedontheold
prerogativewrits.
Forexample,theFederalCourtcanissuewrits(FederalCourtAct,s.18(1))andmakeavariety
oforders(s.18.1(3)):
s.18.1(3)Onanapplicationforjudicialreview,theFederalCourtmay:
(a)orderafederalboard,commissionorothertribunaltodoanyactorthingithasunlawfully
failedorrefusedtodoorhasunreasonablydelayedindoing;or
(b)declareinvalidorunlawful,orquash,setasideorsetasideandreferbackfordeterminationin
accordancewithsuchdirectionsasitconsiderstobeappropriate,prohibitorrestrain,adecision,
order,actorproceedingofafederalboard,commissionorothertribunal.

Declaration

Thisisapronouncementbythecourtonmattersoflaw,definingtherightsandobligations
ofparties.

Thisremedywillnormallybemadealongwithotherordersbutitmaybegrantedasasole
remedyifnootherremedyisappropriate.

NOTLEGALLYBINDINGbutgenerallyfollowedwhenordered.

CUPE v. Ontario (Minister of Labour)[Retired Judges]: The union asked for the
appointmentsofarbitratorstobesetaside.Thiswasheldtobeinappropriatebecauseissuewas
the appointment procedures generally, rather than the appropriateness of individual
appointments. Some arbitrators might in fact have appropriate qualifications. Thus, the
appropriateremedywasadeclarationthattheMinistermustmakeappointmentsinaccordance
with certain legal requirements such as independence, impartiality, expertise and mutual
acceptability.

MonetaryRemedies(veryrare)

Damagesmaybeawardedunders.24(1)oftheCharter.

Damagesmaybeawardedfortort

OccasionallyawardedinadministrativeJR(ie,ifthereisalegaldutytomakeapayment,
itmaybecompelledinmandamus,orifadismissalisquashed,theofficeholdermaybe
declaredentitledtobackpay.)

"CourtsonJRareabletoawarddamages,butnormallythisneedstobebroughtbya
separateaction(outsideJR)viastatementofclaimprocedure":>>

However,toclaimfordamages,youmustfindaprovisioningovtstatuteallowingityou
cannotjustclaimitoutofthinairmusthavesomelegalauthoritytodoso

Itwillbeappropriatefordamagestobeawardedwhen:Vancouver(City)v.Ward
1)
ThereisaCharterbreach.
2)
Damagesarejustandappropriateinthattheyserveafunctionalpurposeofcompensation
toanindividualforlosssuffered,vindicationbyaffirmingChartervalues,ordeterringfuture
breaches.
3)
No countervailing considerations indicate damages should not be awarded (ie the
availabilityofalternativeremediesfortheCharterbreachorgoodgovernanceconcerns,such
as a claim for damages based on government action authorized by a law since found
unconstitutional).

4)
Incompensation,thequantumofthelossisestablishedbyevidence.

Note:Althoughnormallyrarelyawarded,inthedecisioninVancouvertheSCawardeddamages
forbreachofthecharter,SChassaidthatdamageswillbemorefrequentlybemadeavailable.

InterimandInterlocutoryRelief

Rule:ThisremedyisavailableifauthorizedbystatuteorrulesboththeQBandfedrulesthe
courthasjurisdictiontomakeaninterimorderpendingtheoutcomeoftheapplication

FederalCourtAct,s.18.2:Onanapplicationforjudicialreview,theFederalCourtmaymake
anyinterimordersthatitconsidersappropriatependingthefinaldispositionoftheapplication.

SaskatchewanQueensBenchRules,Rule668(1):Thecourtmaymakesuchinterimordersas
itseesfit,includingorderspreservingthestatusquoorthepositionoftheparties,andmay
extend,modifyorsetasideanysuchorders.

StaysofAdministrativeProceeding

Generalrule:astayofproceedingsisnotautomatic,considerationswillbethesameinprivate
mattersbutmaybeprovidedforin:

FederalCourtAct,s.18.2:Onanapplicationforjudicialreview,theFederalCourtmaymake
anyinterimordersthatitconsidersappropriatependingthefinaldispositionoftheapplication.

SaskatchewanQueensBenchRules668(2):Anapplicationforjudicialreviewshallnot
constituteastayoftheproceedingstowhichtheapplicationrelates,butthecourtmaygrantastay
ofsuchproceedingsonapplicationmadeforthatpurpose.
Procedure:Ifyouwantastayyoumustapplyforitspecificallyandseparately

RequirementsforaStay
(1)Casehasmerit:primafaciecaseoraseriousquestiontobetried

ThelatterafterAmericanCyanamidCo.v.EthiconLtd.,[1975]1AllE.R.504(H.L.)
isgenerallyaccepted
(2)EstablishthatIrreparableharmwillresultifastayisnotgranted

Harmthatcannotbeordifficulttobecompensatedindamages
(3)Balanceofconvenience

balancetheharmthatthePwillsufferiftheinjunctionisnotgrantedagainsttheharm
theDwillsufferifitisgranted

isitgoingtocausemoreharmthangoodtograntastayofproceedings?

Re:balanceofconvenience:usualpresumptioninfavourofmaintenanceofstatus
quo.ThishasnomeritinacaseofanallegedCharterviolation:RJRMacdonaldv
Canada

Testwasusuallyappliedinprivatelawbutthistesthasbeenadaptedtopubliclaw:Manitoba
(AG)vMetropolitanStoresemployersoughtstayoffurtherproceedingsuntilCourtdisposedof
Charterchallenge

Astayofproceedingsandaninterlocutoryinjunctionareremediesofthesamenature.Same
principlesapplytointerimstaysasforinteriminjunctions:Manitoba(AG)vMetropolitan
Stores

BROTHERHOODOFMAINTENANCEOFWAYEMPLOYEESv.CANADIANPACIFIC
LTD.(1996)
Question:Isitpossibleforthepartytoapplytothecourtandhavethemstepinduringatribunal
hearingtograntaninjunction?

GeneralRule:Thecourthasaresidualdiscretionarypowertostepinandorderan
interlocutoryinjunction,evenwherethecourtdoesnototherwisehavejurisdictionoverthe
matter,wherethestatuteofthetribunaldoesntprovideforaninjunctiontobemadebythe
decisionmakerofthattribunal

Answer:ThecourtsaidYES,providedcertainconditionsaremet

Themostimportantconditionisthatthestatutedidnotprovideforaninjunctiontobe
givenbythedecisionmakerofthetribunal.

Ifthearbitratorcouldhaveissuedaninjunctionandchosenottoyoucantgotothe
courtinthealternative.

CH 14: STANDING

Thereare3TypesofStanding:

(1)PersonalInterest
Step1
Inordertohavepersonalstandingonemustbe:
(i)bedirectlyaffected:FederalCourtAct,s.18.1(1)or
(ii)haveasufficientinterest:SaskatchewanQueensBenchRulesR665(1)

S. 18.1(1) Application for JR An application for JR may be made by the AG of Canada or by

anyone directly affected by the matter in respect of which relief is sought.

Step2
WhocanbringanapplicationforJR?
Inmostcases,itwillbeobvious.Ifyouwereapartybeforethetribunalorifthedecisionaffects
youpersonally.TheseindividualsorpartieswillhavestandingtoseekJR
E.g.:Hartwigv.SaskatoonPoliceAssn.,2007SKCA74wherethePoliceAssociation,
havingparticipatedinthejudicialinquirythatwasbeingchallenged,washeldtohave
standingonjudicialreview

TheGeneralTesttoseeifanindividualhasstandingbasedonpersonalinterestisasfollows
(Finley):
(1)Apersonmustshowaninterferencewithaprivateright,specialdamage,or
exceptionalprejudicethatisnotsufferedbyothersofthepopulation.Inotherwordsa
sufficientnexus;or
(2)Directcausalrelationshipbetweentheinjuryandtheactionbeingchallenged.It
cannotberemoteofspeculative.
E.g.MrFinleycouldntgetpastthiscondition.Hehasaninterestbuttherelationship
wastooremoteandindirect.

(2)PublicInterestStanding
Publicintereststandingisamatterofdiscretionforthecourt:Finlayv.Canada(Ministerof
Finance)(1986)S.C.C

Step1
FinleysetsoutCriteriathatmustbemetinordertogetpublicstanding:

(1)Justiciability(propermattertobedeterminedbythecourtsasopposedtopolicymatterswhich
arebestlefttolegislatureorexecutivetodecide);

(2)Seriousissueraised;

(3)Individualhasgenuineinterestinissue(notamerebusybody);

(4)Nootherreasonableoreffectivemannerinwhichissuemaybebroughtbeforecourt

**OnlyFactor(2)(3)(4)Needtobemet
**shoulduseaslastresort.Betterofffindingsomeonewhoisdirectlyaffected.

CASEEXAMPLE
AMNESTYINTERNATIONALCANADAv.CANADA(CANADIANFORCES),2007FC
1147
MadeanapplicationforJRandwantedpublicstanding.Thecourtlookedatall4factorsand
determinedthatthethreethatneedtobemetweresatisfied.

Publicintereststandinggranted:
(1)seriouslegalissue(fairlyarguablecaseorreasonablecauseofaction);
(2)Applicantsclearlyhavegenuineinterest
(3)Noothermeansforaddressingissuebecausepossibilityofanactionbyanaffectedperson
wasobviouslynotarealisticalternativeunderthecircumstances(theyweredetained).
*Evenifyouaregrantedstandingitdoesnotmeanyouwillwinthecaseorgetaremedy.
Youjusthavearighttobeheard.

(3)StandingofAdministrativeAgency/Tribunal
Traditionally,tribunalordinarilydoesnothavestandingonjudicialreviewbecause:
(1)thetribunalshouldnothaveanopportunitytodefenditsreasoning

(2)thereasonsshouldhavesetoutthebasisofthedecisiontheyshouldnotbeableto
addmore
Exception:Wherethejurisdictionoftribunalisatissuethetribunalcanappearbeforethecourt
todefenditsjurisdiction.

Children's Lawyer for Ontario v. Goodis: The Court found that the appropriate scope for
standing will depend on the circumstances of the case, considering: Whether the tribunals
submissionsarenecessaryforthemattertobefullyarguedandappropriatelydecidedbythe
reviewingcourt.Thetribunalshouldmaintaintheappearanceofneutrality.Also,thenatureofthe
question an allegation of unfair treatment of a particular litigant v. an allegation that the
institutionaldecisionmakingprocessisunfair.

Watson v Catney: C delegated power to hearing officer. W (affected Police Officer) applied for
stay of proceedings from hearing officer. Chief of Police (c) unhappy about this and wanted
disciplinary proceedings resolved. C applied for JR.
HELD: C had standing, but then lost in Court of Appeal because there was no right of appeal
under statute. Since C appointed hearing officer and delegated authority to him, he would
effectively be seeking review of his own decision = not permitted
Case example where Tribunal member HAD standing:
Real Estate Council of Alberta v Henderson: H real estate broker; complaints brought against
him. Exec Director of Real Estate Council referred matter to hearing panel and acted as
prosecutor.
ISSUE: could Exec Director prosecute H personally? NO.
H convicted of 3 complaints, but acquitted on others. Exec Director sought JR on the acquittals.
Exec Director had standingalthough ED was part of Real Estate Council, ECs role under
statute was distinct and ED was seeking review, NOT of own decision, but of Panels decision
(separate entities)

Ontario Childrens Lawyer v Ontario Info and Privacy Comm>In the proceedings resulting in
this appeal, the Childrens Lawyer for Ontario sought judicial review of the decision of the
Information and Privacy Commissioner who ordered the Childrens Lawyer to disclose certain
documents in her possession. > the Childrens Lawyer now appeals, challenging the role that the
Commissioner was permitted to play in the Divisional Court. Issue: the scope of standing to be
accorded by the court to an administrative tribunal whose decision is attacked by way of judicial
review. Held > see exception above > they needed to hear important information from them

CASEEXAMPLES
Watsonv.Catney,2007ONCA41:
ThePolicechiefappointedhearingofficer.ThehearingofficergrantedWatson'smotionand
stayedthedisciplineproceedings.TheChiefappliedforjudicialreview.Couldhedothis?>
CourtheldthattheChiefcouldnothavepublicstandingbecausehewasdirectlylinkedtothe
DMasheappointedhim.Itwouldbelikethetribunalapplyingforstanding.
TograntJRwoulderodepublicconfidenceandlessenthefairnessofthedisciplineprocess.
Cantappointsomeonethenappealadecisionhedoesnotlike.

RealEstateCouncilofAlbertav.Henderson,2007ABCA303:>TheExecutiveDirector
soughtjudicialreviewonthebasisthatthehearingpanel'srefusaltopermitcrossexamination
wasanerroroflawandarguedthattheacquittalsshouldbesetaside.

ThelegislativeregimeundertheRealEstateActprovidedforindependencebetweenthehearing
panelandtheExecutiveDirectoroftheCouncil.Therefore,theExecutiveDirectorwas
sufficientlyseparatefromhearingpanelandcouldhavestanding(CouncilandHearingpanel
sufficientlyseparate).TheExecutiveDirectorhadstandingtobringtheapplicationforjudicial
review.ExecutiveDirectorwasdirectlyaffectedbythedecisionofthehearingpanelandfell
withinthecategoryofanaggrievedperson.

ROLEOFATTORNEYGENERALANDSTANDING
Canbecomeinvolvedasapartiesrequiresorontheirownmotion
Maychallengeadecisionthepartiesarehappy(anddonotwishtochallenge)withbutcanseek
judicialreviewofanadministrativedecisionasamatterofpublicinterest
where:(1)ingeneralpublicinterest,(2)whereAGsinterestaffected

INTERVENORORAMICUSCURIAE

ANDSTANDING

Thisiswhensomeoneisappointedbythecourttorepresentapartyorinterestthat
wouldnotbeheard.

Thisisanappointmentbythecourtratherthananapplicationbyanintervenerto
participateinJR

Allowedatcourtsdiscretion

Test:thecourtmustaskiftheywilltheyaddanythingnew,representinterestnototherwise
represented

Usuallynotpermittedtoexpandcase(limitsonintroducingevidenceorargumentspossible)

CH 15: THE DISCRETION OF COURT

Variety of devices that the courts have used in the control of access to a determination on
the merits of JR application >
(1) Matter is private, not public,
(2) Issue is not judiciable or otherwise not reviewable,
(3) There has been no final decision by stat authority,
(4) Applicant lacks standing

Courtsalsohaveanoverridingdiscretiontodenyreliefmostcommongrounds(below)>
totheextentthatmostofthesebasesforthedenialofreliefarerootedinconcernsforthe
integrityandthefunctioningoftheadministrativeprocess

Just because a remedy is generally available does not mean that a court will necessarily
award it.
The court has a discretion whether to award a particular remedy or whether to award any
remedy at all. Therefore even where a party is successful on the merits, there may be no
remedy awarded. (see ie Homex)
In the case of a failure to accord PF, however, this will almost always result in quashing of
the decision.

The court may decline to interfere if:

1)
The applicant has not exhausted other routes of appeal (ie if the agency has an
internal appeal process)
Rule: A person must first use all remedies available to them before they apply for JR. It is a
remedy of last resort: Canada v Addison & Leyen
If there are other means to have your appeal heard i.e. internal appeal mechanism or
statutory right of appeal you have to use it before the court will step in for JR.
A matter of discretion but likely courts will deny a remedy if you do not exhaust all
available avenues first
A court may refuse to hear an application for JR if the applicant has failed to use all
available routes of appeal within the administrative system.
The court may also refuse to hear the application if there is a statutory right of appeal to
the courts that has not been utilized.
This may also be the case if the applicant had a right of appeal, but missed the limitation
period, or if they were unsuccessful on appeal.
A court may also refuse to hear an application for judicial review that is made concurrent
with an appeal. (An appeal and judicial review cannot be joined.)
Canada v. Addison & Leyen Ltd: The company received notices of tax assessment. It filed
objections, but did not appeal to the Tax Court. The company brought an application for JR of the
Ministers assessment decision. The Crown applied to have the application struck, and was
successful. HELD: Although the Federal Court had the jurisdiction to review the Ministers
decision, but declined to do so as the company had not used the regular appeal process. JR is the
remedy of last resort.
Okwuobi v. Lester B. Pearson School Board: Several parents were seeking English language
educations for their children in Quebec, and challenged the provisions of the Charter of the
French Language requiring that most children in Quebec be educated in French. The
Administrative Tribunal of Quebec had authority to decide questions of law, and therefore
constitutional questions. HELD: the parents could not bring their application in the courts until
they had exhausted their remedies in the ATQ.
Gates v. Canada (Attorney General): Inmates returning to Matsqui Institution on parole
violations are housed in the Temporary Detention Unit. Applied for an injunction directing the
institution to maintain the unit at a minimum temperature of 20 degrees overnight. The
temperature in the Unit could potentially affect the health of inmates and was therefore urgent.
Thus, the application was considered and the order was granted. This is an exception to the
general rule that judicial review will not be heard where an alternative process is available but has
not been utilized.
2)
-

The application is a collateral attack on an order.

A decision should not be challenged in separate proceedings if it could have been
challenged directly
A person is not to attack/undermine a previous decision of a tribunal in a separate
proceeding when that person had an opportunity to challenge it directly: Wilson v. The
Queen
This rule is not limited to administrative proceedings. Examples: An order is challenged
when proceedings are taken against you, rather than when the order was made.
A court has the discretion not to hear the matter or to deny a remedy if the proceeding
amounts to a collateral attack.


(MaybrunMines)
(GarlandvConsumerGasthatthisactiondoesnotconstituteanimpermissiblecollateral
attackontheOEBsorder.>wherethepartyisattemptingtochallengethevalidityofa
bindingorderinthewrongforum,inthesensethatthevalidityoftheordercomesintoquestion
inseparateproceedingswhenthatpartyhasnotusedthedirectattackproceduresthatwereopen
toit(i.e.,appealorjudicialreview
>collateralattackcasesallinvolveaparty,boundbyanorder,seekingtoavoidtheeffectof
thatorderbychallengingitsvalidityinthewrongforum.Inthiscase,theappellantisnotbound
bytheBoardsorders,thereforetherationalebehindtheruleisnotinvoked.>topreventa
partyfromcircumventingtheeffectofadecisionrenderedagainstit.>
3)
-

The application is premature.

An application for JR challenging an element of the decision or process should not be
brought until the final decision has been made.
Air Canada v. Lorenz: AC challenged the adjudicator in an unjust dismissal case for bias prior to
a final decision being made. The court noted that relief should only be allowed in exceptional
cases, considering various factors including the strength of the case, waste of resources, delay,
and fragmentation of litigation. In this case, the adjudication of the unfair dismissal was stayed
for almost two years before the JR application was dismissed.
4)
-

The applicant has delayed bringing the application.

If a limitation period for filing a JR application passes, it may be a complete bar to
proceeding.
The statute or rules of court may allow the court to extend the time limits.
Even if there is no applicable limitation period, if the applicant has delayed bringing the
application, the court may decline to grant relief.
Result may depend on prejudice to other persons who have relied on the challenged
decision.
Friends of the Oldman River Society v. Canada (Minister of Transport): the Society challenged
a decision to approve construction of a dam. By the time the challenge was made, the
construction company had completed 40% of the work. However, the Society showed ongoing
legal efforts had been made to challenge the decision, so the delay argument was not successful in
that case.
5)
-

The issue is moot.

Where the dispute has no practical significance for the applicant. The relevant time is the
time of the decision, not the time the application is commenced. Borowski v. Attorney
General
Remember that the court may choose to hear the case. The court may exercise discretion
where, for example.
o
Important issues are at stake.
o
Similar situations may reoccur or the conduct complained of is systemic.
o
There are other proceedings in which the legal issue is significant.
Examples:
For three of the four applicants in May v. Ferndale, they were no longer in medium
security by the time the matter reached the Supreme Court of Canada.
Ontario (Childrens Lawyer) v. Goodis: Jane Doe had ceased to participate in the
proceedings by the time the matter reached the Court of Appeal.
V.M. v. BC: Jehovahs witness family with sextuplets. The blood transfusions had been
completed and the children returned to their parents custody.

6)

The applicant has committed misconduct:

Courtcandenyaremedyifapplicanthasactedunreasonablycometocourtwithclean
hands

Homex Realty: The SCC found Homex had a right to be heard prior to passage of the bylaw.
Homex used a device called checker boarding to avoid municipal regulations. This was legal,
but could be considered as a factor. Homex was seeking to avoid the consequences of an
agreement the previous owner of the lands had made with the town regarding the cost of
servicing the lots. Therefore the court declined to quash the bylaw.
7)

The applicant has waived rights.

Failure to object (ie to bias) when the applicant becomes aware of the defect may be taken
as acquiescence.
Underlying policy considerations: Parties should not wait to see if the decision is in their
favour before raising concerns. The agency should be given the opportunity to rectify any
problems if possible