Case Summaries – Administrative Law

Authorson

May v Ferndale Institution

-Transfer of prisoners = not criminal matter – but adminsitrative decision
-inmates serving life sentences – transferred to med security from min security instit. based
on computerized reclassicifaction scale. Not given matrix which provided what weight given to
what factors in making the determination. Scale basically made decision, takes a lot to
override its recommendation.
-result : transfer decisions declared null and void for want of jurisdiction.
-habeas corpus jurisdiction should NOT be declined merely because there is an altern
remedy
-Prov Sup Courts should decline Habeas Corpus jurisdiction ONLY if :
1. statute, s.a. Crim Code confers jurisd on a court of appeal to correct the errors of a
lower court and release the applicant if need be, or
2. legislator has placed complete comprehensive and expert procedure for review of an
administrative decision (eg Parlt's Immigration scheme)

Court of Appeal had barred habeas corpus = error because:

1. these cases involve administrative decisions in the prison context, not criminal
convictions.
2. There is no scheme by parlt for complete, comprehensive and expert procedure for
review of a decision affecting inmates' confinements.

Concurrent jurisdiction approach:

To afford inmates meaningful and significant access to justice in order to protect their libertty
rights. Timely judicial oversight, in which Prov courts play concurrent if not predominant role.
The rule of laws must continue to apply withinn penitentiary walls.

Arbitrariness not a basis for Hab corp in this case- Transfer decision initiated by mere change
in policy = not arbitrary
-inmate had failed to complete vio offender program
Hab corp avail because – CSC failed to disclose scoring matrix for computerized security
rating tool = deprivation of residual liberty of the inmates.
-PF generally requires that the decision maker disclose the information relied on. The
individual must know the case he has to meet.
-Failure to provide sufft info = renders decision VOID for lack of jurisdiction.

-It was not enough for the inmates to know what factors but also entitled to know the weight
given to each factor.
-CSC concealed crucial info (not forthright about availability of scoring matrix) this = violation
of statutory duty of disclosure therefore transfer decision made improperly.

-the Stinchcombe principles do not apply in the administrative context.

-reqts of PF assessed in context:
Step 1. Determine applicable statutory duty of disclosure:
-Duty of PF on every public authority maing admin decisions that affect rights, priileges and
interests of an individual: Nicholson, Cardinal, and Baker.
 CCRA has disclosure reqts which reflect and bolster those privileges. The Regs under that
Act also by providing right of info on emregency transfers adds to the duties imposed on
institns.
Finally Policy Directives req that the offender be in a position to be able to respond to
recommedation for an involuntary transfer, and how to meet that standard.
-Court concluded the applicable statutory duty of disclosure for transfer decisions is
substantial and extensive.
Step 2. Consider whether the applicable statutory duty of disclosure was met:
(If the answer is no, then the transfer decision was unlawful.)
-Court considered:
● legislative scheme,
● nature of the undisclosed info, and
● importance of the decision for the appellants

and concluded there was a clear breach of the stat duty “to disclose all the inforation to
be considered in the taking of the decision or a sumary of that information”.
-appellants acted diligently in their request for the info.
-override of the computeried classification was not normally relied upon and required detailed
justification – therefore court did not accept that those scores were “simply a preliminary
assessment tool”. Court also took note that override was not used in this case suggesting the
scores fixed the decision.
-availablity of the info requested (scorig matrix) + importance of that info to the
decision = should have been disclosed.
-major breach of duty to disclose inherent in procedural fairness. = transfers made improperly,
null and void for want of jurisdiction and = therefore appellants unlawfully deprived of their
(“residual”) liberty.

Charkoui v Canada (Citizenship and Immigration)

Under the IRPA Min of Cit and Min of Public Safety auth to issue certif declaring foreign
national or perm resid is inadmissible to Can. on grounds of security etc. and those persons
are then detained.
-certif and detention reviewable by Fed Crt. - procedures may deprive them of some or all info
that forms the basis of the certif/detention
-perm resid: detention optional and must be reviewed w/in 48 hrs
-forn natl: detention automatic and NOT reviewable for 120 days after judge determines
certificate is reasonable. (that determination is not reviewable).
-if found to be reasonable, certificate becomes removal order which cannot be reviewed and
and may be enforced immediately.
C = perm resident; H and A = foreign nationals recog as covetion refugees. all living in
Canada at the time. Arrested for involvement in terrorist activities.

(1) Procedure for determining reasonableness and for review of detention

SCC: found procedures under IRPA for determining reasonableness of certif and for detention
infringed s7 of the Charter.
-s7 engaged because: of possible detention and possible removal to a place where their life
or freedom would be threatened.
-also inconsist with fundamental principles of justice – procedures fail to ensure the fair
hearing reqd by s 7 before person is deprived of their right to life liberty and security.
Right to a fair hearing=
● right to a hearing before an impartial and indep magistrate,
● who decides on the facts and the law;
● right to know the case to answer; and
● right to answer that case.

Security context exigencies cannot be used at the s7 stage of the analysis to excuse
procedures that do not conform to fundamental justice.
-hearing reqt is met but secrecy denies persons right to know case against them and thereby
denies them the rigt to challenge the case. - thereby undermines judge's ability to decide the
case on all the facts and law.
-to satisfy s7 : either the person must be give all the relvant info or a substantial sunstitute for
that info must be found

s1 analysis: SCC concluded the s7 infringement was not saved by s1

pressing and substantial objective : satisfied, protection of Canada's national security and
related intel sources.
rational connection : satisfied, non-disclosure at certificate hearings is rationally connected to
the above objective.
But
minimal impairment : not satisfied, IRPA does not minimally impair the rights of persons
named in certificates.
-Less intrusive alternatives dev'd in Can / abroad, notably use of special counsel to act on
behalf of named persons, illustrate that more can be done to protect inidivid and keep critical
info confidential.

(2) Detention of Foreign Nationals

Detention of foreign nationals w/o warrant not infringement of s9 Charter (right against
arbitrary detention). That detention triggered by singing of certificate of inadmissablility =
adequate grounds for detention.
But
Lack of review of the detention for 120 days does infringe s9.
Section 9 of the Charter encompasses the right to prompt review of detention under
s10(c) :the right on arrest or detetion to have the validity of the detention determined by way
of habeas corpus and to be released if the detention is not lawful.
-some flexibiity may be required for period for which suspected terrorist may be detained –
but not to the point of complete denial of timely detention review.
s1 analysis: SCC held the infringement of s9 and 10(c) was not justified under s1
(no need to reconsider the first 2 elements : pressing and substantial objective and rational
connection, since already dealt with above)
-minimal impairment : permanent residents are given mandatory review within 48 hrs that in
itself suggests that denial of review for foreign nationals for a period of 120 days = not
minimal impairment.

(3) Extended periods of detention

s12 (right against cruel and unusual treatment) cannot be used to challenge overall farness of
a legislative scheme -
but indefinate detention w/o hope of release or recourse to a legal process toprocure release
may cause psych stress may = cruel and unusual treatment
- if the legisl is going to provide for indef / lenghty detention w/ onerous coditions for release,
then there must also be provision for a meaningful process of ongoing review on an
individual basis...with meaningful opportunities to challenge the cotinued detention
and conditions for release.
- the result would be that extended periods of detention (accomp by those opportunities)
would not viol ss 7 and 12 of the Charter.
-upon review: the reasons, length, delay in deportation, future delay, and available
alternatives to detention must all be considered.
-judge may find, despite the fact that ss7 and 12 not breached because of availabilty of review
process, that at a certain point a particular detention does constitute cruel and unusual
treatment or is inconsistent with principles of fundamental justice.

Remedy
Court held: IRPA's procedure for judicial approval of certificates of no force or effect due to
being inconsistent with the Charter.
-note: SCC suspended the above declaration for 1 year.

Minister of Citizenship and Immigration v Thamotharem

FC granted judicial review to set aside decision of Refugee Protec Division (RPD) dismissing
T's claim for refugee protection.
-T argued Guideline 7 invalid for depriving refugee claimants of right to fair hearing-
Guideline 7 issued by Chairperson of Immigration and Refugee Board (IRB) pursuant to the
statutory power to “issue guidelines... to assist members in carriying out their duties” as
outlined in the Immi and Ref Protec Act (IRPA) -
Guideline 7 provides : standard practice in Ref Claim is for RPO (officer) to start questionning
the claimant, but RPD member hearing the claim may in exceptional circumstances vary the
order of questionning.
Challenge was denial of fair hearing because claimants denied opportunity to be questioned
by their own counsel first. It was also an unlawful fetter of RPD discretion to determine the
order of questionning and should have been implemented in either IRPA or the RPD Rules,
as a statutory provision to be given effect.
Guideline 7 was applied to T's hearing despite his objections.

FCA held : seriousness of rights involved in determination of a refugee claim +

generally “judicial” character of oral hearings conducted by the RPD => favours high
degree of procedural protection.
BUT inquisitorial and informal nature of the hearing + high volume caseload => will
also shape the procedures
-fair adjudication compatible with fair hearing – even if order of questioning not as obvious as
in adversarial hearing.
-right to be represented by counsel does not include the right of counsel to determine the
order of questioning or any other procedure to be followed.

Soft law – ppolicies issued by admin agencies designed to achieve uniformity in procedures ,
etc,, are a necessary part of their functioning – esp large bodies such as the IRB. These
guidelines are not binding on decision makers, but they may validly influence their conduct.
Guidelines may be expressly authorised by statute, but are not binding as a result – they
cannot = a mandatory rule – members must still have some form of meaningul discretion
to deviate from them.
Guideline 7 expressly permits departure. (could still be possible that member feels bound by it
but that is not a necessary presumption)

Pritchard v Ontario (HRC)

P filed compl w/ HRC – against former employer. Sought judicial rev of HRC's decision not to
deal with most of compl. Comm refused to produce in-house counsel legal opinion provided to
HRC.
SCC held : solicitor client privelege applies with equal force to advice given to admin board
by in-house legal counsel as it does in private law.
Court took note that in-house counsel may have both legal and non-legal responsibilites, so
privelege should be assessed on case by base basis. In this case the communication was a
Legal opinion = therefore privileged.

-Procedural fariness does not require the disclosure of a privileged legal opinion and
does not affect sol-client privilege.
-legisl purporting to limit or deny s-c priv must be interp restrictively. S-C priv can never be
diminished by inference.
“Record of proceedings” in s.10 of Ontarion Judicial Review Procedure Act does not
incl priveleged comm from in-house counsel.
To be applied that way the provision would have to clearly or uneuivocally express the
intention do so.
Solicitor-Client Priv must be:
i. a communication btw sol and client
ii. entail the seeking or giving of legal advice
iii. be intended by the parties to be confidential

-once established s-c priv is broad and all encompassing. all comm made w/in fraweork of the
s-c relationship.

Execeptions:
● legal advice not sought or offered
● not intended to be confidential, or
● purpose is to further unlawful conduct

R v Campbell – appellant police officers sought access to the legal advice prov to the RCMP
by the Dept of Justice. Court compared function of public lawyers in govt agencies to a
corporate in-house counsel -if legal advice given to a “client department” then priv applied.
while policy advice outside legal responsibilities not protected by the priv.
-Compl tried to raise the common interest exception arguing that her and the Commission
had a joint / common interest – court did not agree – Commission does not share an interest
with the parties before it – rather the Commission is a disinterested gatekeeper for
human rights complaints and by definition does not have a stake in the outcome of any
claim.
-nor does the Comm'n have a trust relationship or owe any fiduciary duty to the complainant
so as to give rise to the exception.
-The common interest exception to s-c priv does not apply to an administrative board w/
respect to the parties before it.

Garland v Consumers Gas Co v Enbridge Gas Distribution

Rates and payment policies governed by Ont Energy Board. Penalty interest on bills (LPP)
was higher than the maximum rate prescribed by s347of the Crim Code.
-once Gas Co put on notice that serious possibility that the LPPs contravened the Crim Code,
no linger reasonable to rely on OEB rate orders to authorize them.
-defence of s18 of OEB Act read down to exclude protection from civil liability where damages
arising out of Criminal Code violations.
-OEB does not have excl jurisdiction over the dispute = private matter w/in civil court's
competence
-for the regulated industries defence to apply Parlt had to have indicated , either
expressly or by necessary implication, s347 of the Code granted leeway to those acting
pursuant to valid provincial regulatory scheme. -No such indication found in s347.
The de facto doctrine does not apply in this case – it only attaches to government and
its officials in order to protect the rule of law and the authority of govt.
De facto doctrine does not extend to a private corporation regulated by government
authority. -Not found in the case law and would not further the doctrine's purpose.

Exclusive Jurisdiction and Collateral Attack

Why OEB does not have exclusive jurisdiction over the dispute: involves rate orders – but
at its heart = a private law matter, Board would not have jurisdiction to order the (civil) remedy
sought (unjust enrichment).

Why not an impermissable collateral attack on OEB's order: this doctrine prevents parties fro
undermining previous orders by admin tribunal or court. Invoked where party attacks the
validity of an order bypassing the direct attack procedures available to them, eg appeal or
judicial review. (in this case comencing a civil action that deals with orders by OEB enabling
Criminal Code breach)
-does not apply because appellant's objective was not to invalidate or render the Board's
orders inoperative, but to recover money ilegally collected as result of those orders.
-more often coll attack is to be applied to a party bound by an order seeking to avoid its effect
by challenging it in the wrong forum. But here he is not bound by the order – the purpose of
the rule against Coll Attack is to maintain the rule of law and proper administration of justice
-ie applies where a party is attempting to circumvent decision rendered against them.

Bell Canada v Canadian Telephone Employees Assn.

The Tribunal should be held to a high standard of independence, both at

common law and under s. 2(e) of the Canadian Bill of Rights. Its main function is
adjudicative and it is not involved in crafting policy. However, as part of a legislative
scheme for rectifying discrimination, the Tribunal serves the larger purpose of
ensuring that government policy is implemented. The standard of independence
applicable to it is therefore lower than that of a court. The Tribunal’s function in
implementing government policy must be kept in mind when assessing whether it is
impartial.
...The guidelines are a form of law. Being fettered by law does not render a tribunal partial,
because impartiality does not consist in the absence of all constraints. The guideline power is
limited; and the statute and administrative law contain checks to ensure that it is not misused.

The power to extend members’ appointments does not undermine the independence of
Tribunal members. This question is settled by Valente. A reasonable person informed of the
facts would not conclude that members whose appointments were extended were likely to be
pressured to adopt the Chairperson’s views

Paul v British Columbia

Whether province can constitutionally confer on administrative tribunal power to determine
questions of aboriginal rights and title as they arise in course of tribunal's duties
-BC Ministry seized 4 logs in possession of P, registered Indian – who planned to build deck
on his home
-P argued aboriginal right to cut timber for house modification and s96 Forest Practices Act
did not apply to him.
-SCC : held Province has legisl competence to give admin trib capacity to consider aboriginal
rights question in course of duties
- it was coceded the operation of the law's effect on Indians not so great as to make its pith
and sustance a federal matter.
-law does not touch on the “core of Indianness” and not unjustifiably inconsistent with s 35 of
the 1982 Act

Dunsmuir applied:

http://www.law.utoronto.ca/faculty_content.asp?contentID=1743&itemPath=1/13/0/0/0

Martin v. Vancouver (City)

Appeal by Martin, an ousted member of the City of Vancouver's Board of Variance, from the dismissal of his
application for judicial review of City Council's resolution rescinding his appointment. The chambers judge
held that City Council had a broad power to rescind the appointments of members of the Board of Variance.
While members were appointed to three-year terms, the power to rescind those appointments "at any time"
made their appointments "at pleasure." There was nothing to establish bad faith on the part of City Council,
which owed no duty of procedural fairness to Board members.

HELD: Appeal dismissed. The chambers judge correctly concluded that, in the context of the statutory
framework within which City Council functioned, the Council breached no principles of procedural fairness
and acted in good faith in rescinding the appointments of the members of the Board. The Board was not an
independent tribunal with security of tenure. It carried out a limited role in deciding specific disputes relating
to some planning and development matters in the context of Council's plenary powers over that process.
Council had the explicit power to rescind appointments at any time without reasonable cause.
Coffey v. College of Licensed Practical Nurses of Manitoba

He then attempted to solicit support from other members for the convening of a special meeting of the College to
deal with fees and other matters. It was aspects of that solicitation that led the College to direct an investigation
into the appellant's conduct and then to lay charges. The principal problems with the solicitation, from the
College's perspective, were that it contained false, inaccurate, erroneous and misleading information in
respect of staff salaries, and that it circulated outside the licensed practical nurse membership. In the Panel's
opinion, those factors, taken together, brought the profession into disrepute and constituted unprofessional
conduct. The appellant maintained that any errors he made in the solicitation were no more than errors in
judgment, not in any way rising to the level warranting professional discipline. He argued that he had been
punished because he had challenged the College, and had made life difficult for those administering the
affairs of the college.

HELD: Appeal dismissed. The decision of the Panel fell clearly within the "range of possible, acceptable
outcomes which were defensible in respect of the facts and law". The degree of deference to the Panel's
decision intended by the Act to be shown by the court on appeal of that decision was fairly high. The
standard of review was therefore reasonableness. The appellant had the burden of persuading the court that
"there is no line of analysis within the ... reasons that could reasonably lead the tribunal from the evidence
before it to the conclusion at which it arrived". The reasons of the Panel demonstrated that it considered all of
the evidence before it. The appellant knew that the Union mailing list included non-licensed practical nurses.
Moreover, in his evidence the appellant acknowledged that non-licensed practical nurses were among the
persons who would receive the solicitation. Second, there was evidence that the solicitation contained false
information relating to staff salaries. That false information impugned the integrity of the College's officers
and staff.

In Da Mota – it is argued that there still is a patent unreasonableness standard of review

Da Mota v. Canada (Minister of Citizenship and
Immigration)
Noting that The Court [in Dunsmuir] did not address paragraph 18.1(4)(d) of the Federal
Courts Act7. The relevant portions of subsection 18.1(4) reads as follows:

18.1 (4) The Federal Court may grant relief under subsection (3) if it is satisfied
that the federal board, commission or other tribunal

...

i. based its decision or order on an erroneous finding of fact that it

made in a perverse or capricious manner or without regard for
the material before it;

...
I am satisfied that it remains clear that, where this Court is called upon to review a finding of a
federal board, commission or other tribunal, the decision of which is under judicial review by
this Court, this Court is still entitled, and indeed obliged, to grant relief if it determines that the
finding is indeed a finding of fact and that it was made in a perverse or capricious manner or
without regard for the material before the federal board, commission or other tribunal. This
"standard of review" has been interpreted as akin to the now abolished standard of "patent
unreasonableness".8