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Readings: (CB, Chapter 1; S & F Chapter 1)
[JR = Judicial Review / HoC = House of Comm]
What is Administrative Law:
Administrative is the body of law that governs how people exercising power pursuant to a delegation of power in a statute (or
occasionally the royal prerogative) go about their business.
 In most cases, the people who have this form of power (again, typically given to them by a statute) are members of the
executive branch of government, although often at some arm’s length from it. In our system, based on the rule of law, we
want to make sure that people with this power exercise it properly. Almost all of administrative law is about deciding
what we mean by “properly”
Role of the Courts: to ensure the decision-maker’s do not step outside the boundaries of what they are legally empowered to do
(via statute). For example, the courts review delegated decision-making.
Brown 2000: The overreaching theme of JR at time intertwined Constitutional Law and Admin Law:
 Example: BC Electric Railway v CNR 1932: successful challenge prevent Board from exercising jurisdiction over
foreign-owned BC rail operator (rather, jurisdiction was limited to railways provided for by FED leg).
Subject Matter of Law: law governing the implementation of public programs, particularly at the point of delivery, where they
are likely to have their most immediate impact on the lives and rights of individuals.
Reasons for Expanding Administrative Law:
(1) Desire to depoliticize certain decision
(2) Need for greater specialization in decision making
(3) Reluctance to have courts hear matter not suitable to JR because floodgate
Administrative Law Concerns:
 The legitimacy of the decision given the significant impact a decision could have on an individual and the fact that
boards and tribunals were not publically accountable to same way the government is (ie: passing leg via HoC)
Theories of Admin Law: (Conflict/Tension)
Legal Formalism: (A.V Dicey and followers)
 Law was composed of ‘scientific legal rules’ rules are discerned by close examination. Legal docs spoke for themselves
by looking at ‘plain meaning’ of word. Judges could not ignore the policy implications of the impartial ruling.
 Dicey emphasized ‘individual rights’ and role of court as upholder of these rights.
 Rise of Welfare State= Resistant- Role of lawyer to rise up and protect the rule of law against the executive.
o Lord Hewart: “Depotism” meant placing government departments ‘above sovereignty of Parliament and beyond the
jurisdiction of the Courts’, and he was dismayed at the delegation by Parliament of legislative powers to government
Formalism begun to affect constitutional interpretations such that Administrative agencies were increasingly challenged
as being outside the jurisdiction of the fed or prov creator.
Progressives: (Pound)
 Common law reasoning should be instrumental and seek social welfare
Functionalists: (Direct Opposition to Dicey- ‘Social Welfarism as goal of Delegated Legislation)
 Where Dicey argues ‘liberty’ imposed a negative obligation on government (not to interfere with individuals and their
actions, they argue liberty imposed + obligation on government: to provide individuals with basic qualities of human life.
 View delegated legislation as essential to achievement of goals and social welfarism.
 Why? John Willis: if state was to look after subjects, then sweeping delegation of Parliament power to Admin was
necessary for welfare state to operationalize itself. Based on efficiency.
 ROLE OF COURTS: JR would always be sporadic and in any event, the judges ignorance of policy should disqualify
them from a major role.
Subject Matter of Public Admin:
Principle Institutional Roles:
Feature of Independent
Admin Agencies (most, if not
Principle public forum where decision are explained/ debated. Nearly all
public programs originate with statute enacted by either PROV or FED
Minister has responsibility for department (fed) or ministry (prov) that is
established by statute. Minister is accountable for exercise of powers
assigned to her or those under his discretion.
Exercise powers which are delegated by PROV, subject to provincial
guidance/control. But as elected members they debate and pass bylaws
and resolution within their granted powers.
Enjoy substantial independence in day-to-day operations. Purpose of
independence: to enable them to make commercial decisions without
government interference. Gov still have considerable influence: eg. CBC.
Some derive legal authority from contract, and may resemble admin
agencies that otherwise discharge governmental functions. EX: Sporting
Bodies, Child Welfare
Most distinctive institutions of Admin State (board, tribunals,
commissions). They have been created in every jurisdiction without an
overall organizations plan.
 Measure of independence from gov. dep
 Those likely affected by decision are given opp to participate in
decision making process by providing evidence
 Operate at ‘sharp-end’ of admin process—aka they apply to the
individuals. EX: denial of license, refugee determinations
 They are specialized
 Different sized policy-making mandated
 Some resemble courts in their structure
 Some agencies have giant caseloads
Where do Courts get their Power to review?
3 Sources of Review Power:
(1) Original Jurisdiction: Ordinary courts have jurisdiction over decision of admin- decision-makers when they are
challenged on grounds that state has infringed an individuals private legal right (tort/contract)
(2) Statutory Right of Appeal: Right must be provided for in statute, there is no automatic right to appeal the substance of
admin decisions
(3) Court’s inherent JR jurisdiction: Superior Courts in each prov may review decisions made by institutions and officials
with responsibility of administering public programs, via courts inherent JR jurisdiction (s.96)
Effect of Privative Clauses: The legislature often inserts privative clauses into statutes in an attempt to stop courts from
reviewing the decisions of admin decision-makers; courts ignore the clause or interpret them in a very restrictive way.
McRuer Commission 1968:
o Helped to bring about a basic codification process of procedures for admin tribunals
o Set up response to criticism of a government bill conferring a broad-ranging investigatory power to a Commission.
CODIFICATION PROCESS: (procedures to extend availability of JR):
 Statutory Powers Procedure Act, Ontario 1971 (SPPA)
 1971 Judicial Review Procedure Act: established rules for courts reviewing errors of both law/fact.
Federal Court Act 1970: allowed for almost complete transfer of ‘remedial jurisdiction over federal statutory decision makers
from provincial superior courts to newly created Federal Court of Canada’.
Section 96 CA 1867: power to enact federal courts
 Statute provides a foundation for the court’s to not accept privative clauses as ‘ousting their authority’. HOW?
o Admin Agencies/Tribunals only derive power from legislation, thus powers are limited. PAR SUP Parliament can
enact anything. However, arguments exist that there is an implied constitutional guarantee via 96-100 of JR of
admin action
Provinces do not have the jurisdiction to enact s.96 courts, however they enact administrative tribunals (de facto s.96
courts) by inserting privative clauses for immunity.  unconstitutional.
Superior Court have developed a 3 part test to determine whether an administrative tribunal is actually acting like a
s.96 court (thus unconstitutional) as its without jurisdiction to do so:
(1) Is admin decision similar to one that at time of Confed, would have been exclusively within power of a superior
(2) Is impugned power a ‘judicial’ power as opposed to an admin/ legislative power? (Judicial power being one where
private disputes between parties, and adjudicated through a recognized body of law)
(3) Has decision making power in its contemporary institutional setting sufficiently changed its character such that it
did not conform to the jurisdiction of the court?
Crevier v AG(QB) 1981: [leading admin tribunal masquerading as s.96 court]
 Quebec Professional Tribunal hears appeals from discipline committees of most statutory professional bodies.
 Tribunal was composed of provincially appointed judges. Act included a privative clause stating tribunals
decisions were final
Issue: Was QPT acting like s.96 Court?
Held: Per Laskins CJ:
 Prov in creating a tribunal could include a privative clause if it allowed SC jurisdiction to review questions
of jurisdiction even if there was limited JR of all other kinds of decisions from tribunal. Wording of clause
ousted SC thus unconstitutional.
Ratio: There is a constitutionally recognized right to JR, s.96 courts are entitled to check jurisdiction of admin
Grounds of Judicial Review (JR):
There are 4 grounds of review that may overlap:
(1) Procedural fairness: Administrators generally have a legal duty to act in a way that is procedurally fair. This may
require prior notice and a reasonable opportunity to respond to those likely affected.
(2) Illegality: Court must determine the scope of the legal powers and duties of the agency by interpreting the relevant
legislation. Admin action has not legal validity if it is not authorized
(3) Unreasonableness: Admin also have a legal duty not to exercise their powers unreasonably. Lack of reasonableness is a
grounds of review. Similarly, admin action might infringe on Charter right and must be justified under s.1
(4) Unconstitutionality: Since Charter, common that lawyers frame court challenges to admin action in terms of both
common law and the constitution. There is an overlap in admin and constitutional law.
Intro to Procedural Fairness and Substantive Review:
Procedural Fairness:
Procedural fairness or natural justice as required by Section 7 Charter, requires court in reviewing actions of tribunal to
determine whether the procedure followed by the tribunal in coming to the decision was proper.
Step 1: “Threshold Question”: Is it the kinds of decision that should attract some kind of procedural right?
WHAT Court is asking whether it should review the decision- maker’s procedures or conclude that whatever decision
maker decides to do by way of procedure is sufficient?
 Where an individuals right/ interest is affected by the decision= entitlement to procedural fairness
 Legitimate expectation? – should individual be entitled to certain procedural rights if some representation has been
made that such rights are forthcoming?
 Basic principle: fair process may be required even if not provided for in statute.
Nicholson v Haldimand PC 1979 SCR: Laskins CJ held that a police constable employed during a probationary period
could not be dismissed arbitrarily without being given reasons.
Step 2: Where threshold for some form of procedural fairness has been met, court determines what those procedures will be:
Baker v Canada (Minister of Cit/ Imm) 1999 SCR [leading case]
 Appellant near deportation, request minister of immigration to use discretionary powers on H/C grounds to
remain in Canada with 4 children/illness while applying for permanent residency. App denied. SC accepted
there were sufficient reasons for decision:
Significance: Identified 5 Factors to determine a general level of PF required:
 The nature of decision and process followed in making it
 The Nature of stat scheme
 Importance of decision to individual affected
 Legitimate expectations of parties
 Procedures chosen by tribunal.
Context: In having decided a general level of PF exists, court will decide from a range of possibilities what specified
procedures are required: notice, disclosure, opportunity to participate, hearing, oral/written reasons for decision,
opportunity to give evidence.
 Admin decision-making is now seen as falling somewhere on a spectrum between quasi-judicial and
legislative decision making, with procedural entitlement varying according to the place on that spectrum.
“Once an individuals, rights, privileges or interest are at stake- the duty of fairness applies and the
question then becomes one of degree.
Step 3: Ask, whether board is so dependent on or connected to the government, that, if appointed, they cannot be perceived as
being sufficiently able to make an independent decision. Here institutional independence is related to the concept of bias (NOT
Intro to Substantive Review:
Substantive review looks at the substance of the decision: the decision itself and not just the procedure that were followed.
Step 1: Court asks themselves what the standard of review is appropriate?
Key Case  Dunsmuir v NB 2008 SC:
(1) Standard of Correctness: (was it a correct decision, the same decision the court would have reached?)
(2) Standard of Reasonableness: a more respectful/forgiving standard (did the tribunal’s decision fall within a range of
reasonable alternatives?)
Context: If deferential= reasonableness. If no deference shown= correctness standard
Intra-vires: evolved into the present standard of reasonableness: that is, a reviewing court will only overturn a tribunal’s
decision if it is unreasonable
o Ultra-vires: evolved into the present ‘correctness’ standard: that is, the court will only overturn tribunals decision if it is
not what court itself could have decided.
Step 2: having determined the standard, the court then applies it to the decision in question.
Context: Having determined standard, it may determine that in review the decision, the standard has been met = The decision
is the same as what would be reached by court, thus, decision will not be overturned.
Del Vecchio v Canada (Public Safety) 2011 FC:
FACT: Decision to transfer prisoner from US to Canada made by Minister of Public Safety, in the negative.
HELD: FC found a high degree of discretion was provided via statute thus, Minister was owed deference (applying a
reasonableness standard). But by arbitrarily allowing A’s accomplish transfer, the minister was outside his jurisdiction.
(thus same decision would not have been reached by courts)
The RULE OF LAW (RoL) and the Administrative State:
The preamble to the constitution recognized the principle that government should be subject to law Reference Re Secession QB
1998 SCC.
Van Harten: argues that an important function of ADMIN LAW, is the maintenance of the RoL (courts being at center)
This is demonstrated by the fact that contemporary admin law reflect Dicey’s RoL:
1. no one should be made to suffer except for a distinct breach of law
2. government and citizens alike are subject to the general law of the land
3. law of government should be administered in the ordinary court
Dicey asserts: There is no distinct body of public law applying to relations between individuals and state that is
administered outside of the ‘ordinary courts’.
This ultimately provides justification for the exercise of the s.96 Courts in JR, even when legislature have used privative
Functionalist Criticisms:
Argue that Dicey’s understanding of the role of s.96 courts could only frustrate the implementation of legislative
arrangements for regulation and redistribution in the public interest.
Argue: Dicey’s version of the ‘rule of law’ put’s public administration into a straight jacket.
ARGUE: More likely that GOV, in face of obstruction from economic vested interest, would take course of least resistance
by curbing the effectiveness of public programs rather than risking judicial reproach in the name of private rights. Positivist
legal tradition has failed to appreciate that law is intertwined with policy!
Functionalist approach= stresses the facilitative and legitimizing roles of law- as regulator and provider of benefits, state
should be regarded as a source of good law.
David Dyzenhaus 2002:
 Functional approach attaches insufficient weight to considerations of democratic accountability and fundamental
rights as to the positive contribution courts can make to realizing these goals
 HOW Rework Functionalist Approach to RoL in order to provide for law of JR in advancing these values in
contemporary admin state:
(1) With the apparent dissolution of public confidence in the capacity of the political process to exercise democratic
control over operation of the government, it is appropriate for admin law, via JR to ensure procedural openness
and enhance accountability in public admin
(2) While reviewing courts should normally show a measure of deference to a specialist agency’s interpretation of
its enabling statute
(3) Agree with functionalist, that the most reliable guide to the ‘intent of the legislature’ is an interpretation that best
furthers the purpose of the statute (a matter the agency will often be better placed to determine then a reviewing
 My argument: mix of both is best!
S & F, chapters 5, 6, 7, 8 and 12 (procedural aspects of
1) Different Sources of Procedural Fairness:
We begin with procedural obligations that administrative decision-makers must observe in exercising their powers. The
starting point is understanding where these come from:
 To determine whether it is required by law to afford procedures and if so, which ones, Courts look at enabling statutes:
Singh v Canada (MEI):
Significance: IMM Act provided a complete procedural code governing refugee status determinations, thus displaced CL
duty of fairness.
SUBORDINATE LEGISLATION (Admin policy/practice)
 Leg may choose to statutorily delegate to EXE, minister or board itself, the power to enact regulations/ rule of procedural
requirements (because of expertise)
 Issue: delegated rule makers are not respecting the wishes and expectations of the delegator’. To minimize this risk,
delegated legislation is subjected to various mechanisms of accountability and scrutiny: such as public consultation or
judicial review where statutorily prescribed mandatory steps for the effective enactment are not followed.
 Public authorities will issue guidelines and policies. It is a form of soft law that need not be provided for in the authorities
enabling statute.
 They play a dominant role in public authorities decision making
 Example: Baker ‘H&C Guidelines relied on
 General procedural statutes which constitute an additional source of procedural requirement:
Ontario Statutory Powers Procedures Act (SPPA) 1990:
Feature: most detailed stat codification of procedural safeguards, 1994 amendments made that expressly
empowered tribunals to make general rules governing their practice/procedure. (Product of CJ McRuers
Significant: sets out procedural safeguards that broaden powers of boards to structure on proceedings efficiently
Alberta Admin Procedures and Jurisdiction Act 2000:
Much less detailed, not conferring broad power.
BC Administrative Tribunals Act 2004:
Similar to ON
Empowers tribunals to make own rules governing their practice and procedure tailored to specific circs.
Purpose of Adoption: 2 reasons to adopt (McRuer Commission)
(1) Content of CL is unsatisfactory and if left to courts= uncertain/slow process of change
(2) Desire for some distinctive attributes of the form of legislation /legislative process (responsibility of overall scrutiny).
 Critique Asimov:
o Asimov review California Statute- finds that by setting a minimum requirement for all agencies requiring formal
rulemaking procedure for and publication of all additional procedural rules would force procedural rules out into open,
facilitating more compliance and non-lawyer representation before certain agencies.
o California has so many unpublicized procedural rules that were known only to staff and those who deal regularly with the
agency- ON/BC model great!
Issues with General Statutes:
(1) Technical/ Challenges to drafting to avoid inconsistencies/gaps and to integrate statute with CL
(2) Need to accommodate diversity among agencies and change.
If procedure not required by public authorities enabling statute, valid leg, or general procedural statute, the authority may
still be obliged to provide CL procedural fairness
Require: (1) Entitled to be heard by authority in (2) impartial/indep hearing- coming from natural justice.
Nicholson v Haldimand-Norfolk RPC 1979 SCR [leading case]
 A at 15 months was discharged by board within probation period = opportunity for submission, pursuant to
Police Act, requiring 18 months for rights
Issue: Was there no protection between natural justice and arbitrary removal for A who was less then 18 months
Held: Cannot be denied protection.
RATIO: In sphere of Quasi-judicial, the rules of natural justice run and admin decision making = general duty of
Section 7 (life, lib, security) established a higher threshold than simply demonstrating that a right, privilege or interest is
When s.7 right is breached, s.1 justification is often available.
RE BC Motor Vehicle Act:
Significance: SCC held principles of fundamental justice includes procedural fairness protection
CB 85-105; 109-113; 132-156; 157-176
(Knight “Three-Prong” and the Concept of “Legitimate Expectation”)
Now that you understand that procedural obligations come from a number of different sources, you need to understand which of
these procedural rules applies where. We call this the “trigger” (or threshold) – where is a given procedural obligation triggered?
Where procedural rules come from legislation (typically, but not always, the legislation that gives the decision-maker his or her
powers in the first place), the answer to the trigger question is in the legislation itself. So too with the “general statutes about
procedure” – they contain their own triggers. So you need to be careful to read that legislation if it applies to your decision maker.
(make sure the statute does apply to your D-Maker, ask: could a provincial general procedure statute even apply to a federal admin
decision maker?)
Today, there are two triggers for common law procedural fairness and other triggers available:
(1) Knight three prong trigger (CL)
(2) Legitimate Expectation (CL)
(3) Emergencies and Legislative Decisions
(4) Charter & Bill of rights
Where the requirements of the triggers are met, then procedural fairness is owed by the administrative decision-makers.
o Cooper: court willing to impose hearing requirements based on how they categorized the nature of their decisions making:
judicial or quasi-judicial functions = compliance with natural justice.
o Ridge v Baldwin 1946 AC: Judicial character of the decision-maker’s power could be inferred from the nature and power
and, in particular, could be implied from the mere fact that rights were being affected
o Nicholson v Haldimand- Norfolk RC 1979 SCR: Where quasi-judicial decision—rules of natural justice run.
Administrative and executive decisions require a general duty of fairness.
Following Nicholson Canadian procedural fairness gradually expanded to areas of administrative decision making that had
previously escaped judicial scrutiny for compliance with the rules of natural justice:
Knight v Indian Head School Division No.19 1990 SCR [Key Case]
 Board of Education dismissed R (director of education- appointed at pleasure) after he refused to renew
contract of employment for shorter terms than original term. A alleged wrong dismissal, and entitlement to
procedural fairness before dismissal.
Issue: Could procedural fairness be required to an office-holder appointed at pleasure?
SC held procedural fairness was due to an individual appointed at pleasure, however, the requirements of
procedural fairness had been satisfied
Ratio: Rejected the rigid categories that had characterized pre-Nicholson/ Baldwin case law:
Divided line of New Threshold of the duty of fairness, based on distinction btw decisions of legislature and
general nature and acts of an admin and specific nature
Embraced the conception of procedural fairness as a free-standing common law right
Consequences: AVOIDS need to find in the decision-makers enabling statute, any provision that
expressly/impliedly conferred on office-holder a right to be heard.
May be a general right to PF, autonomous of the operation of any statute, depending on the Consideration of
3 factors, which are determinative of such right (If Considerations lead to conclusion that A was entitled to PF—
Education Act and terms of the contract of employment, must be considered to determine whether this
entitlement is either limited or excluded entirely
Content of the duty is informed by the context (in particular decision is made and various according to a # of
factors) (Syndicates)
Three-Prong Trigger [From Knight]  Common Law Procedural Fairness
STEP 1: The existence of a general duty depends on: (laid by Cardinal v D or Kent)
(1) Nature of the decision to be made by the admin body
(2) The relationship existing between body and individual
(3) The effect of that decision on the individuals rights
(1) Nature of the Decision to be made by the admin body:
No longer need to distinguish between Judicial and quasi/admin decisions. Distinguish between decisions of
leg/general nature vs. acts of a more admin and specific nature. The former not entailing a duty of PF (not all admin
bodies are under duty).
Decisions of a prelim nature will not in general trigger the duty to act fairly
Decisions of a more final nature will trigger a duty
NOTE: In relation to this case, since the decision of the board was final, as director was terminated, the decision to
dismiss could entail the existence of a duty
(2) The Relationship between the Employer and Employee (Baldwins 3 possible employment relationships):
(a) master vs. servant (no duty to act fairly when deciding to terminate)
(b) office held at pleasure (no duty to act fairly, since employer can decide for no reason but displeasure)
(c) office from which one cannot be removed except for cause (duty)
NOTE: In this case, the office was held was not a pure “master-servant” because of its public nature. The office was
more of statutory nature since duties are listed in ss107, but there may be feature that demonstrate that his function is not
‘purely’ statutory. Therefore R falls into ‘office held at pleasure’.
NOTE: SCC concluded that it does not necessarily mean that Board was not under a duty to act fairly, because Admin
Law has evolved so as to make procedural fairness essential requirement of an admin decision to terminate either (b)/(c).
Public policy: b/c public has interest in proper use of delegated power- simplification of these principles are desirable/
(3) Impact of the Decision on the Employees
There is a right to procedural fairness only if the decision is a significant on and has an important impact on the
individual. Various courts have recognized loss of employment= sign decision imposing duty on admin body
NOTE: In this case, Court concludes that the impact of the decision made by the Board is compatible with the imposition
of a duty to act fairly.
STEP 2: Having concluded there is a general right to procedural fairness:
(a) Statutory framework must be examined in order to see if it modifies this right
(b) Contract of employment must be examined
(a) Statutory Framework:
Statutory framework must be quite clear for PF= restrictive interpretation.
NOTE: In this case, Court find Education Act does not explicit excuse the Board from acting fairly when terminating the
employment contract of one of its administrative personnel. But the s.112 demands by necessary implication that
reference be made to the contract of employment in order to determine whether the rules of natural justice have be
(b) Contract of Employment
In interpretation the contract, must be explicit or clearly implicit provision to the contrary to override this presumption
 The content of the duty to act fairly will be decided on the specific context of each case (Syndicat des employes de production
du Quebec v Canada).
NOTE: This flexibility however, means the difficulty of differing notions of fairness= In Knight, the basic requirements of
the duty to act are giving reasons for the dismissal and a hearing. Thus, as the Board provided notice of the Boards
dissatisfaction with the R’s employment and affording him opportunity to be heard would be sufficient to meet the duty!
FAIRNESS = minimum duty= Courts ask whether Procedural protection in circumstances = Adequate, not ideal.
RESULT (Knight):
HELD: CA concluded that the procedure following by the Board was fair, as R was made fully aware of the grievances of the
Board and had ample opportunity to present his side of the story.
De Smith 1980: “aim is not to create ‘procedural perfection’ but to achieve a certain balance between the need for fairness,
efficiency and predictability of outcome.
Common Law Threshold:
Following Nicholson, it was unclear whether there was still a threshold (between natural justice/ procedural fairness), and it so,
how was it defined? Nicholson held that in some circumstances, admin decision-makers owed affected parties a duty of PF,
thus the formalist approach lost all importance:
Cardinal v Director of Kent 1985 SCC: Per Le Dain J- new threshold: duty of fairness lies in every public body whenever
decisions affect rights, privileges and interest of individual.
Re Webb and Ontario Housing Corp 1978 ONCA: [intersection b/w PF claims and SPPA and sliding scale in
procedural claims depending on nature of the interest at stake]:
OHC owned, MPM managed building for low incomes. W (+children) tenants in 1970. 1972 MPM recommends
termination. OHC approves and termination brought under Landlord Tenant Act 1970. W application for review of OHC
decision and application under LTA was dismissed. Appeal
Is this a case that warrants application of fairness?
OHC given power under OCHA 1970 to acquire/dispose of property and enter agreements under HHA 1970. Thus,
decision is only part admin duty imposed on OHC. Board =/ tribunal exercising statutory powers of decision conferred by
Act where it was required by Act to hold opportunity for hearing. Because her benefit from property (give her poor circs)
and relationship with OHC in depriving her benefit, procedural fairness was required. However she was well aware of
complaints/ opportunity to answer.
‘“Fairness is in the eye of the beholder’, so long as person adversely affect is advised of case and permitted to answer, that
is sufficient.
Hutfield v Board of Sk General Hospital 1986 ABQB:
FACT: A’s application to be appointed to medical staff pursuant to s.11(d) was refused. Board rejected him and refused to
give reasons.
HELD: No duty to grant hospital privileged to A even if qualified. But there is no doubt his professional interest would be
affected by decision= poor reputation= substantial hindrance on interests = procedures necessary. They were required to give
him reasons.
Knight: Per L’Heureux-Dube: confirmed Cardinal, threshold: where decision is of a legislative/general nature, as oppose to a
more administrative and specific nature, there is no duty to act fairly. (CURRENT- VIEW BELOW)
Leading Case on Scope and Content of Common Law Duty of Fairness:
Baker v Canada (Minister of Cit/ Imm) 1999 SCR:
A near deportation, request minister of immigration to use discretionary powers on H/Compassionate grounds
to remain in Canada with 4 children/illness while applying for permanent residency.
App denied relying on report of an immigration officer who wrote in inflammatory report indicating she was a
strain on social welfare, mental health etc.
SC accepted they were sufficient reasons for decision.
She argues she should have been granted an oral interview, children should have been given notice and allowed
to make submission, permission to attend and argue officer’s note gave rise to reasonable bias
SCC found Baker entitled to procedural fairness protection, but content of duty was minimal in the
circumstances: oral hearing not required, rather written submission sufficient.
SIGNIFICANCE: Per L’Heureux Dube
Reiterated the purpose of DoF (ensuring decisions are made using fair/open procedure and ID’d 5 Factors
relevant to determining a general level of PF: TEST FOR GENERAL LEVEL OF PF NEEDED:
(1) Nature of decision and process followed in making it:
More process provided for/ the function of the tribunal/ nature of decision making body/determination
that must be made to reach a decision, the more likely it is that procedural protections closer to the trial
model will be required by DoF.
(2) Nature of stat scheme:
Pay close attending to legislation that authorizes a decision to be made. Greater fairness protection will
usually be required if final decision must be made, but decision need to be final in order to attract a high
degree of fairness protection
(3) Importance of decision to individual affected
Content of duty increases in proportion to the importance of the particular decision to the person that is
affected (ie: when employments at stake)
(4) Legitimate expectations of parties
Where A led to understand he will be provided with particular procedural protection (oral hearing)
before decision is made, they may have a legit expectation, thus it has to happen. Can stem from
representation, undertaking and past practices. Legit expectation is also another means of threshold
inquiry (within CL)
(5) Procedures chosen by tribunal.
Procedural choices made by decision maker must be taken into account in determining requirement of
DoF. One important task for Agency in responding to applications for JR is to educate court as to the
needs of their process.
Admin decision making is now seen as falling somewhere on a spectrum between quasi-judicial and
legislative decision making: with procedural entitlements varying according to placement on that spectrum.
‘Once right, priv, interests are at stake, duty of fairness applies and question then becomes one of degree’.
NOTE: Having decided the general level of procedural fairness, courts will decide from a range of possibilities, what
specific procedures are required: notice, disclosure, opportunity, hearing, evidence, counsel, oral/written reasons for
2. SECOND CL TRIGGER: Legitimate Expectation:
WHAT The 2nd CL trigger for Procedural Fairness.
HOW Procedures will be required by reason of expectations generated in an affected person and not be entirely contingent on a
detached analysis of the statutory power in question.
BIRTH ‘Legit Expectation’ arose because of difficulty of inferring from legislative silence that there was an implicit delegation
to court to decide between when decision maker owes obligations and where no such entitlement arises.
Ridge v Baldwin UK [development of term]
 Per Denning: ‘all depends on whether he has some right/interest or some legitimate expectation of which it would not be
fair to deprive him without hearing what he has to say.
NOTE: Term also used to describe nature of substantive interest for which procedural protections were being sought Hutfield:
R v. Liverpool Corp 1972 HL: A question of whether municipal officials had given express undertaking to association that #
of taxi licenses would not be increase without a hearing  entitlement to such opportunities on the particular circumstances
(this laid foundation for modern doctrine).
Modern Legitimate Expectation:
In Canada = an expectation of a hearing arising out of an express representation, or common practice. The doctrine may
also represent a significant evolution in the law relation to estopple and public officials.
It has been acknowledged by the SCC in 5 cases, however all cases have failed to properly invoke doctrine. This has led to the
doubt of LE actual reach in the CJS:
Old St. Boniface Res Ass Inc v. Winnepeg 1990 SCR:
ISSUE: Was argument that there was an legitimate expectation (based on residents association) that there would be no more
development of the kind at issue until new city plan in place = grounds for procedure?
HELD: Expectations could not prevail against applicant developer, court also found that any such claim could not be made in
the face of all the other procedural protections provided for in relevant legislation.
NOTE: Per Sopinka- describes doctrine as one by virtue of which procedural claims can be made in circs where otherwise no
procedural obligations would exist. Suggesting that the ‘door may have been opened by virtue of legitimate expectation’ for
legislative functions (because no procedure exists). However in the case below: the main reason for rejecting it applicability
was that it had no relevance to legislative functions (ISSUE- when can it apply).
Reference re Canada Assistance Plan 1991 SCR:
FACT: Canada Assistance Plan (fed stat) authorized gov to enter into agreements with province for sharing costs of
provincial assistances and welfare programs. Section 8 of Plan provided that these agreements would continue in force for as
long as the relevant provincial law was in operation, subject to termination by consent by 1 years notice. Fed as part of deficit
reduction policy introduced bill that limited increase in its financial contribution to BC, AB and ON. No notice given
ISSUE: Can Feds be precluded from introduction Bill by virtue of legitimate expectation that amendments would only be
made by agreements of consent?
HELD: AG argued it was illegal b/c violated legit expectation. Per Sopinka: Courts will not intervene during legislative
process, as Parliament would be paralyzed if doctrine of legitimate expectation could be applied to prevent government from
introducing legislation in Parliament.
NOTE: Sopinka rejects any notion of legitimate expectation being anything other then a source of procedural claim, thus
never generating a claim to substantive outcome (as it was claimed that if doctrine required consent and not merely
consultation, then it would be a source of substantive rights).
NOTE: Baker upheld that substantive expectations can generate an entitlement not to substantive outcomes but to
procedural protections.
COMPARE: GCHQ 1985 AC HL: where a practice of consultation between gov and union for alterations of employment
conditions. Minister of civil service made order forbidding GCHQ employees from belonging to national trade unions after
union striked. Union sough declaration that order was void because it was made without consultation: HL held order entitled
to JR because union has legitimate expectation that they would be consulted before decisions made. However, claim failed
because national security outweighed expectation (thus beyond courts).
Mount Sinai Hospital v Quebec (Minister of Health) 2001 SCR [not available for substantive decision]:
FACT: Minister agrees with Hosp to regularize license after relocation. New minister refuses. Sought mandamus to compel
based on legitimate expectation.
HELD: Per Bastarach J: need not issue of public estopple/ legitimate expectation. Because earlier minister had already made
decision, current minister had no basis for overturning. Per Binnie J: doctrine is rapidly evolving being employed to impose a
substantive rather the procedural result on decision makers exercising statutory or prerogative power. This is NOT available
for how CA applied it.
Note: English cases on doctrine would fit comfortably within our principle of procedural fairness. At the high end, they
represent a level of judicial intervention in government policy that Can Courts consider inappropriate. Concern that by
treating PF as a subset of LE would unnecessarily complicate and inhibit rather than encourage the development of the highly
flexible rules of PF (D. Wright 1997)
FUTURE OF DOCTRINE: Very uncertain. If it is to play a significant role, it will most obviously be as a surrogate for the
failure of the CL principles to provide for the imposition of procedural entitlement in the context of rulemaking/ broadly based
policy considerations.
3. THIRD TRIGGER: Emergencies & Legislative Decisions:
WHAT CL procedural fairness rules may fail to be triggered to be triggered where there are emergencies and where decisions
are said to be of a ‘legislative nature’.
Decisions of a Legislative and General Nature (Limitation on PF) [exception to]
The term “Legislative Nature” is ambiguous:
Clearest sense= no procedural fairness needed where admin decision-maker is introducing a regulation (ie: delegated
Yet means more = a decision that is sufficiently general and not particular to or focused on a narrow subset of persons
The term “General Nature”= no PF where decision is legislative in nature, this is however subject to exceptions
Re Canada Assistance Plan (BC) 1991: [key case]
[public bodies exercising legislative functions may not be amendable
to judicial supervision, where decision is of a general nature]
RATIO: Rule governing procedural fairness will not apply to legislative decision and functions.
NOTE: Court has never explained what is meant by ‘legislative functions, but it is clear that primary legislation (whether
passed by Par/Leg) is not subject to CL duty of fairness.
NOTE: This reconfirmed what was stated in Knight. Knight also included that decisions of a ‘general nature’ could fail to
attract a duty.
ISSUE What is ‘general’ mean? It has thus far been left undefined
Cabinet and Ministerial Decisions:
EXEMPTION?  Not subject to the legislative exemption per se, but easy to characterize Cabinet and Minister decision
as legislative in nature, thus exempt from duty.
Canada (AG) v. Inuit Tapirisat of Canada 1980 SCR: key case
FACT: Fed Cabinet rejected an appeal from a decision made by the CRTC without allowing the petitioning group to be
heard. Cabinet heard from utility (Bell) and the CRTC and took advice from ministerial officials, but Inuit were left out
of proceedings.
ISSUE: Was Cabinet power legislative in nature, in part because Section 61(1) National Transport Act authorized
Cabinet to overturn decision of CRTC on its own motion?
HELD: Meer fact that stat power is vested in Cabinet does not mean its beyond JR. However, this was ‘legislative
action in its purest form’. Parliament pursuant to s.64(1) has not been burdened with guidelines in exercising review
function, nor were any procedural standards imposed. Thus Cabinet not deprived of right to resort to staff who know
subject matter and are concerned with policy. No fairness issue.
SIGN: Always construe stat scheme as whole in order to see what degree, if any, the legislator intended the principles to
apply. In this case s.64 supervisory power was vested in Cabinet to respond to political/ ec/social concerns at the
moment. Therefore under s.64, Cabinet was exercising delegated power, unless otherwise directed in enabling statute,
thus it must be free to consult all sources which Parliament might itself consult if it retained the function.
Bylaws and Rulemaking Decisions:
EXEMPTION? Subordinate legislation is made pursuant to exec authority and thus accountability may be minimal,
however, in general courts have not imposed procedural requirements on the subordinate law-making function.
The requirements that do exist are however established by legislation.
There are however exceptions:
Homex Realty and Dvlp v Wyoming (Village) 1980 SCR: [ill motive/ property rights]
FACT: Ill-motivated by-law affecting developer.
HELD: Passage of municipal bylaw was subject to duty of fairness, because it was clear that villages motivation for
passing bylaw was an ongoing dispute it had with a particular developer.
SIGN: Prior to limiting property right, A must be given opportunity to be heard where body seeks to limit rights.
Courts will imply right to be heard unless express declaration to contrary exists.
RATIO: “Spectrum” purely ministerial decision, on broad grounds of pp will typically afford little/no
procedural protection.
 If function approaches judicial end of spectrum= substantial procedural safeguards, particularly where
property rights are targeted.
 Not important for municipality to be classified as legislative or quasi, some procedural safeguards were required, at
minimum: notice.
Policy Making Decisions:
EXEMPTION?  Policy decision, as well as decisions of a more general nature provide for legislative exemptions.
Policy decisions are similar to that of formal legislative decision: political in nature/ thus subject to political
accountability- there exemption exists. There is a consistent unwillingness to impose notice and comment obligations
on bodies responsible for policy making and subordinate legislation:
Imperial Oil Ltd v Quebec (Minis of Envi) 2003:
HELD: SCC found that in exercising discretionary power to require an oil company to undertake site decontamination
measure (at own expense) Quebec’s environment minster was performing a political role in choosing from among the
policy options allowed under provincial environment protection legislation and was not subject to procedural fairness
obligations beyond those in the Act.
BROAD AFFECT: Where the impact of a decision being made is scattered, affecting a broad spectrum of the public =
claims to PF are hard to justify. In a generally undifferentiated manner, claims to participatory rights (PF) are hard to
justify (**unless legislation contains indication of public participation or obligation of consultation):
Vanderkloet v Leeds Grenvill (Board of Edu) 1985 ONCA:
FACT: Min of Ed issued guidelines for closing schools to require public participation/consultation. Board also
prepared policies for school closing. A challenged boards decision to relocate students b/c did not follow ministerial
guidelines or board’s own policies.
HELD: Where decision scattered/ affecting broad spectrum of public, claims to participatory rights are hard to justify
(even where guidelines available via stat)
SIGN: Board acting in good faith within statutory authority has control over relocation of students within the district
and is not affecting legal rights of any persons.
COMPARE: Bezaire v Windsore RCSSB’92: Contrary to guidelines/ board policy, board closes 9 schools in face of
financial crisis, affected parties given no opportunity for input. HELD- Guidelines = doctrine of fairness, there was a
requirement of publicity/social, cultural rec impact of closure to consider. Thus, real consultation is a condition
precedent to a valid decision.
BROAD CLASSIFICATION: The classification of broad regulatory functions as ‘ministerial’ or ‘policy-based’
has also precluded regulated industries and producers from successfully claiming an entitlement to consultation before
decision with significant economic impact:
Canadian Association of Regulated Importers v Canada (AG) 1993 FC:
FACT: Ministerial decision changed quota system of importation of product, which significantly affected the
importer. Association claimed they had not been consulted in change:
HELD: Rules of Natural Justice are not applicable to legislative or policy decision. It was a ministerial rather than
board that was establishing quotas (although minister role was broader then usual). Although damaging, other
gained, and because exercise is a legislative or policy matter, not within courts to interfere.
Inspections and Recommendation Decisions:
EXEMPTION?  Not all recommendatory and investigatory functions will attract an obligation of PF, this has been
affirmed in Knight, where L’Heureux Dube stated that a: Decision of a preliminary nature will not generally trigger
the duty to act fairly:
Dairy Producer’s Co-op Ltd v Sask (HRC) 1994 SQB:
FACT: Sex assault complaints at work= HRC appointed officer to investigate and provide commission with report
on whether there was sufficient basis for recommending appointment of board of inquiry to adjudicate complaint.
Company applied for order quashing establishment of board of inquiry, arguing there was probable cause to believe
there had been an infringment of Act, based on breach of rules of procedural fairness during process leading up to
establishment of Board.
HELD: Test to be applied to an investigation Syndicate: Commission must determine whether reasonable basis in
evidence for proceeding to next stage. Process then moves from investigatory stage to judicial/quasi judicial stage if
test is met. In view of nature of Commissions function/ giving effect to statutory provision referred to, it was not
intended that Commission comply with formal rules of natural justice.
Federation of Women’s teacher’s Association of On:
SIGN: duty of fairness owed by an investigative body to inform interested party of the substance of the case
against it and allow an opportunity for responding representations or submissions.
Master v Ontario 1994:
FACT: Allegations of unfairness at investigatory stage appointed by Ontario premier to report on sex harassment
made against agent a prerogative appointee.
HELD: Investigators owne A a duty of PF in the conduct of the inquiry, though not one that amounted to a full trial.
RATIO: Duty fulfilled- Sufficient he was provided with summary of allegations/opportunity to interview witnesses
The following case is exceptional, however it fails to provide a functional test in which that duty will be triggered:
Re Abel and Advisory Review Board 1979 ONCA:
FACT: Board created by Cabinet under Mental Health Act, function to review patients charged criminally
NCBRMI. Made report including recommendations of release. X lawyer requests disclosure of file, which provided
a lifetime of incarceration that was held by institution, Chairman refusing to grant because it did not have
jurisdiction to disclose. Application for review failed because disclosure was clearly prohibited by act.
ISSUE: Do rules of natural justice apply?
HELD: Decision quashed and matter remitted to board for reconsideration. Chairman needed no jurisdiction to
provide report which Board received pursuant to s.29(4) of Mental Health Act.
SIGN: Case concerned non-binding reports, case affirms and extends duty of fairness is required of all
persons/bodies exercising power even though power might be classed as admin, rather then judicial.
Decisions made during Emergency:
EXEMPTION= In emergency situations, even where there is a basis for action, compliance with duty may be suspended
until after the required decision has been made:
Key Case R v Randolph 1966 SCR:
HELD: Post Officer Department suspended mail for purpose of investigation without respondents having heard or without
opportunity to object.
HELD: Interim orders validly made pursuant to Section 7 Act after-the-event hearing. Section enables Post General to act
swiftly in performing the duty of protecting public
Cardinal v Director of Kent 1985:
HELD: Per Le Dain- while duty applied to imposition of isolation or segregation of prison inmate, in ‘urgent/emergency
circs’ there could be no requirement of prior notice/opportunity to be heard before decision. But once recommendation
to end segregation of prisoner has been made by review body duty of fairness requires prison director to inform inmates
of his intended decision to reject the recommendation, provide reasons and afford opportunity to context his intended
4. FOURTH TRIGGER: Charter & Bill of Rights
Readings: CB 178-251
Section 7 of the Charter and the Bill of Rights (1)(2) are triggers for another source of procedural obligation:
Section 7 Procedural Threshold:
WHAT Protects right to not be deprived of life, liberty and security of the person in accordance with the principles of
fundamental justice. Provision does impose the requirement to observe “fundamental justice” – a concept with procedural content
– on at least some administrative decision-makers,
Key Case Re BC Motor Vehicle Act 1985 the SCC held that the principles of fundamental justice include procedural
fairness protection, but the right does not constitutionalize the duty of fairness.
WHEN Applies only in context of decisions which - deprive life, liberty, security, thus a higher threshold then CL duty.
NOTE: When one of these is not to be found in accordance with principles of FJ, it is unlikely that it will be considered
justified under s.1 Oakes Test under Charter
NOTE: Pursuant to s.32(1), Charters application is restricted to Parliament and government of Canada and its legislation,
thus it is restricted within administrative to bodies or activities = ‘government’ *therefore must be Gov body)
McKinney v UoG 1990 SCR:
HELD: notwithstanding their statutory scheme, UNI are not government =/ generally amendable to Charter.
COMPARE: but compare Community College Douglas Facility Ass v Douglas Colleges 1990 SCR: where provinces
community college were amendable by Charter.
NOTE: Corporations will not = gov, but sometimes professional bodies Harvey v Law Society 1992
Eldridge v BC 1997 SCR: [when board directs government policy = charter susceptible]
RATIO: A statutory authority not generally government becomes subject to Charter when charged with responsibilities for the
effectuation of government programs.
Singh v Canada (Min of Imm) 1985 SCR [bodies operating at arm’s length]
 Minister on Advice of Immigration Committee revokes Conventional refugee status. Applied to Appeal board for
redetermination of status, no oral hearing because board found no reasonable grounds for belief that A could establish
claim. Appeal to FCA alleging s.7 Charter breach
 Court cannot import into the duty of fairness procedural constraints on Committee’s operation which are incompatible
with decision-making scheme set up by Parliament. (Minister’s exercise of jurisdiction under s.45 is not reviewable.
Moreover, ministers refusal is not final as s.70(1) allows for 15 day then determination by appeal board. Therefore no
CL duty of PF.
ISSUE: Are they entitled to fundamental freedoms via Charter or Bill of Rights?
RATIO- Charter:
 In determining whether A has been deprived of s.7, must first look at what rights A has under Immigration Act.
Ask whether deprivation of rights afforded by act amount to a deprivation of LLS within meaning of Charter.
 There was fear of persecution, scheme provided was inadequate to enable C the opportunity to know case
against him and meet case. Without knowing case, his burden could not be shown BRD. This is irreconcilable with
s.7. And could not be saved via s.1
Charkaoui v Canada (Immigrant & Citizenship) 2007 SCR:
FACT: Security certificate issued under IRPA, which sets motions for review of certificate. Decision was final under scheme.
Parties provided no disclosure, however non-sensitive matter was provided.
ISSUE: Had state interfered with LLS conforming to principles of fundamental justice?
HELD: Section 7 requires no process but fair process having regard to nature of proceedings and interests at stake.
RATIO: Therefore, s.7 does not permit ‘free-standing inquiry’ into whether particular legislative interest strike a balance
between individual/societal harm, it requires limits be imposed respecting FJ.
Overarching FJ applying here is that before state can detain, it must afford fair process: (each must be met)
(1) Hearing before independent/impartial judge
(2) Decision must be on facts and law
(3) Right to know case put against you and right to answer case
o In this case: RPA includes hearing  Is judge impartial  is decision based on law and fact .
o Was summary by judge, excluding confidence sufficient (right to know need not be absolute, as nat-security limited it)?
o IRPA tries to meet FJ via 1 mechanism= review. Secrecy required by scheme denied named person opportunity to
know case put against him, therefore undermined judges ability to come to decision based on all relevant fact/law.
Applying Oakes Test (R v Oakes 1986):
 A finding of proportionality required:
 (a) mean rationally connected to objective
 (b)minimal impairment of rights
 (c) prop between effect and importance of ob.
HELD: protection of national security = pressing and substantive objective and IRPA procedures of non-disclosure did not
minimally impair named persons rights. Thus unconstitutional, suspending dec, parliament responded soon after.
Wilson v BC (Medical Services Commission) 1988:
FACT: Scheme for limiting number of practicing doctors and restricting the geographic areas to control $ HC
ISSUE: Was “liberty” s.7 broad enough to encompass opportunity of a qualified licensed doctor to practice medicine in BC
without restraint as to place, time, purpose even though there is an incidental economic component to the right being
HELD: Scheme did not offend principles of FJ
RATIO: S.7 Liberty will only protect: Rights being asserted that are personal rights affecting freedom and quality of life, not
purely business interest
In NB (Minister of Health) v G 1993 SCR: the court emphasized that state action must have a serious and profound effect on a
persons psychological integrity in order to trigger the Charter, suggesting a wider role for justice in admin law. The height of
the Charter threshold is evident in this next case:
Blencoe v BC (HRC) 2000 SCR [Arm’s Length Body]:
FACT: BC HRC= Investigation = HR tribunal 30 months after complaint. Leads to attention, depression, umemploybility=
complaint against commission for unreasonable delay = serious prejudice to family= abuse of process and denial of natural
justice. CA stayed HR proceedings finding deprivation of s.7 security, in a matter not in accordance with FJ.
ISSUE: Does Charter apply to BCHRC? Threshold issue- Was Commission and tribunal agents of government pursuant to
s.32 Charter (Does Charter apply to BCHRC)
HELD: Since HR Code grants various powers to commission to investigate, commission cannot escape Charter scrutiny
because it is operating at arm’s length (Pursuant to Eldridge, Commission is carrying out legislative scheme of HR Code).
Consequently, once complaint is brought before Commission, admin proceedings must comply with Charter.
ISSUE: Has s.7 been violated by delay in HR proceedings?
DEFINITIONS / MEANINGS: For the purpose of the appeal, the outcome is dependent upon the meaning to be given to the
interest of “liberty” and “security of the person”.
Liberty no longer constricted to freedom from physical constraint- sufficient it affects important fundamental life choices.
Security protects both physical and psychological integrity of the individual. Therefore: psychological harm must be
state imposed and psychological prejudice must be serious. (Morgantaler)
Right to dignity and protection against stigma of undue, prolonged humiliation and public degration suffered by admin
process= collapsing liberty and security into 1 right: ‘the right to dignity’ Per McEahern. Dignity is not an autonomous
Charter right, but rather an underlying value.
Ordinary stresses and anxieties that a reasonable person would suffer does not equal serious profound effect on R’s
psychological integrity.
HELD: Only in exceptional cases where state interferes in profoundly intimate and personal choices of an individual and
state-caused delay in HR proceedings could trigger s.7 security. Respondent is unable to cross the 1st threshold.
DELAY? Question is whether one can look at psych and social harm caused by delay rather then merely the procedural
or legal effect (ability to make full answer and defence has been compromised) .
Per Bastarche J: unacceptable delay= abuse of process in certain circumstances even when fairness of hearing has not
been promised:
Delay directly causing psych harm/ attached stigma to rep is sufficient= abuse of process
Delay must be clearly unacceptable and directly caused a significant prejudice to = abuse of process. Delay
directly causing psych harm or attached stigma to person’s rep is sufficient to constitute an abuse of process.
To constitute a breach of the duty of fairness, delay must have been unreasonable or inordinate (ie excessive).
NOTE: He is prepared to accept stress and stigma resulting from inordinate delay which may contribute to an abuse of
power, he is not convinced the delay in this case was inordinate (ie excessive).
While C suffered obvious prejudice (because made public) he is not convinced that such prejudice can result directly from
delay in HR proceedings. It cannot be said that R’s s.7 rights were violated or that conduct of Commission= abuse of
process. However he shows concerns for lack of efficiency of commission. Cost awarded pursuant to s.47 SC Act in
favour of B. (Average length= 19.9 months)
Bill of Rights Threshold:
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of
race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof
except by due process of law;
2 (e) 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;
WHAT Bill of Rights real relevance is confined to where Charter is absent. From this perspective there are 3 threshold
dimensions to the Bill of Rights that promise a more extensive reach in terms of procedural protection than provided by the key
Charter provision in s.7:
(1) Terms: ‘individual (BoR) vs “everyone (C)
(2) Inclusion of ‘enjoyment of property’ (s.1)(a) in (BoR)
(3) Attachment of procedural guarantees in hearings to ‘determinations of rights and obligations s.2(e) (BoR).
Could Procedural protections in ss.1(a) and 2(e) apply to Legislative proceedings; or were they subject to a threshold similar to that
established for common law procedural fairness (Inuit Tapirisat):
Authorson v Canada AG 2003 SCR:
o C disabled vet who’s pension administered by DVA were limited pursuant to Parliamentary statute 5.1(4)
Deperatment of Vet Affairs Act providing no claims could be made after coming into force of provision. Vets sued
Crown for breach of fiduciary duty, arguing they were statute barred and statute was inoperative pursuant to Bill of
Right 1(a)2(e):
ISSUE 1: 1(a)What process is guaranteed by BoR when property rights are extinguished?
HELD: Procedural protections in BoR do not apply to Legislative proceedings. Therefore, right to be heard/notice via
DVA going where Parliament provides for in statute. But Bill of Rights does provide a degree of guarantee of procedural
protection in the application of law where there is government deprivation of property.
ISSUE 2: S.2(e) Applies only to guaranteed FJ of proceedings before a tribunal / admin body that determines rights/ob.
HELD: Section. 2(e) protections are operative only in application of law to individual circs in proceedings before court.
o Due process protecting in BoR do not grant procedural rights in the process of legislation enactment. BUT they do
confer certain rights of notice/opportunity in the adjudication of individuals rights/obs. Authoron appears to mean
that the quasi-constitutional norms prescribed by BoR are of no assistance in decision making context that fall on the
legislative end of the legislative/administrative threshold for the application of common law procedural fairness.
Note: this last point was confirmed by Larmer J, in BC Motor.
6. Content of Procedural Obligations (Right to be Heard)
CB 37-53 (Baker (procedural fairness)); 255-258;
274-278; 285-303; 308-406; 411-421; 425-440.
We turn now to this question: if procedural obligations are triggered, what does the decision-maker have to do? Or more concretely, what is the content of these
procedural obligations?
If Your Procedural Obligation Comes from a:
(1) STATUTE Procedural obligation = whatever statute says is the content of the duty, ‘whatever the statute says is the content’
However, exceptions, determinations of whether statute is complete code, or whether room for CL supplementation
(2) COMMON LAW The content where these sources apply is broken down into 2 broad classes of procedural rules:
(1) Right to be heard
(2) Right to an impartial/ independent decision-maker
The issue however, is that the precise rules coming from Common law, Charter or BoR varies from case to case according to
the circumstances!
With respect to the right to be heard, you must start with the Baker considerations:
o Baker gives you a (non-exclusive) list of considerations that tell you at least something about content.
o Specifically, the Baker test suggests whether the content will be robust or not.
o (It actually tells you a little bit more if your trigger is legitimate expectations: with legitimate expectations, the
content of the procedural obligation is generally what was promised in the procedural promise that gave rise to the
legitimate expectation in the first place. If the promise was substantive, you will not be able to enforce it directly, but
at the very least, it may lead to enhanced or more procedural fairness.)
BAKER CONSIDERATIONS: Start here—as it provides a non-exhaustive list of considerations that tell you about content.
Baker v Canada (Min of Citizenship/Immigration) 1999 SCR:
HELD: Despite informal notes, SC accepted they were sufficient to act as reasons for decision
SIGN: Lays down “Content of Duty of Fairness” (STEP 1) (after Knight Steps)
(1) Factors affecting content of the duty of fairness, to determine a general level of procedural fairness:
Nature of decision and process followed in making it:
 The closeness of admin process to judicial process should indicate how much of those governing principles should
be imported into realm of admin decision making Knight. More process provided for, the more likely it is that
procedural protections closer to trial mode model will be required by duty of fairness.
Nature of stat scheme
Greater procedural protections will required where statute is silent (on procedures)
Importance of decision to individual affected:
The more important the decision is to lives of those affected and the greater its impact on that person, the more
stringent the procedural protections
Legitimate expectations of parties
Procedures chosen by tribunal:
Respect the choices of procedure made by agency itself. Baker SCC acknowledge that sometimes courts should
be deferential to agencies procedural choices.
NOTE: Some factors suggest a stricter requirement under a duty, while others suggest a more relaxed requirement. In
Baker- On balance, the duty of fairness was more than simply minimal and required full and fair consideration of the
issues, those affected must have a meaningful opportunity to present evidence relevant to case and have it fully and fairly
(2) Legitimate Expectation and Convention: Baker argues that Convention on Rights of Child gave right to legit
expectation thus when H/C was being made, specific procedural requirements that would normally be expected would
apply pursuant to Convention. This failed.
(3) Participatory Rights: Issue was whether failure to provide oral hearing/notice to children is inconsistent with
participatory rights required by duty of fairness.
 Baker circumstances required full and fair consideration of issues, however oral hearing is not always necessary for
H/C decisions.
 Flexible nature of duty of fairness recognized that meaningful participation can occur in different ways in different
(4) Provisions of Reason: It is now appropriate to recognize that in certain circs, the duty of PF will require the provisions of
a written explanation for decision.
 Baker argues duty in these circs-requires reasons be given by decision maker (failure to do so = breach of principles of
 General CL duty of fairness does not require decisions be provided for admin decision. BUT reasons foster better
decision making, (officers notes were sufficient)
(5) Reasonable Apprehension of Bias: PF requires decisions be made free from reasonable apprehension of bias and by an
impartial decision maker
 Duty to act fairly in a manner =/ reasonable apprehension of bias applies to all persons who play significant role of
decision making, whether subordinate or final decision maker (Baker= immigration officer)
 Test for Reasonable Apprehension of Bias: Laid down in Committee for Justice and Liberty v NEB 1978: “What
would an informed person, viewing matter realistically and practically conclude?”
 In Baker- a well-informed member of the community would perceive bias when reading Officer’s comments.
(STEP 2) (After Knight steps, after Baker considerations): having decided a general level of procedural fairness, court will
decide from a range of possibilities what specific procedures are required:
Opportunity to give Evidence
Right to Counsel
Opportunity to Participate
Oral reasons
Written reasons
When it comes to an examination, you do need to explore which procedural entitlements are owed and whether they
have been met, but if you pay no heed to the sorts of circumstances that give rise to these specific entitlements, you
may end up with an implausible laundry list of procedural rules that you say should apply when they really don’t.
LEGACY: Admin decision making is now seen as falling somewhere on a spectrum between quasi and legislative decision
making, with procedural entitlements varying according to placement on spectrum.
 Once X rights/privs/interests are at stake, duty applies and the question then becomes one of degree.
 Baker Analysis has become an integral part of the framework for assessing procedural context of fundamental justice
decisions engaging Section 7 Charter.
 Suresh v Canada 2002 SCR: reasoned that because fundamental justice demanded, at minimum, compliance with
common law procedural fairness, it was appropriate to look to the factors discussed in Baker to inform its analysis of
procedural safeguards required by s.7.
Suresh v Canada (Minister of Cit and Immigration) 2002 SCR:
FACT: Minister issued security certificate, deporting A from Canada. Opportunity to make written submissions and file
material with minister, but lack of report = unable to respond to it in any capacity.
Issue: Are procedures for deporting set out in Immigration Act Constitutionally Valid?
RATIO: Court must determine procedural protections to which an individual is entitled under s.7 Charter, and in doing so will
consider CL approach to PF via L’Heureux Dube Baker: 5 Factors to determine general level of PF:
(1) Nature of decision to deport: resembles judicial proceedings: while serious nature, decision is one where discretion
must attach.
(2) Nature of statutory scheme: suggests need for strong procedural safeguards
(3) Appellants interest in remaining in Canada are significantly high, not being his status of Convention refuge, but also
because he may face torture if he returns home. Therefore this heightens procedural protection under Act.
(4) Procedural Fairness via Article 3 CAT: prohibits deportation where there are substantial grounds for believing person
would be in danger (= legitimate expectation, thus right to P safeguard, raising burden)
(5) Choice of procedure by agency: deference to minister must be reconciled with elevated level of procedural protection.
HELD: Weighing factors, SCC finds procedural protections required by s.7 do not extend to level of requiring Minister to
conduct full oral hearing, or complete judicial process. However, more procedures then required by Act are needed:
o Refugee must be informed of case to be met and opportunity to challenge, Minister must provide written reasons
(articulating substantial grounds that torture will not occur.
o These procedural protections need not be invoked in every case of deportation of a Convention refugee under s.53(1)
Prehearing Issues Include: Issues of notice, Claims to Pre-Hearing Discovery/ Discloser of evidence to be relied on and Delay
in process of Admin Proceedings.
Nature of Actual Hearing includes: Should hearing be oral/written/both. If Oral is cross examination available. What types of
evidence can decision makers rely on. To what extent must a decision maker reveal evidence to affected person. What duty to
provide reason.
[1] NOTICE Necessary because without it, procedural rights are not exercised effectively.
HOW means of giving notice is specified by legislation, especially when developed by some agency affected a large
indefinite number of individuals
Large Indefinite number of Individuals = public forum notice:
Re Hardy and Min of Education 1985:
SIGN: unreasonable that every resident in school district be personally given intent to close, rather sufficient that closure
be made known throughout district generally, thus =reasonably expect it to come to intention of interested parties=
opportunity to fairly present side before final decision is made (McLaughlin J).
Re Central On Coalition and On Hydro 1984:
SIGN: Where notice has to be spread to large number (Southern ON), newspaper blast not sufficient as it did not reach the
large minority in rural section, regardless of conscious effort made.
Law Reform Comm of Canada, working paper No.25: Indp Admin Agencies 1980
GOAL: independent agencies should experiment with innovative notice techniques to create a balanced picture of the issue.
CONCLUSION: Agencies compile a list of persons and grounds known to be of interest and provide them with
comprehensive abstracts of issues coming before the agency. Would augment more universal communication via mass media.
EXAMPLE: The CRTC has an extensive list to which anyone can add their name to, notice is sent to everyone on their
mailing list.
Mail= Insufficient as there are risks (Dated sent/received):
Re City of Win and Torchinsky:
FACT: property assessments, Act prohibits appeals after specified date. T received assessment in mail on the specified date
of appeal. City sought to enforce prohibition due to date
HELD: Court dismissed claim because choice of messenger, 10 day period was directory not mandatory
Notice must give enough Info about Issue to enable party to respond:
R v. Ontario Racing Comm exparte Taylor 1970
HELD: commission appealed but this was dismissed because of a clear failure to disclose information
When should notice be given and what are the limits on its content and wording:
Canada AG v Canada (Com of Inq on Blood System in Canada- Krever Com) 1997 SCR:
o 1,000 Canadians infected with HIV and many more with Hep C. Part I of the Inquiries Act, RSC 1985 appointed judge
as a Commissioner to review and report on blood system in Canada. Goal was fact finding, not a witch hunt!
o Act directed Commission to review management, organization operations etc.
o Announcement via publish in newspapers across Canada, all interested parties were provided opportunity to apply for
standing before inquiry, 25 were granted.
o The Order authorized Commissioner to adopt procedure he may consider reasonable, and own rules and procedure:
o The commissions rules of procedure provided that the commission’s counsel would question witnesses first. Further,
(1) all P’s with standing and all witnesses had right to counsel at all stages. (2) Each P had right to have counsel cross22
examine any witness who testified. (3) All P’s had right to apply to have any witness called. (4) All P’s had right to
enter documents and right to introduce own evidence. (4) All hearings held in public. (5) Special rules for confidential
and privileged documents, especially if evidence of misconduct.
Notice of Dec 21 naming parties, recipients given until Jan 10 to announce how they would respond to notice in final
submission. Many brought App for JR, FCA quashed 1, but dismissed the rest (45). Mandate required commission to
give notice to potential misconductees.
ISSUE: What limits if any, should be imposed upon findings of commission of inquiry / report? Should different
limits apply to notices warning of potential findings of misconduct?
HELD: Misconduct should only be made where they are required to carry out mandate of inquiry, thus never intended to be
used as means of finding criminal/ civil liability.
Findings may adversely effect parties because they must be made to define nature/responsibility for tragedy under
investigation = can impact reputation. Thus it is essential that procedural fairness be demonstrated in the hearings of
the commission. Sample principle should be extended to notices pertaining to misconduct required by the Act.
No matter how careful the inquiry hearings are conducted they cannot provide the evidential or procedural
safeguards which prevail at a trial.
Fairness of Notice: required within statute to be issued in confidence, more detail the better for greater assistance to
part. Public cannot find out unless self-inflicted, it required commission to avoid setting out conclusions=
criminal/civil liability.
Challenge to Notice (Procedure): Court held Commission did not exceed jurisdiction because s.13 provides
discretion and nothing he investigated was outside of his mandate
Procedural protections: A argues they interpreted assurances made by Commission during inquiry that he had no
intention of making the type of findings he did, argue tighter evidentiary protections were necessary. Court held s.13
indicated notice would have to be provided to any party who might face adverse finding. (Other parties found
procedure fair). Moreover, other parties (other then A) .
Timing Notice: argue that because Commission waited until last day of hearing to issue notice, their ability to cross
was effectively was hindered. However, court finds notice should be given as soon as feasibly possible, and given
the complexity and size of case, notices could not have been completed without length of time that occurred. This is
all based on the circumstances of each case.
Held: not violation of procedural fairness
2. DISCOVERY/DISCLOSURE (pre trial issues)
STATUTE / CODE RULES Rare for statute/ procedural code to address disclosure, except to provide that tribunal may
issue orders to control its own process or tribunal may make order governing disclosure
CL RULES Degree of disclosure always varies depending on nature of tribunal.
R v Stinchcombe (criminal case) disclosure of all evidence that may assist A, subject only to privilege or relevance
This is not followed however, See May v Ferdale below. Yet depends on circumstances.
Inherent jurisdiction of Tribunals to order discovery where it is necessary in interest of fairness:
Canadian Pacific Airlines Ltd v Canadian Air Line Pilot Ass 1993 SCR:
SIGN: Board has only inherent/ incidental power conferred on its by statute to order discover, thus no inherent jurisdiction
to order discovery. In this case, the provisions relied on did not authorize compulsory discovery order outside the context of a
formal hearing (therefore it looks like there is no room for pre-hearing discovery)
CIBA Ltd v Canada (Patent Medicine RB) 1994 FC [Non-binding on Economic Regs]:
FACT: A seeks disclosure of all doc in Boards possession relating to matter at issue (especially Doc Chairman acted on in
ordering hearing. Argues disclosure should extend to all facets of staff investigation/ all doc in hands of board. Board refuses,
Board acting pursuant to Mandate
HELD: Full disclosure all of possibly relevant info = impede its work from an admin standpoint. Since Tribunal is full
economic regulator, not affecting HR it is not bound by Stinchcomb
RATIO: Law/Policy require that some leeway be given to an admin tribunal with economic regulatory functions, pursuing
May v Ferndale Institution 2005 SCR:
FACT: A= inmate, involuntary transferred by CSC, argues they are bound by Stinchcombe disclosure requirement because
decision = loss of liberty.
HELD: SCC held Stinchcombe principles do no apply in admin context. But CSC was bound by s.27 to give offender all
info to be considered. This was not done thus, deprived and unable to effectively know and respond to case against him.
3. DELAY: (pre trial issue)
UNDUE DELAY in conduct of administrative proceedings could = breach of rules of natural justice or procedural fairness
because it creates prejudice.
o NOTE: It is one of the ground specified in the codification of the basis for review of PEI Judicial Review Act!
o Agencies have limited resources=/ handle caseload
o Waiting for criminal proceedings to be completed (Ie: in Prof Disc Cases)
o Increased tendency of body dealing with complaints to accept complaint even though they are based on conduct occurring
in past.
WHERE/ WHENBlencoe demonstrates that both for the purposes of the Charter and the CL of procedural fairness, delay
had two dimensions in the context of statutory decisions making:
o Delay affects ability of person to respond adequately to proceedings
o Delay in its abuse of process sense
NOTE: Court indicate that the argument was one that would always be difficult to make under Charter or CL, at least where
A was seeking a stay of proceedings as opposed to an order for an expedited hearing.
Blencoe 2000: Court is not convinced that such prejudice can result directly from delay in HR proceedings. It cannot be said
that R’s s.7 rights were violated or that conduct of Commission= abuse of process. However concerns for lack of efficiency
of commission= cost award.
Kodellas v Sask (HRC) 1989 DLR:
HELD: To determine ‘unreasonable delay’ in content of Charter factors to look at: (1) was delay prima facie unreasonable?
(2) reason for delay, considering Complainant and Commission (3) What prejudice/ impairment was caused by the delay.
SIGN: 38-47 month delay between filing and hearing were much greater then time required, delay= prima facie
unreasonable, totally cause by commission, no reasons give and it was clear that it was an institutional problem affecting
NOTE: Consider whether this case would have been decided the same in wake of Blencoe? Seems to be a higher threshold
for s.7 FJ
face to face meeting with the actual decision maker.
TRADITIONAL  Oral hearing was usuall required as an element of natural justice.
CURRENT Emergence of procedural fairness doctrine – presumption in favour of oral hearings disappeared. Oral hearing
cannot be assumed for procedural fairness requirements.
 Nicholson: discretion left to board as to whether hearing be oral/written in context of whether A was acting police officer.
 Baker: SCC confirmed written hearing was sufficient. Legitimacy of other forms (electronic) gaining recognition.
DECISIONS AFFECTING CHARTER RIGHTS: Singh per Beetz J- Oral hearing not a universal component of FJ, but is
required where the issue is of credibility. Wilson J emphasis not so much on lack of oral hearing, but lack of access to the
ministry’s case – she believed oral hearings were not universal requirement of FJ under s.7 – though she did promote its use
in terms of determining credibility.
Claims to oral hearing are situation sensitive in sense that their necessity may depend on the matters that are at issue in the
particular proceedings as opposed to being a feature of all exercises of the relevant statutory power. This is clear from Baker
– where they refused to lay down a general rule.
HR complaints dealt with by methods of inquiry other then a regular hearing:
Master (Ontario agent general of NY) v Ontario 1994:
o 47 sex assault accusations, report done, was not present when 45 witnesses gave testimony. A argues that where
credibility will determine main issues before decision maker vital to A’s career, general duty of fairness/nature
justice require an impartial decision maker to determine credibility by way of full trial permitted witnesses to be
crossed. Using prerogative power, Premier choose to apply investigatory procedure of Directive ‘A workplace Disc
and Harassment Prevention’, procedures permitting a more informed assessment.
o Pursuant to SPPA 1990, no hearing (determining credibility) was either required by statute or law. A given
opportunity by premier to make legal argument however neither investigators nor A were given opportunity to
further reply (from prehearing).
o Masters was aware of all the allegations against him and was provided opportunity to be heard. Requirements of the
duty to act fairly in scope of employer-employee relationship were met.
o Further, lawsuit for wrongful dismissal not open – because master was appointed ‘at pleasure of PM’
Oral hearing where credibility is at issue:
Khan v Uni of Ottawa 1997 CA:
FACT: Student fails exam= fails faculty minimum= required to complete additional semester. Appeals grade to Fac Exam
Comm on ground she submitted 4th book not graded. Committee met without her or notice. Dismissed appeal. Sought JR after
unsuccessful appeal to Uni Senate Committee
Analysis: high standard justice required b/c threatened loss of academic year. PF before Exam Committee pursuant 12.03(b)
required oral hearing because credibility was at issue, and (2) consideration of procedures followed during/after exam and
reasonable inquiries to determine whether these were followed (3) Opp to give correct/contradict 3 factors it relied on in its
decision. These were not followed, therefore she was denied PF. Comm disbelieved A explanation for 4th booklet without
hearing from her (oral hearing) = denial of PF.
HELD: need not show actual prejudice to prove she had been denied PF. She only needed to show that Commission breach
of duty may have reasonably prejudiced her.
OPEN (PUBLIC) HEARING: Where oral hearing is decided, question becomes whether it should be open to public?
SPPA Ontario (The SPPA prescribes minimal procedural rules for the conduct of proceedings of tribunals)
o Pursuant to statute, openness is a matter for tribunal discretion. However s.9 conditions the exercise of that
discretion with a presumption in favour of openness + creates specific considerations forming basis of any decision
to proceed in camera either in whole/part.
Immigration Act 1992: amended to provide all hearings before adjudicator be open to public, with exception where
adjudicator was satisfied that there was a serious possibility of life, liberty and security endangered by reasons of public.
RIGHT TO COUNSEL: Right to representation is generally assumed, provided for in many cases by SPPA s.10
WHEN IS COUNSEL NOT PROVIDED: When representation will serve as an impediment to legislative objective and the
efficient dispatch of a statutory mandate:
Irvine v Canada (Restrictive Trade Comm)1981 SCR: [No absolute right to counsel]
SIGN: Counsel was restricted in course of inquiry because to allow counsel at port of entry interview would basically
entail a mini-trial= unnecessary duplication.
RATIO: Principles of fundamental justice, do not include right to counsel, in routine info gather.
Howard v Stoney Mountain Institution 1985 FCA: [s.7 does not= create absolute right to counsel in all proceedngs]
FACT: Officer held s.7 does not create a ‘new wave of rights’, therefore not persuaded that absence of counsel= unfair,
appeal dismissed.
ISSUE: Is it just that R continuing hearing of certain charges against A under Act in the absence of a lawyer?
RATIO: Enactment of s.7 does not create absolute right to counsel in all proceedings. What is required is opportunity to
present case adequately. Right to counsel depends on circs of case, its nature, gravity, complexity and capacity
NOTE: The whole of A’s 267 days of earned remission was in jeopardy, this alone suggests need of counsel, thus refusal
of A’s request for counsel= refusal of opportunity to which he was entitled to adequately present his defence.
NB (Minister of Health) v GJ 1999 SCR: [3 factors = entitlement to state-provided counsel]
Issue: Where s.7 of Charter required mother to be provided with counsel for purposes of resisting application by Child
Welfare authorities for renewal of an order placing 3 children in custody of state.
HELD: In circumstances of the case, A right to fair hearing required she be represented by counsel.
This has to do with 3 factors:
(1) Complexity of proceedings (2) Seriousness of interest at stake (3) Capacity of Appellant.
WHAT Party is entitled to know what evidence and representations have been given and are entitled to adequate
opportunity to respond:
Kane v Board of Gov UBC 1980 SCR: UBC professor is suspended when he was not there. Board under obligation to
postpone for further consideration of matter until A can attend (where disclosure would be necessary for official notice,
evidence and cross)
 Chiarelli demonstrates that some limits to access can occur in the name of confidentiality.
 Access to Information Act 1985: Exemption from disclosure in content of a freedom of information request
 Canadian Evidence Act 1985: Crown/Exec privilege codified, applicable to proceedings before admin agencies.
 Access to Agency Info: Access to problem to medical disclosure
 Identity of Source Information:
o Gallant v Canada (Dep Commission, CSC) 1989 FCA: Identity of 6 informants whos lives wold be in danger. Issue
was whether the circs were sufficient to relieve CSC from obligation to give a more detailed notice. HEL- Yes,
Parliament could not have intended when he gave Commission/delegates the power to transfer, that they should be bound
by rules of PF even when application of rules endangered lives of others. CSC
Commercially Sensitive Information: possibility of disclosure of info about business that may generally be regarded as
confidential and may give competitors advantage The Anti Dumping Act 1970: where info= confidential, relation to bus,
info shall not be made public to be available for any competitor
 Staff Studies: Disclosure of material created by agency itself, via staff guideline:
o Franson 1979 Law Reform Report: Reports prepared by staff are valuable source of information, info is of great
interest to both participants in administrative matters and to general public. Thus entitlement to see in admin process are
WHAT What procedure should agencies use for fact finding, especially for facts that are different from facts that usually
concern courts?
RULE: Agencies are not governed by rules of evidence used by courts unless some statutory provision requires them (this is
rare). This is discretionary.
SPPS s.10.1: conditioned cross-exam being ‘reasonably required’ for a full/fair disclosure of all matters relevant to issues in
the proceedings.
Innisfil (Township) v Vespra (Township) 1981: [Defined ‘’reasonably required]
RATIO: Where citizens are involved and statute affords them full hearing, one should expect right to cross. Appeal allowed.
 The procedural format adopted by the admin tribunal must adhere to the provisions of the parent statute of the Board.
 If tribunal proceeds to determine (above its mandate) the ights of the condentding parties before it on the traditional basis
in terms of a tradition setting of adversary, the Board will take on something like that of the traditional court.
 Appellant has right to cross examination - this is conferred to it by the municipal act (in the case).
Re County of Strathacona No. 2 and MacLab 1971:
HELD: Refusal or limitation on right of cross examination does not always require court to quash an order made in
proceedings. If afforded equal effective method of answering the case made against him, in other words, given a fair
opportunity to correct or controvert statements to his prejudice, the requirements of natural justice are met. The importance
of cross examination will vary with the nature of the case being heard.
 Many statutes provide requirement to provide reasons, before Baker CL was reluctant to impose on stat or prerogative
decision makers these obligations
 Baker, SC did not hold that all exercised of stat or prerogative involve giving reasons, but in this it was obvious that
interest at stage triggered obligation.
IMPORTANT QUESTION: Where does the ‘threshold’ of ‘sufficient importance lie’ to trigger reasons?
Content of the Duty to give reasons:
FORMULA: If decision is challenged, court will test adequacy of reasons by asking whether in light of issues in dispute and
arguments and evidence advanced, the tribunals reasons are ‘sufficient’ to enable the court to effectively scrutinize the
The following judgment of FCA is evidence that courts are giving Baker reasons requirement a substantive reading,
although in a setting far removed from Baker:
VIA Rail Canada v National Transportation Agency 2001 FCA:
ISSUE: Appeal from decision of Agency holding that a portion of VIA special passenger tariff = undue obstacle to mobility
of disabled
DECISION: Agency report finds that with sufficient notice VIA= accommodate putting onus on attendant to care for them is
an obstacle to mobility of persons. But Agency did not articulate reasons for finding tariff= obstacle to mobility.
HELD: Act imposes no duty on Agency to gives reasons, however s.39 NTAGR does impose duty in writing. The duty is
only fulfilled if reasons are adequate. Appeal allowed.
RATIO: determines meaning of ‘adequacy’: those that serve the functions for which the duty to provide them was imposed.
 Obligation for ‘adequate reasons not satisfied by:
 Reciting submissions/ev from conclusion
 Agency must balance all factors against one another
 Provide sufficient insight into reasoning process that followed
BREACH OF DUTY TO GIVE REASONS Where body fails, question becomes whether legal consequences of breach
o When legal duty to give reasons exists, court will generally regard duty as mandatory, when they fail, court ordered
7. CONTENT OF PROCED OBLIGATIONS: (Unbiased Decision-maker)
CB 441-556
The second broad class of procedural obligations associated with the common law, Charter s.7 and the Bill of Rights is the right to an unbiased dec maker.
Here the material deals with bias stemming from individual conduct (attitudinal bias or prejudgment; pecuniary interests; past conduct etc.). Here too there are
tests for exactly what rule barring bias applies to a given administrative decision-maker. There is not just one universal standard, especially when it comes to
alleged prejudgment or attitudinal bias. These readings will help you understand what the tests are and where they apply.
WHAT The Right to an unbiased decision-maker is the 2nd broad class of natural justice or procedural obligations
associated with the Common Law, Charter and Bill of Rights
TESTS What rule barring bias applies to a given admin decision, however, there is no one universal standard especially
when it comes to alleged prejudgment or attitudinal bias.
MAXIM: Nemo Judex: ‘no one should judge in their own case’
NO SUBJECTIVE INQUIRY: Courts always avoid inquiry into actual state of mind but will ask whether the particular
situation of decision-maker is such as to give rise to a sufficient risk that impermissible degree of bias will exist.
POLICY: justification for refusal to investigate- public is entitled to have confidence in impartial resolution, confidence is
undermined when fact are such as to create impression in public mind that decision-maker is too predisposed toward a particular
outcome R v Sussex Justices 1924
LAW AT PLAY: CL has been supplemented by constitutional Section 7 and quasi-constitutional BoR 1(a)2(e) norms and
these may not only result in disqualification of adjudicators but also the disregarding of statutory authorizations for otherwise
disqualifying bias’ and indeed striking down regimes.
GENERAL TEST: “reasonable apprehension of bias”
Committee for Justice and Liberty v National Energy Board 1978 SCR:
RATIO: Per de Grandpre: Apprehension of bias must be a reasonable one, held by reasonable and right-minded people.
Test: ‘what would an informed person, viewing the matter realistically and practically—having thought the matter through—
NOTE: The Canadian Courts have not all been consistent in the knowledge that is to be attributed to the reasonable bystander:
R v Libber 1991 SCR: Lamer CJC stated test for institutional bias was based on “fully informed” reasonable people
(This was a constitutional case)
Old St. Bonifice Res Ass v Winnipeg City 1990 SCR: Sopinka used “reasonably ‘well informed person’ to describe
appropriate vantage point;.
Energy Probe v Canada (Atomic En Control Board) 1994 FCA [general list of interest giving rise to disqualification]
RATIO: kinship, friendship, partisanship, particular profession or business relationship with on of the parties, animosity
towards someone interest, predetermined minds as to the issue involved etc.
Question of Degree. The disqualifying conditions can be broken down into four categories:
ANTAGONISM during hearing by a decision-maker toward party, counsel, witness
ASSOCIATION between one of the parties and a decision-maker
INVOLVEMENT by a decision-maker in a preliminary stage of the decision
ATTITUDE of a decision maker toward the outcome
Additional Pecuniary and Other Material Interests
(1) Antagonism ‘unreasonably aggressive questioning or comments about testimony’:
Baker: evidence of antagonism was found in the memorandum on which the decision was based (therefore antagonism
can be a problem in written or paper hearings.) I.e. CAPITAL LETTERS, EMOTIONAL OUTBURST.
(2) Association:
Covent of Sacred Heaty v Armstorng Association: Material interest from decision made by the board as wife was party
seeking decision.
CNG Transmission v Canada (NEBoard) 1992 FC:
Fact: Meeting between reps of 1 party to proceedings and rep of Board, ongoing proceeding was discussed
HELD: Encounter produced a reasonable apprehension of bias, a finding that was reinforced by the fact that, among the
representatives of the party was a formal chair of the board.
(3) INVOLVEMENT: Earlier stage of decisions
Committee for Justice, Lib v National Energy Board 1978 SCR [Test of Bias by association]
Fact: Where Y participated in planning stages of creation and economic and financial feasibility (which he was part of)
were involved in the very decision to pursue pipeline via application to board. Y had interest.
HELD: fact that the proposed application was later refined or revised did not make it one which “Y” was s stranger to
before coming to court (he had a solid stake)
EXEMPTION: Statutory Authorization: one of the most common responses to an allegation of bias of prior involvement
(there are limits on the ‘stat authorization’ defence): Overstepping authority
Brosseau v Alberta (Sec Commission) 1989 SCR: [implied auth from stat, if within authority, bias not found]
FACT: A alleges chair of Commission is disqualified from sitting in an adjudicative capacity because he participated
in investigatory level, thus creating a reasonable apprehension of bias. The general principle is that this is not
permitted as bias would destroy integrity of proceedings.
SIGN: There are exceptions existing where overlap of functions which occurs has been authorized by statute.
But to disqualify the Commission from hearing matter, some act of Commission going beyond its statutory duties
must be found: we should ask
(a) what statutory authority was investigated direct
(b) was investigation directed solely at initiation of Chairman
(c) was investigation confined to docs on file with Commission
HELD: Commission must have implied authority, and no evidence exists that his participation went beyond these
bounds. Clear from empowering legislation, that Commission is not meant to act like court thus, certain activity which
might otherwise be considered ‘bias’ form integral part of its operation.
RATIO: Certain activity which might otherwise be considered bias ‘form part of’ integral operation authorized by
statute’ , therefore no bias.
E. A. Manning Ltd v. Ontario Securties Commission 1995 ONCA:
Fact: OSC considered actions of 10 securities dealers to be improper sale practices and issued 2 notices of hearing
against the applicant. Ontario Court of justice declared policy statement to be without statutory authority. Commission
appealed decision and issued press release reiterating concerns addressed in policy statement. Applicant applied for an
order in nature of prohibition to prevent the OSC from proceeding with the 2 hearings:
HELD: OSC did act outside of stat authority by adopting policy= obvious app of bias.
(4) ATTIDUDE BIAS: attitude of a decision maker toward the outcome
Pain v UofT 1981 ONCA: [deals with prior involvement and attitudinal bias]
FACT: UNI awarding tenure via Committee of ongoing peer evaluation, 4 members collect and asses and make
recommendation based on their own views. P was denied tenure, after one of the tenured member had made the negative
assessment - applies for JR. It is clear that the presence of this member constituted unfairness and certainly made the
likelihood of unfairness apparent to any who knew or became aware of the member’s previous statement.
HELD: There is nothing inconsistent with the concept of judgment by one’s peers in a requirement that proceedings must
be fair. This is not the case where the Court should intervene to substitute its own views for those of the committee.
Note: Standard: Demanding demonstrations of ‘manifest unfairness’ it Van Harten suggests that the ONCA appears
to be adopting a higher threshold for judicial intervention than is normally applied in procedural fairness cases.
This is also evident in HRC adjudications following:
Great Atlantic Co of Canada v Ontario (HRC) 1993 ON:
Fact: X (law prof +advocate for sex discrim) elected to the HRC. . She is 1 of 120 ppl who filed out complaint with the
commission regarding York U sex discrimination currently at issue with commission. X wrote to Commission
requesting her name be withdrawn from list of complainants in Osgood Hall Complainant.
ISSUE: Does X involvement in proceedings, create a ‘reasonable apprehension of bias’?
TEST: ‘Reasonable/right minded person who was well informed as to issue (de Grandpre J NEB 1978)
HELD: There is a reason/reasonable apprehension of bias of hearing issued. X went beyond position of advocate and
descended personally as a party to the very arena over which she has been appointed to preside.
(5) Pecuniary [financial] and Other Material Interests:
WHAT The Common law has always directly disqualified matters of adjudication where decision maker has a direct
pecuniary or other type of interest:
Covent of Sacred Heart v Armstrong Point Ass 1962 MACA:
HELD: Decision of Board about zoning quashed because board member was co-owner of residence in area that was
‘enhanced’/ protected by decision.
EXCEPTIONS: There are de-minimus exceptions- many judgment question “Whether directness is indeed the appropriate
standard to apply in deciding whether a material interest is disqualifying and, if so, what constitutes a ‘direct’ interest?:
Energy Probe v Canada (Atomic En Con Board) 1984 FCA: [even where interest is indirect, it might be relevant
and still be subject to normal test for identifying disqualifying bias]:
FACT: AECB proposed new opp license for station operated by ON Hydro, Energy Probe objected to participation by
one board member: Olsen, who was alleged to be president of company that supplied to power plants station. AECB
rejected this objection, renewing license. Energy probe challenged this decision on basis of allegation of material
ISSUE: (1)Does doctrine of fairness Nicholson apply to licensing function of AECB, if so, will it include requirement
of lack of bias on part of board member?
HELD: Nicholson DoF includes requirements for unbiased decision maker because licensing function is admin not
ISSUE: (2) Did Olson have pecuniary interest in outcome?
HELD: Direct pecuniary interest, no matter how trivial = bias (de Smith 1980). Interest was alleged b/c of business
relationship (because of past sale), however no direct pecuniary interest is found. Interest was indirect and uncertain thus
far too remote to constitute pecuniary interest (bias).
NOTE: Marceau J did not give ‘direct’ a strict/narrow interpretation. It rather means ‘no too remote’ or ‘not to
speculative’. THUS, presence of immediate possibility to gain directly/indirectly= enough to be bias.
Canadian Pacific Ltd v Matsqui Indian Band 1995 SCR: [ be too speculative]
ISSUE: SCC rejected assertion of disqualifying pecuniary bias against members of Indian band being called upon to
adjucidate on appeals by non-Indians against tax assessments levied against them in relation to their use of land on
HELD: Per Iacobucci J: ‘there is no personal and distinct interest on part of tribunal’. Conflict between interest is too
speculative, therefore no reasonable apprehension of bias.
Old St. Boniface Res Ass Inc v Winnipeg (City) 1990 SCR:[What constitutes disqualifying bias varies with context]
FACT: Municiple councilor involved from start, spoke to finance committee, then joined committee
HELD: Rules of justice/fairness are variable standards, there content depends on the circumstances of the case.
RATIO: Statement by individual members of Council which may give rise to appearance of bias, will not satisfy test
unless court concludes they are expression of final opinion on matter, which cannot be dislodged.
Newfoundland Tele Co v NFLD (Board of Commission of Public Utilty 1992 SCR: [board member standard where
he has already taken position=/. Flexible approach by courts]
FACT: Commissioner elected as states she intends to play adversial role of Board ‘championing consumer rights’. When
statute says commissioners cannot be employed or have interest in public utility. A argues reasonable app bias
HELD: To disqualify a member- X must establish there has been a pre-judgment of the matter to such an extent that any
representations to contrary would be ineffective. Viewed cumulatively, statement inevitably led to conclusion that a
reasonable person appraised situation would determine a reasonable apprehension.
RATIO- Members who perform policy formation function should not be susceptible to a charge of bias simply because
of express of strong opinion prior to hearing. This does not mean there are not limits, but it confirms courts flexible
approach. Here, went over limits.
Pelletier v Canada (AG) 2008 FTR:
FACT: Commission hired SCJ mandated to investigate/report on issue. Making public comments, P asked him to step
down, dismissing request and issues report. A sough JR of commission’s report and set aside because of reasonable
apprehension of bias. Argues that judicial experience should force him to continue to hold same standard of judicial
neutrality, regardless that his capacity shifted to Commission role. Court argues he was not sitting judges, therefore his
impartiality need not bee assessed using strict application of reasonable apprehension of bias.
TEST used: ‘Flexible’ application of the apprehension of bias test adopted from Committee of Justice/Liberty, de
HELD: determinative test is whether a ‘well-informed person, viewing matter realistically/practically, would
conclude there is a reasonable apprehension of bias.
Court satisfied test has been met, as a well informed person would find Commissioner’s statement=
prejudgment of issues under investigation, thus not impartial.
Independence & Unbiased Decision-making
WHAT Use of independence reflect a concern about the integrity of agencies as ‘institutionally independent’
WHERE: Challenging lack of independence is facilitated by the employment of the expression ‘independent and impartial
tribunal’ in BoR 1(f) and Charter 11(d)
Alex Couture Inc v Canada (AG) QCA 1991: [Guarantee of JI, Outlines diff bw impartiality and indep from Valente]
SIGN: To decide whether guarantees of judicial independence have been respected 3 essential conditions must be met:
“Valente Principles”: (Valente v. R 1985)
a) Security of tenure: most important aspect of JI (securing against interference by executive
b) Financial Security: right to salary and pension should be established by law and not be subject to arbitrary
interference by executive in matter that could affect JI.
c) Institutional independence of the tribunal with respect to admin decisions bearing directly on exercise of its
judicial functions
Valente Considers the meaning of an "independent and impartial tribunal" guaranteed in section 1 l(d) of the Canadian Charter
of Rights and Freedoms. 2 The issue was whether a provincial judge sitting as the Provincial Court in Ontario in December
1982 was an independent tribunal within the meaning of s. 11 (d). The focus in Valente was on the relationship of the judges
and the Provincial Court to the executive government of Ontario, through the Ministry of the Attorney General. Court was
clear that independence and impartiality were separate considerations.
Independence v Impartiality (Per Alex Couture):
 Judicial independence is closely related to guarantee of impartiality, but they are separate and distinct in terms/values:
o Impartiality: Refers to state of mind/attitude of tribunal in relation to issues/parties in a particular case. The terms implies
absence of bias (actual/perceive) EX- double functions (layperson as member of commission and tribunal= infringement
of impartiality.
o Independence: In s.11(d) Charter reflects traditional constitutional value of JI, implying not merely a state of mind in
actual exercise of judicial functions, but a status of relationship to others, particularly to the Exec Branch, resting on
objective conditions.
When is it appropriate to assess institutional independence?
When is it appropriate to assess institutional independence?
Canadian Pacific v Matsqui Indian Band 1995 SCR [Confirmed application of Valente outside of constitutional context]
o Band bylaw created 2-tier internal appeal structure: court of revision & assessment review committee.
o Canadian Pacific questioned both the appearance of impartiality of the members and the institutional independence of the
appeals tribunal, the latter on the basis that the tax assessment appeal tribunal members were not assured they would be
paid, lacked security of tenure, and were appointed by the Band Chiefs and Councils whose interests they represented.
ISSUE: Whether CPs application for JR should be struck on basis that company has not exhausted its remedies available under
Band by-law. The by-laws ultimately included an appeal to the Federal Court.
RATIO: Held - Obligation to exhaust available remedies under by-laws, this obligation being subject to the ‘principle of
natural justice that party should receive hearing before tribunal which is not only independent, but also appears independent.
Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this
Modification of Valente principles: for admin tribunals:
o The requisite level of institutional indep (sec of ten, fin sec, admin control) will depend on the nature of the
tribunal at issue - the interest at stake and other indices of independence such as oaths of office. 
The question should be:
o Whether a ‘reasonable right-minded person, viewing whole procedure as set out in assessment by-law, would have
reasonable apprehension of bias on basis that members of appeal tribunals are not independent.
HELD: App of Flexible Valente principles= Reasonable/right minded person, would have reasonable apprehension that
members of appeal tribunals are not sufficiently independent.
A word of warning: do not rush to the assumption that independence rules flow from all instances where procedural entitlements
might be owed. It would be wrong, for example, to urge that where a statute creates an administrative regime that you think is
insufficiently independent, common law procedural fairness can be used to attack this arrangement The common law cannot
prevail over a statute. And so, your independence argument would have to be based on a s.7 Charter or Bill of Rights source,
assuming these are even triggered.
CB 557-603; 607-610; 617-643
Defined: some decisions of administrative agencies are made in personal way: individual makes a decision and takes
responsibility for it. However, other decisions are the product of institutions and institutional processes. The sheer volume
of these types of decision and their range and complexity. They may demand a large staff and arrangement for dispersal.
o PROS OF INS DEC: allow for large volume of decisions and opportunity to establish internal checks and balances;
specialization amongst staffers; sharing of expertise, opinion and perspective.
o CONS OF INS DEC: Bureaucratic in nature, especially large possibilities for anonymity, loss of authority by senior
levels, inconsistency etc.
o OBJECTIVE: To design procedures that combines strength of both individual and institutional decision making.
‘delegata potestas non potest delegari’= one to whom power is delegated cannot himself further delegate that power
Willis 1943 Non Delegation:
Deals with extent to which authority may permit another to exercise a discretion entrusted by a statute to itself.
Where authority named in statute has and retains general control over it, this is within the maxim, however where ‘subdelegate’ X has substantial degree of control over actual exercise of discretion so entrusted and it can be said to direct its
own mind to it, there is in law ‘no delegation’
REALITY There exist many circumstances where sub-delegation is permissible.
ISSUE Sub-delegation only becomes important when certain functions that are sub-delegated offend procedural rules
o EXAMPLE: issue of large boards who are asked to make decision consistent, while at same time they sit to hear similar
Vine v Nation Dock Labour Board 1957 HL:
FACT: Board has express power to delegate function to local dock board. Discipline committee of local board ordered
discharge of A, A brought action for dec that action of committee is void because the local board has no power to delegate its
disciplinary power.
HELD: Duty in this scheme is too important to delegate unless there was express power. The disciplinary powers, whether
judicial or not cannot be delegated. Non-entitlement to pay, suspension, dismissal must be a step taken by the board and not
be a delegate.
Morgan v Acadia Uni 1985 NS SC:
FACT review of disciplinary decision, statute provided board of governors power carry out resolutions, by laws etc for the
maintenance and discipline of students. The board delegated its responsibility for discipline to the dean of students.
HELD: Very nature of the duty required by scope and objects of legislation is such that a delegation be envisioned in
interpretation the section. It would be impractical and inappropriate to consider otherwise. Delegation to dean was fair and
Deciding Without Hearing:
PRINCIPLE: only those members of an agency who hear particular case may decide it, an another aspect of duty of fairness
RATIONAL: Person is denied an adequate opp to influence the decision if they are unable to address those who
make/participate in make the decision. Thus= breach duty of fairness for member of hearing panel who is unable to attend for
part of the hearing to later participate in decision making process.
In Canada, while court do not require power to be delegated expressly by minister to civil servants, they continue to find that
some exceptions may require ministers personal decisions:
Suresh v Canada (Minister of Cit and Imm) 2002 SCR:
SIGN: Court demands minister personally provide reasons when making deportation order of a person ‘likely to suffer’
torture on return to his country.
Jeffs V NZ Dairy Board 1967 NZPC:
FACT: Board has general power to govern production/ marketing of milk/ zoning for supply arrangements. Zoning
committee was established by board to hear issue of zoning (3 member panel) to investigate and report back to board.
Committee decided to proceed with public hearing, heard evidence, wrote report. Board accepted recommendations.
HELD: Clear from Board resolution appointing committee that board did not delegate to committee right duty of deciding
zoning applications. Committee was not expressly authorized to hold public hearing, or collect evidence, thus operated
beyond scope. Board failed to hear interested parties as it relied on committee – they were under obligation to do so in order
to discharge its duty to act judicially in the determination of zoning applications.
Consultation Among Agency Members:
WHAT Whether and to what extent does the duty of fairness preclude the members of an agency panel who heard a case,
from discussing it with other members of agency after hearing has ended, but before they have rendered their decision:
International Woodworkers of Amer (union) v Consolidated-Bathurst Ltd 1983 SCR:
FACT: Union application to Labour Relations Board (large) for determination. Board had developed a test for imposing a
duty, 3 person panel hearing, at conclusion discussed with other members of ‘full board’ and gave decision upholding
existing test but in favour of applicants. Application for JR for improper decision.
Analysis: Decision making has to turn on policy consideration, thus after deliberating, any panel of Board contemplating a
major issue may, through Chairman, cause a meeting of all Board members to be held. This ‘Full Board” meeting is limited
to policy implications of draft decision.
HELD: Majority Per Gonthier: No evidence exists that particular meeting was used to impose any given opinion upon
members of panel. The rules of natural justice must take into account institutional constraints faced by admin
tribunals who are created from increased efficacy of administration of justice. Discussion with colleagues does not
constitute, in and or themselves, infringements on the panel member’s capacity to decide the issues at stake independently.
RATIO: Consultation process in his reconsideration decision, does not violate the audi alteram partem rule provided that
factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to
any new ground arising from such a hearing
NOTE: Institutionalized consultation process will not necessarily lead Board members to reach a consensus but it provides
a forum where such consensus can be reached freely as a result of thoughtful discussion on the issue at hand.
Tremblay v Quebec (Commission des affaires sociales) 1992 SCR:
FACT: Commission decision based on internal consultation process established by Commission to ensure consistency in
decisions. Consultation process not compulsory, only by motion of Pres, done to = carefully reasoned decisions
ISSUE: Is decision of Commission, refusing to reimburse A for certain expenses, contrary to rules of natural justice.
HELD: Fact that Pres can on own motion refer matter for discussion may= constraint on decision maker, because they may
not feel free to refuse to submit questions to the ‘consensus’ table. Compulsory consultation creates appearance of lack of
independent, infringing right to independent tribunal.
Ellis-Done Ltd v Ontario (Labour Relations Board) 2001 [tension btw fairness of process and deliberative secrecy]
FACT: 3 panel board heard grievance, dismissing grievance on first draft, after full board meeting, majority of panel
upheld grievance. A applied for JR alleging change= of a factual nature as opposed to legal/policy change
HELD: Per Binnie J: No direct evidence of improper tampering.
RATIO: Where decision changes after consultation, deliberative secrecy is NOT tampering.
Counsel at Hearing:  Common for tribunals to have a counsel available to advise on admissibility of evidence, procedure or
questions of law that arise during a hearing.
This could lead to challenge for bias on grounds that reasonable observer might conclude someone other than one
statutorily authorized to decide was in reality the decision-maker (where counsel oversteps): Venczel v. Association of
Architects (Ontario) (1990),
Counsel/Staff Preparation of Reasons:
ISSUE: How far can tribunal take advantage of the expertise of their staff, including their counsel in the preparation of the
reasons for decision, without breaching some duty of fairness?
REALITY Strict law have determined that decision must be that of tribunal member. Must be in substance, those of the
tribunal members, not counsel:
Khan v College of Physicians ON 1992 ONCA [Tribunal may seek assistance of counsel in prep of state of reasons]
Facts: Kham argues committee breach duty of procedural fairness by permitting its counsel to play so significant of a role
in the preparation of its reasons for decision as to create a reasonable apprehension of bias.
Held: counsel’s involvement in the drafint process did not impair the integrity of the discipline proceedings. The committee
retained the authorship and avoided any inference that counsel had co-opted or had delegated to him the reason-writing
RATIO: Advice affecting substance does not amount to legal advise, rather its intended to improve quality of reasons by
Committee. But Where counsel is so connected with one of the parties to the hearing an appearance of bias will result
if counsel participates in drafting process. (importance of neutrality). Also where the decision maker is compelled to
discuss with others who are not charged with responsibility of deciding case – independence may be lost.
Agency Guidelines:
Some Agencies make extensive guides to interpretation of enabling statute and exercise of their statutory discretion. They help
to formulate a general and comprehensive approach to a problem without being confined to the facts. They should always be
published and made available to those appearing before the agency.
ISSUE: What extent does the duty of fairness limit the effective use of guidelines  in particular – the tension b/w the ‘due
process’ value represented by the principle that judicial decision makers should be independent AND the ‘bureaucratic value’
that, as government institutions responsible for delivery of public programs, admin agencies should adopt measures to ensure
their decision are coherent, thoughtful, an consistent.
EX: Immigration and Refugee Board of Canada: Guideline on Use of Chairman 2003:
Chairman has stat authority to issue guidelines and to identify decision as jurisprudential guides to assist members in
carrying out their duties.
They are complementary tools, the purpose of which is to promote consistency, coherence and fairness in the treatment of
cases at the Board.
4 Circs exist where Chairman can consider exercising his authority to issue a set of guideline: (1) to address specific legal
issues (2) provide guidance on question of mixed fact and law (3) to codify exercise of discretion (4) to provide guidance
on procedural issues.
External consultation shall also take place to the extent of which shall be determined at discretion of Chairman
The guidelines remain in effect until Chairman revokes them
Although not binding, members are expected to follow guidelines, unless compelling or exceptional reasons exist to
depart from them
Thamotharem v Canada (Min of Cit and Im) 2008 FCR
ISSUE: because guidelines issued by Chairman of board do not have full force of law, does Guideline 7 unduly fetter RDP
members discretion to determine for themselves, case-by-case, the order of questioning at refugee protection hearings?
HELD: Language in s.7 expressly permits members to depart from standard order of questioning in exceptional cases, thus
Court should be slow to conclude that members will regard themselves as bound to follow the standard order, in absence of
clear evidence to contrary.
NOTE: The fact that some members may erroneously believe that 7 removes their discretion to depart from the standard
practice in exceptional circs, this does not warrant invalidating the Guideline.
Substantive Review Materials
S & F, chapters 9, 10 and 11
9. Backdrop to the Standard of Review Analysis;
10. Evolution of the Standard of Review Analysis;
11. The Current Test
9. Backdrop to the Standard of Review Analysis
CB 673-677; 698-700; 706-719; 804-817 (up until Border)
We shift to the second major issue area in administrative law: review on “substantive” grounds. Basically, substantive errors are errors of fact, law or discretion,
although these are sometimes labeled in different ways.
In this part, you’ll soon learn that simply looking at a decision and saying that it reflects an error of fact (a misapprehension of the facts), of discretion (a wrong choice
or outcome) or of law (a misconstrual of the law) is not enough. That is because substantive errors are all subject to what is known as the “standard of review”, a very
difficult and complex area of administrative law.
Notice that we do not mention standard of review in our discussion of procedural entitlements. That is because procedural fairness does not require this “standard of
review analysis” – it is always assessed on a “correctness” standard, with any question of deference left to tests such as that set out in Baker. So please do not confuse
the approach you apply for “substantive review”, using a standard of review test, with that which you apply for “procedural review”, where you do not employ this
same test.
Substantive Grounds of Review:
WHAT Second form of admin review, Substantive errors come from errors of law, errors of fact and errors of discretion
Errors of FACT= misapprehension of facts
Errors of DISCRETION= wrong choice/outcome
Errors of LAW= misconstruing the law
ROLE OF COURTS Called on to review the interpretation/application of a statutory provision by an administrative decision
Privative [exclusionary] Clauses:
WHAT Grant exclusive jurisdiction over subject matter, via a declaration of finality, prohibiting any court proceeding
RULE OF LAW Do no sit comfortably within Dicey/Wade rules of law: must at all costs be prevented from being sole judges
of the validity of their own acts.
PARLIMENTARY SOV Sit well with doctrine. Unambiguous clauses demonstrate legislators intent to oust courts from
supervising actions of admin decision makers.
INTERPRETATIONS: Judges historically hesitant in finding the privative clauses ‘plain meaning’ and circumvented it through
following a chain of reasoning Anisminic HoL. Where clause existed, Court determined whether issue ‘fell within jurisdiction’ or
whether it was a privative clause. Where issue was jurisdictional, court entitled to review which was done using a correctness
standard of review.
JURISDICTION ISSUE? Courts could determine whether an issue was jurisdictional by asking 2 questions:
(1) Prelim or collateral question doctrine? [Bell v ON (HRC) 1971]
Bell v On: HRC had rule against discrimination, applied to ‘self-contained dwelling’; landlord claimed his first
floor flat was not a self contained dwelling, thus the tenant could not bring complaint to HR board/committee. JR
held that the complaint/committee ruling was contingent on the first stage – whether it was a self-contained unit. It
was held not to be.
(2) Asking the wrong question doctrine? [Metrolife Co 1970] (asking wrong question, even though within jur, can become
jurisdiction issue)
 These have been largely discarded, yet the language of jurisdiction lives on.
Breakthrough of existing Substantive Review Modes:
CUPE v NB Liquor Corp 1979 SCC: [leading case]
 Employee strike, Act said striking employees were prohibited from picketing & employer prohibited from
using ‘replacement workers’. Company brought in managers to do the work of strikers.
 Privative clause that Board decision was final.
 Board upheld both complaints, (1) picketing illegal, (2) mangers working illegal, Company appealed.
 Corp argued that ‘manager’ in act was defined differently than ‘employee’ replacement.
Issue: The issue before the Supreme Court was whether Board's decision was sufficiently incorrect to warrant
overturning in the presence of the privative clause. Interpretation of s102(3)(a) ): does it prohibit temp workers, can
management personal be defined within act?
 S.102(3) seems to lie logically at heart of specialized jurisdiction confined to Board. However, using
review, found it as reasonable as the alternative interpretation suggested by CA.
SIGNIF: Dickson J., writing for the unanimous Court, proposed a new analytical framework to approach
administrative decisions.
(1) Court should only interfere with an interpretation of a provision, that is ‘so patently unreasonable that its
construction cannot be rationally supported by relevant legislation
 Held decision of board was not patently unreasonable, retained their decision. And section in Act was badly
drafted and ambiguous, thus deference should be given to the board.
(2) Admin decision makers are not ‘inferior tribunals’ but specialized bodies, possessing a legislative mandate to
apply their expertise/experience to matters they may be better placed to address then original courts’
(3): Court embraced message of curial deference, moving away from existing approaches to review for
jurisdictional error involving the ‘pragmatic and functional approach’
IMPACT: Demonstrated 3 sources of SCC doctrinal change:
(1) Broader reappraisal of the respective roles assigned by the legislature to the courts and to admin bodies in the
implementation of regulator scheme
(2) Where ambiguity exists, no single interpretation can be correct, rather, there are several plausible
interpretations. This interpretative choice requires courts ask to determined who is better placed to make the
(3) Fast methods of ‘prelim or collateral question’ is not helpful because anything can be characterized as
preliminary. Short of patently unreasonable, courts could not interfere with result reached by administrative
decision makers
Pressing issue given development of deference= Whether JR is constitutionally protected? Since interpretations should express will
of legislator, where PRIV CLAUSES exist, it would fall that admin could be insulated from JR. After CUPE, SCC avoided
completely insulating admin bodies from JR:
Crevier v AG (Quebec)
SIGN Per Laskin CJ: upheld privative clauses against s.96 attack
RATIO: Constitutionalized JR for jurisdictional questions, even in face of privative clauses
SIGN: Per L’Heureux- Dube: ‘since as a matter of constitutional law, a legislature may not, however clearly it expresses itself,
protect an admin body from review on matters of jurisdiction, it cannot be left to decide freely which matters are jurisdictional and
which come within Board’s exclusive jurisdiction.
Use and Misuse of Discretion:
Abuse of Discretion as a Grounds for JR:
WHAT A decision made that is beyond scope of body’s power.
Suresh has already been looked at in-depth demonstrating where implication of abuse of discretion at the agency/ ministerial role.
The following demonstrates municipality implications:
Shell Canada v Van City 1994 SCR: [Improper use, municipality Imp]
Facts: Council passes resolution refraining to do business with Shell if in South Africa (unhappy with Shell’s activity in SA).
Shell attacks validity of municipal’s resolution. The stated purpose of the resolution was to indirectly place pressure against
South Africa’s apartheid regime.
Issue: Were resolutions beyond city’s power (abuse of discretion)? Was phrase capable of encompassing matter’s outside of
city boundaries, provided they affect the welfare of citizens? Was it thus ultra vires?
Analysis: Courts respecting responsibility of elected municipals, Per McLaughlin J (in minority dissent) concluded court should
adopt a generous, deferential standard. Decision would actively stifle the democratic capacity of one of our most powerful
governmental institutions: our cities.
MIN: Motives of City cannot be said to have exceeded power conferred via statute providing for ‘good rule/ government of
city’. Find phrase capable of encompassing decisions made on matters outside of city.
MAJ: Because the resolutions pursued the ‘improper purpose’ of affecting matters in other parts of the world, it was
outside the city’s legislated powers. There is no express power authorizing resolution. ‘Good rule/government of city’
placed territorial limits on Councils jurisdiction. Therefore acted beyond its statutory discretion = abuse of discretion
Suresh 2002 [Proper use, agency/ministerial role].
SIGN: Discretion to decide deportation of security threat, even where possibility exists that person life would be in serious
jeopardy. Minister must exercise discretion granted by Parliament accordingly. In reviewing ministerial decision under
Act, court must afford deference, provided decision was not patently unreasonable, unsupported. However, S was entitled
to procedural fairness and was not, thus decision was quashed.
HELD: In reviewing ministerial decision under Act, court must afford deference, and provided decision was not patently
unreasonable, unsupported by evidence, it should be upheld
NOTE: S was entitled to procedural fairness and was not, thus decision quashed.
Discretion and the Charter: Constitutional and International Law:
The Charter improved in 3 ways the protection of individual rights previously provided by CL:
Charter identified those that are to receive particular attention by their entrenchment in the constitution
Charter rights are not absolute and may have to be accommodated to other claim, via s.1
Charter prevails over express statutory language authorizing the curtailment of Charter protected right and “reading down”
so as not to authorize the violation of fundamental rights
Besides the Charter, other underlying constitutional principles and well as international law may be relevant to the exercise of
discretionary power: Baker
DELEGATED LEGISLATION: The power, to frequently delegate by statute to make rules of more general application is an
important admin tool. Like all other exercises of discretion, it is subject to JR
UNREVIEWABLE DISCRETIONARY POWERS: It was assumed that JR applicable to the exercise of Statutory discretion did
not extend to non-statutory powers of government. Now clear that courts, in determining whether a discretionary power is exempt
from review, will be influenced more by the nature of power, and less by its legal source.
EXAMPLE: Royal Prerogative: GCHQ, per Diplock- a decision made under prerogative was, in most cases, subject to
review for procedural propriety.
Black v Canada (PM) 2001 SCR:
ISSUE: Whether PP exercised by PM in advise to Queen on honour on a Canadian citizen was reviewable in court?
ANALYSIS: PRO is reviewable, as the source of the power (prerog or other) should not determine whether action
complained of is reviewable, proper test being: Subject matter test, and that justiciability was at the core of the subject
matter test.
HELD: It is plain and obvious that PM’s exercise of the honors prerogative is not judicially reviewable (this is not absolute)
WHEN is it reviewable: Where an individual interest is at stake from power: refusal to grant passport, pardon etc.
From Q’s of Jurisdiction + Privative  to  Expertise? And Deference?
LEGACY: CUPE SCC continues to embrace it by asking ‘should the courts defer’ in almost every challenge.
Two following cases established that Courts should defer to Agency’s Resolutions of an issue of statute interpretation even
in face of a right to appeal on such issue:
Pezim v BC (Superintendent of Brokers) 1994 SCC [key case]
Facts: P failed to make timely disclosure pursuant to Securities Act, BC Securities Commission suspended them from trading
shares. P exercised right under s.149 to appeal decision on Q of law to CA with leave.
Issue: What is appropriate standard for Court reviewing a decision not protected by PRIV when there exists a Stat right of
appeal and where case turns on Q of interpretation of ‘material change’. This all helps to determine standard of review.
Analysis: Take nature of stat into account- in this case (Statute is regulatory in nature, goal to protect investor, regulation is
highly specialized)
Clear legislature’s intent was to give Comm a very broad discretion to determine what is in public’s interest (deference),
especially given Commission plays role in policy development, a higher degree of deference if warranted.
Question of law at issue (‘interpretation of material change’) goes to heart of regulatory expertise (deference). Not patently
unreasonable, commission was right in there determination.
Ratio: ‘Specialized Duties’ requires deference be shown to decisions of specialized tribunals on matters falling squarely
within tribunal expertise.
NOTE: Iaccobucci: hinted need for an intermediate standard: reasonableness simpliciter.
Canada (Director of Investigation) v Southam Inc 1997 SCR [key case]
Facts: Comp tribunal decides Southams acquisitions lessened competition, decided remedy. Statute provided for appeal to FCA.
Issue: Did FCA err in concluding it owne no deference to tribunal’s finding of relevant market hindrances and by substituting
finding of its own?
 No PRIV therefore no jurisdictional issue. Leg Intent is clear.
 Problem = one of fact and law because if tribunal erred, it was in applying the law to facts.
 No new legal principles therefore = error would on mixed law and fact (Suggests Def).
 Par also gave unfettered right to appeal (Suggesting less-then Def). Aim of act= economic, not legal, thus specialized
tribunal better suited (Deference).
(1) Factors point towards deferenc: question was of mixed law and fact and principles of application of law fell squarely
within Tribunals area of expertise.
 Iacobbuci J: applies new middle standard: reasonable simpliciter.
 Presence or absence of privative clause not so crucial and fundamentally important jurisdictional question was
supplemented by ‘expertise’ as key determinate of the standard of review.
Pushpanatham v Canada (Min of cit/imm) 2003 SCC:
Legislative Intent  Pragmatic and Functional Test:
Issue: Whether Immigration Act can be interpreted as excluding Ref whom commit crime contrary to principles of UN? No
privative clauses exist.
Analysis: Determine legislative intent by 4 categories Pragmatic and Functional Test: (1) privative clause (2) expertise (3)
purpose of act (4) nature of problem- fact, law, mixed.
HELD: Implication of decision stray from core expertise of tribunal, because question at issue it not a broad one involving
general principles, but rather the interpretation of statutory definition within international law framework. Moreover, board did
not develop policy.  Factors taken all together, lead to an imposition of correctness standard
NOTE: Jurisprudence after Pushpanatham relied on these 4 categories, but it remains unclear whether, where and to what
extent these factors influence Dunsmuir
Applications of “The Pragmatic and Functional Test”  From Pushpanatham above
[a] Privative Clause: presence weighed in favour of curial deference, but never played a determinative role. But lack of expertise
could outweigh clause.
[b] Expertise: 3 steps for evaluation
(a) Court must characterize expertise of Tribunal
(b) Court must consider own expertise relative to Tribunal
(c) Court must ID nature of specific issue before admin decision, relative to their expertise.
Expertise are broad: dealing with economic, financial, technical matter (Sec Com, Int Tribs, Telecom- they have all been
recognized by Court as possession experience and specialized knowledge)= DEFEFERENCE
(2) Canada (AG) v Mossop 1993 SCR: where expertise (HR) so close to that of court =/ def
(3) Baker v Canada (Min of Imm) 1999 SCR: Fact that formal decision maker was Minister and not delegate= deference do to
(4) Chamberlain v Surrey School 2002: locally elected rep of a board is often better placed to understand community concerns
then the court. However because of HR dimension, less deference was owed.
[c] Purpose of Statute as whole: Legislative intent (does it point to deference)?
[d] Nature of Problem: the nature: question of law or fact or mixed conveniently map out on the spectrum of deference as less
deference, neutral or more deference. Where there is greater precedential impact, the greater the assessment of expertise tilts
towards the courts (pure question of law) or a general question of all, courts tend to believe its expertise is superior
In this section, we built on the history lesson and have you read some more history, examining some of the key cases developing some
of the concepts that still remain important in modern law – not least the application of the “pragmatic and functional” test to errors of
law and ultimately discretion. But this is still history. You!re not at the current law yet.
11. The Current Test
Overview: from Syllabus
Dunsmuir is your focus. Understand it. Understand how it creates two standards of review (reasonableness and correctness), and what each means. Understand how it
changes prior tests used to decide which standard of review should be applied.
Consider how Dunsmuir has been interpreted by other courts and in other cases. No, it hasn’t been construed perfectly consistently and there are elements of postDunsmuir cases (like Khosa) that seem to go back to a “pragmatic and functional” test. But consider also the recent cases of Smith, Nor-Man, Newfoundland Nurses
and McLean and what they seem to suggest about Dunsmuir’s meaning. Those cases propose a pretty simple standard of review test: look at the use of “default”
assumptions about standard of review driven by the nature of the question before the court. Note the only secondary role of the “pragmatic and functional” test
variables. In modern law, it would be incorrect to rely strictly on these variables and pay no heed first to the “defaults”.
Also pay attention to a new wrinkle introduced by the SCC in Doré. Doré looks at what standard of review is applied to an exercise of discretion by an administrative
decision maker who is considering a Charter right in making their discretionary decision. Short answer: “reasonableness”.
Once you have determined the appropriate standard of review (correctness or unreasonableness), you may also be required to apply that standard to a substantive ruling
or decision. For this, you should be familiar with the standards and tests that the SCC has identified for conducting this exercise and be able to deploy them
After many Courts plead for the abandonment of 3 standards in favour of a return to 2 standards of review: Correctness and
Reasonableness (Toronto City v CUPE 2003 SCC), the SCC responded in Dunsmuir
Pragmatic and Functional Test Approach: Was reaffirmed but renovated by the followed case.
Dunsmuir v NB 2008 SCR: [key case]
Facts: ‘A’ dismissed from Civil Service position after receiving many unsatisfactory notices. He was informed by letter, not
being for ‘cause’, he was granted severance. Grieve dismissal in letter, when denied, he gave notice he would refer to
adjudication. Adjudicator selected, in interpretation statute he found D had been denied procedural fairness in manner of
dismissal and dismissal was void, ordering reinstatement. JR overturned.
Issue: Question of law as whether adjudicator was entitled to inquiry into whether employer actually dismissed D for cause, and
whether cause existed.
This was a question of law, BUT NOT one of central importance to the legal system, thus standard of reasonableness
applied. On this standard, court rules decision failed to meet this standard and was therefore unreasonable.
(1) Simplifies standard of review: 2, rebranding Pragmatic and Functional Test and “Standard of Review Analysis”.
(2) Where past guidance on deference does not exist court must review all factors. Standard may be assumed to apply
automatically based on for example, the nature of the question at stake.
(3) Question of CENTRAL IMPORTANCE to legal system as a whole, are assigned correctness review, ONLY if they are
also outside the specialized areas of expertise of the admin decision maker.
Where question is one of fact, discretion or policy, deference usually applies, same must apply for mixed fact and law questionDEFERENCE (Reasonableness)
- Questions of fact, discretion, policy
- Question of mixed fact and law
- When tribunal is interpreting own statute
- Where particular expertise exists
- Privative clause
- Questions of law that do not rise to level of central
importance may be compatible with reasonableness.
- Question of law (central to important of legal system, which is
outside specialized area of expertise)
- Constitutional questions
- True Question of jurisdiction (where tribunal must explicitly
determine whether its statutory grant of power gives it the
authority to decide a particular matter
- Questions regarding the jurisdictional lines between 2 or more
competing specialized tribunals
PROCESS OF JR= Two Step Process
(1) Ascertain whether jurisprudence has already been determined in a satisfactory manner the degree of deference to be accorded
with regard to a particular category
(2) If no precedent exist, court should proceed to an analysis of the factors (above) making it possible to ID the proper standard
of review applying the standard of review analysis.
CRITIQUE Guide To Future: Per Binnie J: ‘how can a single, invariant standard (deference) manage the diverse range of actors,
issues, stat provisions, and expertise that the P+T tests previously ID’d and calibrate according to 2 standards of deference?
New standard will inevitably devolve into a spectrum of deference varying according to factors previous ID’d in P/F
Certain Q’s that come before Tribunal do not lend themselves to one specific result, rather, they give right to a number of
possible, reasonable conclusions.
Case Application: Mowat v Canada 2009 SCR
ISSUE: Whether HR tribunal was within its jurisdiction to award legal costs via statute.
ANALYSIS: The question was one of general law of central importance to legal system and did not engage the
HR subject matter in which the Tribunal had expertise. Having regard for purpose of tribunal’s expertise, the
applicable standard of review was correctness.
 DUN says- HR tribunal attract little deference, expertise related to fact-finding not general Q’s of law.
Therefore = correctness.
HELD: CHRT has no authority to make an award of costs under the provisions of CHRA, inclusion of expenses =
PRIV Clauses in Standard of Review Analysis:
WHAT Despite the presence of these clauses, superior courts retains a fundamental constitutional authority to review
administrative action in order to ensure that s statutory decision maker is not exceeding its delegated authority.
Crevier v Quebec (AG) 1981:  demonstrates Constitution implicitly guaranteed the authority of the courts to review the
decisions of administrative agencies for errors of law or jurisdictional and procedural fairness. SCC entrenched constitutional
right to JR on jurisdictional grounds
Dunsmuirs 2008: Even a privative clause, which provides strong indication of legislative intent, cannot be determinative.
STANDARD OF REVIEW ANALYSIS strives to determine what authority is intended to be given to the body in relation
to subject matter. This is done within context of court’s constitutional duty to ensure that public authorities do not overreach
and that inherent power of SCJ to review Admin action and ensure that it does not exceed its jurisdiction, stems from s.96101.
CAN LEG STILL OUST COURT’s JR?- It is not generally agreed that Legislature cannot and Constitution Act contains no
provision explicitly dealing with power of Courts to review Admin decisions, like South Africa for example. However, it is
possible to argue that what is not expressly provided for within Constitution, is nonetheless implicit within it. Absence is implied
with s.96-101 CA 1867.
Reasonableness Standard:
WHAT Discretionary powers may lead to deference by courts, however, where decision maker has acted in bad faith,
wrongfully delegated its power or fettered its exercise of discretion  Courts will find actions fall outside scope of agencies
discretion = unreasonable.
Baker Since, the approach to JR of discretionary decision making has changed significantly. Courts emphasized a bright-line
distinction at the margins btw Question of Law and exercises of discretion, leading Court to recognized that the ‘P+F
Approach, was also of use in determining the intensity in which courts should approach the decision in the discretionary
section of the spectrum between pure QoL, at one end, and completely unfettered discretional at the other end.
Baker v Canada (Min of Cit/ Immi) 1999 SCR:
ISSUE: Whether H/C decision was improperly made, A submitted that the decision should be held to a standard of correctness:
ANALYSIS: Language of legislation = considerable discretion to Minister. Applying pragmatic approach: (1) privative clause
existed requiring leave of court to review (2) expertise of minister =deference (3) purpose of provision =discretion= deference
(4) nature of problem is appreciate for facts rather then application of definitive legal rules.
Therefore: balance = deferential standard.
HELD: On Q of whether decision was unreasonable, court must find that it not be supported by evidence. On a reasonableness
standard, court must look to see whether any reasons supporting (lack of interest to children = unreasonable) and immigration
shows = inconsistent with values underlying grant of discretion, based on ‘reasonable person standard’. Thus, H/C discretion was
Suresh v Canada (Min of Citizenship and Imm) 2002 SCR:
FACT: Minister must exercise discretion grant by Par accordingly, in this case it was national security to issue deportation.
FCA: Question is constitutional rather then merely on of JR, determining standard of correctness= Minister decision should be
upheld as decision could have been the same whatever standard used.
HELD: In reviewing ministerial decision under Act, court must afford deference, and provided decision was not patently
unreasonable, unsupported by evidence, it should be upheld
NOTE: S was entitled to procedural fairness and was not, thus decision quashed.
Note: Dyzenhaus 1997: Deference, is no submission, but respectful attention to reasons offered”
Correctness Standard:
WHAT Dunsmuir demonstrates that reviewing court will NOT SHOW DEF to a decision maker’s reasoning, analysis will
rather bring court to decide whether it agrees with the determination of the decision maker. Where it does not, Court will
substitute its own review and provide the correct answer.
Pushpanathan v Canada(Min of Imm) 1988 SCR:
SIGN: Q’s at issue are not broad involving general principles of interp/legal reasoning, but the interpretation of a statutory
definition with specific international law framework: Court had to adopt an interpretation consistent with Canada’s obligation
under convention. Moreover, board did not develop policy. Factors taken all together, lead to an imposition of correctness
Application of Dunsmuir through Case Law:
SIGN: Dunsmuir created “default assumptions’ about the standard of review driven by the nature of the question before the
court. Thus, in modern law, it would be incorrect to rely strictly on pragmatic and functional test variables and pay no
attention first to the defaults:
ISSUE: Dunsmuir has not been construed perfectly consistently and there are elements of post-Dunsmuir cases (like Khosa)
that seem to go back to pragmatic/functional test.
How have other courts interpreted Dunsmuir:
Alternative Approach:
Aims to in part re-characterize issue of judicial deference in review of Admin actors based on method that is used by
Appellate courts to scrutinize lower court decisions:
Demonstrated in Canada v Khosa 2009 SCR (min- Rothestein) and through Dsechamps dissent in Dunsmuir: where no
statutory direction available, the courts should defer to Admin tribunals:
o Questions of fact, and usually mixed questions on fact, law and discretion, however not a question of law
o Deference warranted to question of law only where there is a privative clause and specifically not where there is a
statutory right of appeal on such question
o No Deference where issue falls outside regular activity of decision-maker expertise
o No prioritization of deference where admin court is found to have greater expertise than court.
NOTE: Deschamp J: QoL require scrutiny where deference is evaluated, where as mixed questions do not. He adopted correctness
standard despite strong privitive clauses and longstanding role of adjudicator is resolving similar disputes. Which is different from
majority who prioritize deference where admin actor is found to have greater expertise than court.
How to refine conflict between alternative approach and Majority in Dunsmuir:
 Must understand it as a difference of view over what to presume in the face of silence or ambiguity in a statute on the specific
issue of the appropriate standard of review.
 Majority in Khosa, rejecting Rothenstein statement that where Parliament did not provide for deferential view (via statute,
privative), it intended the reviewing court to apply a correctness standard. Binnie: argued that it is not necessary or desirable
and states that Duinsmuir stands directly against this view.
Canada (Cit/ Imm) v Khosa 2009 SCC:
FACT: Unsuccessful app to Immigration App Board to remain in Canada despite criminal charges, did not accept ‘sufficient H+C
grounds to warrant exception within meaning of s.67. JR reviewing applied patent and unreasonable standard (2009), dismissing
K’s challenge. FCA applies reasonable simpliciter.
HELD: SCC (Maj Binnie): Q of whether K had shown sufficient ‘H/C’ consideration to warrant relief from decision was a
decision which Par confined to Board not courts. On general principles of admin law, including Duns, applications judge was to
give higher degree of deference to Board, Decision of board was held to be within range of reasonable outcomes. FCA erred
NOTE: What this says about Dunsmuir: applies steps of JR from Duns, privative clause presence is an importance indicator of
legislative intent, purpose, factors clearly point to application of reasonableness standard.
Art Hauser Centre Board Inv v CUPE 2008: SKCA
FACT: Board interprets ‘having regard to desirability of maintaining a stable work force and having regard to periodic peak in
work load dictating necessity of contracting word’. JR found standard or review to be reasonableness, but board interpretation is
ISSUE of SCC: Judge substituted her interp of Article for that of Board without according board sufficient deference, and in doing
so, incorretly applied reasonableness standards. Noting that Dunsmuir demonstrates need for greater deference to a board’s
Questions that have developed After Dunmuir:
Wooley 2008 stated that the major flaw in Dunsmuir is the judgment illusion that it can fix the problem (how to decide). There is
no generic formula that can decide when a specific question is better answered by an admin decision.
(1) Role of precedent: it must first be decided whether past decision is sufficient like case at hand. Should it go so far as to revisit
decisions that appeal to contradict the balance that in struck in Dun?
(2) What to do with cases where statute or existing jurisprudence dictates a standard of review that is no longer available in the
common law after Dun?
(3) Dun introduces new questions about proper scope of JR on questions of law
Giving Reasons under ‘Reasonableness Standard’:
WHAT Dunsmuir has made it clear that giving reasons (such as those under Baker procedure) are also important for
reasonableness review of substantive decisions. They are considered a prerequisite for courts to conclude a substantive decision
was reasonable.
HOW Examine both process of articulating reasons and there outcome.
SIGN The ‘how’ falls in line with the main concern of the reasonableness review= the existence of justification, transparency
and intelligibility within decision making process.
APPLICATION: Dunsmuir majority referred to proposition that an admin decision may be found to be reasonable based on the
‘reasons that…could be offered in support of a decision… suggesting that court might invite from parties reasons to support
decisions that are not presently explicit in the reasons of the decision maker.
Macdonald v Mineral Spring Hotel:
SIGN: Failure of Board to give reasons warrant returning matter to Board. Once remitted to board, it was held to be reasonable!
RATIO: Absence of reasons is enough to allow courts in evaluation of substantive decision, to refer case back to admin
decision maker for proper explanation.
Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) (2011)
WHAT: Decision clarified the proper approach for judicial review of an arbitrator's reasons under the principles
previously set out in Dunsmuir v. New Brunswick
In Dunsmuir the Court held:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the facts and law.
FACTS: Judicial review on a reasonableness standard of an arbitrator's award in a dispute involving the calculation of vacation
benefits under a collective agreement. In a 12-page decision, the arbitrator outlined the relevant facts, arguments,
provisions of the collective agreement and applicable interpretive principles, and concluded that, under the collective
agreement, a permanent employee could not include time previously spent as a casual employee for purposes of
calculating his or her vacation entitlement. JR held that decision was largely repetitive, and was not adequate.
Restored the arbitrator’s decision. While they could have been more comprehensive, they were sufficient to satisfy the
Dunsmuir criteria b/c when read as a whole and in context, the demonstrated that he grappled with the substantive live
issues necessary to decide the mater. Therefore the reasons provided a reasonable basis for his conclusion.
Clarified that a proper reasonableness review under the Dunsmuir criteria does not involve a separate analysis of the
"adequacy" of reasons which could serve as a stand-alone basis for quashing a decision. Rather, Dunsmuir requires a
"more organic exercise" in which the reasons are read together with the outcome to determine whether they show that
the result falls within a range of possible outcomes.
Decision indicates that it will generally be difficult to challenge a decision based on an assessment of the thoroughness
of its reasons; if the reasons allow the reviewing court to understand why the decision-maker made its decision and to
determine whether the conclusion is within the range of acceptable outcomes, the Supreme Court has indicated that
the Dunsmuir criteria are met.
Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. 2013 SCC 36
Mr. Agraira, a Libyan citizen, was denied admissibility to Canada under s. 34(2) (as it was then) of the (IRPA). The
Minister concluded that it was not in the “national interest” to admit Mr. A due to his connections to the Libyan
National Salvation Front, a terrorist organization, as classified by Citizenship and Immigration Canada. Before the
Supreme Court of Canada on an application for judicial review, Mr. A argued that the Minister’s reasons narrowly
construed the meaning of “national interest”.
Majority applied the standard of review of reasonableness, and dismissed Mr. A’s application. While the Minister’s
reasons did not expressly articulate his interpretation of “national interest”, the majority looked to “the reasons that
could have been offered”.
Incidentally, the Minister’s use of the term “national interest” in his reasons illustrated the Minister’s implied
interpretation of the Guidelines. As a result, the Court determined that the Minister’s reasons were “justifiable,
transparent and intelligible,” and fell within the range of acceptable outcomes.
This case highlights potential dangers that can arise from the Court’s inferences of a decision-maker’s implied
interpretations. It is argued that the Court conducted a global application of the reasonableness standard rather than
parsing out the Minister’s actions and applying the reasonableness standard to each component.
Agraira also cast light on the rebuttable presumption of reasonableness given to an administrative decision-maker’s
interpretation of its home statute, as discussed by Justice Rothstein in Alberta Teachers’. The absence of a privative
clause, no creation of an administrative tribunal and express limitations on the Minister’s powers spoke to the
legislature’s intent behind the federal statutes.
“Concept of Jurisdictional Error”:
GOAL Find framework enabling courts to distinguish questions of law that should be left to Agency, from those that, despite
presence of privative clause, must be decided by court.
The following case demonstrates how the concept of jurisdiction can be understood (ie- ways around jurisdictional Q):
PSAC v CFPA 2009 FCA: [How jurisdiction is understood]
FACT: Appeal to FC under FCA, from decision of Public Service Labour Board, allocating 3 positions in public service to
‘occupational groups’ not identified in definition in relevant job description. Decision was appealed, arguing board made
jurisdictional error thus must be set aside pursuant to FCA.
ANALYSIS: Jurisdictional error, in only ground of review available to appeals on facts of case, privative clause ousts Court’s
power to review decision of fed tribunal for ‘mere’ error of law under Act. Dunsmuir= where no standard of review is specified,
jurisdictional issues command a correctness standard.
Evan J: jurisdictional issue is an empty concept. He argues it would make no sense to apply a correctness standard when tribunal
has authority to interpret that the legislature intended tribunals interpretation to be reviewed only for unreasonableness.
Calgary City v Alberta (Municiple Government Board) 2008:
ISSUE: Whether HBC is entitled under Act to make complaint to an assessment of property that it occupies as tenant?
ANALYSIS: Nature of Q is of law (involving interp), and requires policy consideration as to effective functioning of complaint
process. Board is well suited to address these considerations. Q of Law does not fall within scope of one addressed in Dunsmuir:
‘jurisdictional’ or ‘constitutes a question of importance to the legal system as a whole.’ Presence of PRIV clause, a weak one and is
still significance deference. Reasonableness should apply
Did Dunsmuir’s reasonableness standard reflect a spectrum, therefore after Deferential standard identified, Courts would have to
consider how much deference was required? NO
Mills v Ontario 2008 ONCA: CA rejected view of reasonableness on spectrum. Arguing that Duns’ in collapsing both
reasonableness standards did not require courts to puzzle over degree of deference to give to a tribunal within standard. Primarily
because: new standard was suppose to make it easier for courts.
Khosa 2009: confirmed that reasonableness was not to be decided on a spectrum, rather it was a single standard, falling within a
range of possible, acceptable outcomes.
Smith v Alliance Pipeline Ltd 2011 SCC: [Upholds Duns]
FACT: A approved by NEB to build pipe, appeal to Pipeline Arbitration Committee
ISSUE: What standard would apply to 2 differnet decisions by 2 different arbitration committees?
ANALYSIS: Duns, provide clear governing standard of review of reasonableness. Interpretating home statute and NEB home
statutes regarding cost= deferential approach.
SIGN: Extensive and formulaic inquiring of past have been replaced by broader and less cumbersome approaches set out in
Duns. Therefore this would null the idea of a spectrum.
Nor-man Regional Health Auth Inc. Manitoba Ass of Health Car Pro 2011 SCC [Upholds Duns Deference]:
FACT: Labour arguments between Union and X (collective agreements. CA held correctness was governing standard of review,
setting aside estopple imposed by Arbitrator.
ANALYSIS: It is well established as a general rule that reasonableness is standard of review governing arbitral award under
collective agreement (via Labour Arbitors- expertise). Equitable remedy imposed here does not involve a question of central
importance to legal system as whole that was beyond expertise of arbitor. =/ correctness, confirming reasonableness.
SIGN: Confirms Duns flexible approach to deference to specialized tribunals (Arbitrators) to craft appropriate remedies, when
broad discretion is provided for.
McLean v. British Columbia (Securities Commission), 2013 SCC (Fashionable correctness review)
FACTS: Mclean entered into settlement agreement with Ontario Securities Commission, relating to misconduct as a director. She
received notice that BC Securities Commission was bringing proceedings against her by way of the BC Act which allowed her to
be subject to regulatory actions as well under s.161 of BC Securities act. Under this act, six year limitation period “after date of
events that give rise to previous proceedings.” Mclean argues this period has passed. W/O giving reasons, Commission issued
order against Mclean.
APPEAL: the BC Court of Appeal concluded that, “generally the interpretation of a limitation period provision in a statute will
engage the standard of correctness”. It came to this conclusion on the grounds that limitation periods should be considered as
general law that is central to the importance of the legal system.
ISSUE: Ever since Dunmisuir developed a ‘more coherent and workable’ framework for judicial review of admin decisions, lower
courts have difficulty undertaking correctness review where reasonableness standard is required.
HELD: SCC reversed decision holding appropriate standard was reasonableness.
 In Dunsmuir, the SCC held that “deference will usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, with which it has particular familiarity”.
 The Court clarified this position in Alberta Teachers 2011 SCC 61 by stating the interpretation of home and closely
connected statutes “should be presumed to be a question of statutory interpretation subject to deference on judicial
While this presumption is subject to a few exceptions, including questions of jurisdiction and general questions of law of
central importance of the legal system, McLean holds that these exceptions are exceedingly rare:
 Post-Dunsmuir, it has become fashionable for counsel to argue that the question before an administrative decision
maker falls into one of the few recognized exceptional categories. One wave of cases focuses on whether the
question raised a “true” question of vires or jurisdiction.
 A second wave – the one which the appellant now rides – focuses on “general questions of law that are both of
central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (see
Nor-Man). In Nor-MAn, this Court unanimously found that the question presented did not fall into this exceptional
category – “and I would do so again here.”
Expanding on Alberta Teachers, the SCC held that when interpreting a home statute, the tribunal “holds the interpretive
upper hand”.
Attaching this principle to the facts of the case, the Court found that limitation periods as a conceptual matter are of
central importance to the legal system but that the specific limitation period that applied to s.161 of the Securities Act was
not. This was due to the finding that the Commission was in a better position to interpret the term “the events” in the
limitation clause within the context of the Act.
SIGN: SCC clarified the presumption of deference given to tribunals when they are interpreting their home or closely related
statute. Yet, McLean offers little concrete guidance for future applications of judicial review. For example, the Court
states that the correctness standard is reserved to “safeguard a basic consistency in the fundamental legal
order”. Yet, prior to McLean, one could plausibly argue that various tribunals and commissions interpreting the same
statutory language in different ways would qualify as a “basic [in]consistency”
Cases that consider the standard of review where constitutional issues arise in the exercise of discretion:
Doré v. Barreau du Québec, 2012 SCC 12;
 The Disciplinary Council of the Barreau du Québec reprimanded a lawyer for the content of a letter he wrote to a judge
after a court proceeding. That decision was upheld by the Tribunal des professions. The lawyer applied for judicial
review, inter alia, challenging the constitutionality of the decision, claiming that it violated his freedom of expression
(Canadian Charter of Rights and Freedoms, s. 2(b)).
 The Quebec Superior Court, in a decision with neutral citation 2008 QCCS 2450, dismissed the application. The lawyer
The court acknowledged that the Disciplinary Council’s decision was a breach of s. 2(b), but applying a full s. 1 Oakes
analysis upheld the decision.
ISSUE: What is the appropriate framework to be applied in reviewing administrative decisions for compliance with Charter
 Supreme Court of Canada held that in determining whether administrative decision-makers exercised their statutory
discretion in accordance with Charter protections, the administrative law approach was appropriate. Lawyers have a right
to speak their minds freely, but they must do so with dignified restraint.
 Doré’s criticism must be measured against the public’s reasonable expectations of a lawyer’s professionalism
 The standard of review was reasonableness. In this case, the discipline committee’s decision to reprimand the lawyer
reflected a proportionate balancing of its public mandate to ensure that lawyers behaved with “objectivity, moderation and
dignity” with the lawyer’s expressive rights. It was, as a result, a reasonable one. The court dismissed the appeal.
Deference was given to a disciplinary tribunal’s interpretation of the Charter despite Charter issues often being
assessed on a standard of review of correctness.
In assessing whether an adjudicated decision violates the Charter, the court should not apply the Oakes test integrally
 It must determine whether the decision-maker disproportionately & unreasonably limited the Charter right.
 In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that
the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives
 An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of
expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter
 He or she will generally be in the best position to consider the impact of the relevant Charter guarantee on the
specific facts of the case.
Divito v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 47
Divito was extradited to the United States where he pleaded guilty to serious drug offences and was sentenced to 7.5 years
in prison. He applied for a transfer to Canada under the International Transfer of Offenders Act (ITOA), but the
responsible Minister denied his request for a transfer.
Divito’s request was approved by the United States, but was refused by the Canadian Minister of Public Safety and
Emergency Preparedness.
Divito applies for JR in constitutionality of the Act but not on the reasonableness of the ministers decision.
Divito claimed that those provisions violated the right to enter and remain in Canada guaranteed to every citizen under s.
6(1) of the Canadian Charter of Rights and Freedoms.
The court held that Divito’s right under s. 6(1) was not infringed by the impugned provisions and that, in any event, those
provisions constituted a reasonable limit to his right to enter Canada under s. 1 of the Charter. Divito appealed.
ISSUE: At issue are the mobility rights guaranteed under Section 6 of the Canadian Charter of Rights and Freedoms and at
international law.
 The majority rejected Divito’s view that the mobility rights guaranteed by s. 6(1) of the Charter gave a Canadian citizen
in his circumstances (i.e., once the foreign jurisdiction had consented to the transfer) an automatic right to serve a
sentence in Canada. The majority held that the impugned provisions of the ITOA did not infringe s. 6(1) of the Charter.
Because of this finding the majority found it unnecessary to deal with the s. 1 issue.
 Divito’s argument that the Minister had to consent to the transfer of a Canadian citizen once a foreign state provided its
consent called into constitutional question not the impugned provisions, but the way the discretion is exercised. This
called for scrutiny of the reasonableness of the exercise of discretion, an issue Divito did not appeal to the Court
1. Pragmatic &
*who (courts or original
decision maker) is better
placed to make the
determination at issue?*
2. RESULT = how much
deference is given to
original decision maker
=> deference = "respectful
attention to reasons"
3. Deference quantified
in a SoR applied to
little/no deference
more deference
Availability of Appeal:
STATUTE Statutes allows appeals of decisions. Whether stat allows this right, it must be exhausted before seeking JR.
JUDICIAL REVIEW part of the inherent powers of superior courts to review the exercise of powers by the executive
branch officials.
Structure and Jurisdiction of the Federal Courts:
FEDERAL COURTS: s.101 Constitution Act, only have those powers given to them by constitution or FED statute. FFC
comes in form of TJ and FCA. In admin law, FCC is not always court of first instance. S.28 Federal Court Act enumerates the
Admin Tribunals that’s will direct to FCC as court of first instance.
EXCLUSIVE JURISDICTION: Section 18 FCA specifies, subject to s.28, has ‘exclusive original jurisdiction’ to:
 Issue injunction, certiorari, prohibition, mandamus, grant declaratory relied against fed board, commission or other
tribunal [REMEDIES]
 Hear and determine any application/ proceeding for relief.
JR of FCC: FCA created a relatively comprehensive guide to the manner of, and basis for JR of admin action. Applicant must
exhaust all other options before applying for JR, failure= denying remedy of JR.
LIMITATION PERIOD: Applicant for JR in respect of a decision/ order of federal board, shall be made within 30 days after
decision first communicated
GROUND OF REVIEW: Section 18.1(2) Identified ‘FC many grant relief…if satisfied that Federal Board, commission or
(a) Acted without jurisdiction
(b) Failed to observe Procedural Fairness
(c) Made an error in law
(d) Made decision based on erroneous finding of facts
(e) Error of Discretion
BAR TO JR: SECTION 18.5: FCA adds a more robust bar to JR- Where statutory appeal from admin decision-maker lies in
one of the bodies listed: FC, FCA, SCC, Martial Court, Tax Court, Treasury Board, GIC, there can be no JR of the same
subject matter covered in the appeal
Where statutory appeal is available to both FCA and GIC, presumably the A would select the FCA where questions of
‘law or jurisdiction’ are at issue; when the challenge is the policy wisdom, GIC would be preferred.
Where A is brought to FCA, there will never be JR, thus when FCA issues its appeal decision, the decision is not
amendable to JR, as FCA is not a federal board, commission or tribunal, under FCA. Rather it is a court, and any
further challenges to any of its determinations are simply taken to SCC. Because GIC is a federal board, commission
or tribunal, it itself is subject to JR by FCC.
LEAVE REQUIREMENTS: Generally speaking, there is no requirement that leave be obtained before A brings application
for JR before FCC, except where statute requires leave be brought before FCC (EX- Immigration Appeals)
STANDING: Per s.18.1(1) FCA: ‘an application for JR may be made by the AG or by anyone directly affected by matter in
respect of which relief if sought”. This provision provides standing as a right to the government of Canada and persons
‘directly affected’ by federal admin decision making.
Direct Affect”: decision must be one which directly affects party’s rights, imposes legal obligations on it or
prejudicially affects it directly’.
Standing however is relaxed through courts recognition of “public interest standing”: serves to provide those who
cannot due to financial restrains, allowed a ‘test’ application or NGO to launch JR on behalf of broader ground.
Finlay v Canada (Min of Fin) 1986: SCC [ public interest standing]
SIGN: granting public interest standing to a claimant challenging a decision, the SCC accepted that this form of standing would
be available to challenge admin action and not simply legislation:
The test:
(1) Is the matter serious and justiciable?
(2) Public interest litigants must raise a serious issue
(3) Is party seeking standing genuinely interest in matter?
(4) Is there any other reasonable and effective way for matter to be adjudicated? [relaxed in Canada (AG) v Downtown Eastside Sex]
Canadian Council of Churches v Canada (Min of Imm) 1992 SCR:
FACT: CCC reps ground, protecting resettlement of refugee. Seek declaration that all amendment violated Charter/ Bill. AG
brought motion to strike out claim on basis that CCC did not have standing to bring action.
ISSUE: Should CCC be grated standing to proceed with action challenging, almost in entirety, the validity of Immigration Act
Serious Issue of Invalidity?
 Claim makes a wide-sweeping and somewhat disjointed attack upon amendments of Imm Act. So allegations being so
hypothetical that it would be impossible for any court to determine with regard to them. Court is prepared to accept that
some aspects of the statement of claim could be said to raise a serious issue as to the validity of the legislation
Has the plaintiff demonstrated a genuine interest?
There is no doubt that applicant has satisfied this part of the test, as council enjoys the highest possible reputation and
has demonstrated a real and continuing interest in the problems of refugees and immigrants
Whether there is another reasonable and effective way to bring issue before the court?
Applicant argues that refugees face as a group disadvantages that preclude their effective use of access to courts.
Moreover Applicant argues that the possibility of the imposition of a 72 hour removal order against refugee claimants
undermines their ability to challenge. SCC unable to accept any of these proposition, based on the number of
immigration claims heard each year, and the clear injunctive relief against removal orders. Thus, on the facts, there are
other methods of bringing the matter before the court, thus on this ground applicant must fail.
HELD: Appeal dismissed.
NOTE: Granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure
will be subject to attack by a private litigants.
Vriend v Alberta 1998 SCR:
ISSUE: Does A have standing for Sections outside of direct claim (sex orientation).
ANALYSIS: CCC applies, criteria met all provision named by applicants.
HELD: Standing for all challengers, as the only way the issues (not specific to the facts) would be provided is if they waited
until someone is discriminated against on the grounds of sex and brings a case. This is waste of judicial resources, and unfair.
Harris v Canada 2000 FCA:
RATIO: Court recognizes that where an overall strong public interest arises, Court may exercise its discretion to recognize
public interest standing.
Note: the Finlay criteria held Court determine whether to recognize Harris’ public interest standing. Harris suggests that there
are a range of situations where citizens will have status to assume a law enforcement role.
Canada (AG) v Downtown Eastside Sex Worker Society 2012 SCC:
FACE: Society’s objectives include improving conditions for female sex workers who worked a such for 30 years, launch a
Charter challenge to the prostitution provisions of the CC. TJ found they should not be granted either public or private interest
standing to pursue challenge, CA granted them both. SCC held appeal should be dismissed.
ANALYSIS: Court must consider Test (3). This issue turns on whether Q3- there were not other reasonable/effective manner
the issue may be brought b4 court. SCC relaxes strict requirements finding it would be better expressed by asking {whether
manner was a reasonable and effective means to bring case to court.} (purposive approach should take into account
economic and judicial resources).
HELD: all 3 factors applied flexibly/ purposively favoured granting public interest to respondents.
A popular criticism goes as follows: “A particular court judgment has allowed for the ‘tail’ of the remedy to ‘wag the dog’ of the
substantive case.
 The tail of JR (court review of remedies) had been imposed, allowing to ‘wag the dog’ of the disciplines entire approach to
remedies and even admin law.
Remedial Option at Tribunal Stage:
 Tribunals do not have the general jurisdiction that court has to impose remedies, so remedies must be provided for within
enabling statute.
o To determine tribunals remedial options look at statute itself (generally provides list of remedies tribunal can order)
o Even where tribunals remedial power is not expressly provided, one may try and argue that, as a matter of practical
necessity, tribunal must have remedial power to do things its statute requires.
o Any enforcement power must pass constitutional scrutiny.
Challenging Administrative Action:
 Direct challenged party to admin action may challenge admin action
 Internal Tribunal Mechanisms may be provided where enabling statute specifically provides tribunals with ability to
reconsider/hear decisions administrative agencies had made.
 Jurisdictional Bodies: jurisdiction implements Act, such as Quebec Admin Justice Act, which creates a Tribunal Administif
du Quebec= super tribunal hearing ‘proceedings brought against almost all tribs/public bodies.
 External non-court Mechanism: ombudspersons, who provide forum for citizen to bring complaints regarding way that
government department/agencies have dealt with them.
When is Appeal Available?
 To determine whether Appeal from Tribunal is Available, Ask:
(1) Does the tribunal enabling statute provide for a right of appeal?
(2) What is the scope of available appeal?
(3) Is appeal available by right, or is leave required. If leave is required, who may grant it?
(4) Is a stay of proceedings automatic, or must one apply for it?
When is JR Available?
 JR is about the inherent jurisdiction of courts to oversee and check admin action in interest of the rule of law.
 Unlike Statutory Appeals, JR is the review of EXEC action beyond what the legislature has provided for.
Old Discretionary Bases for Refusing a Remedy:
 Question is about threshold of whether to grant JR, prior to considering the merits of the case and figuring out the standard
of review.
 It is fundamentally discretionary in way that appeals are not:
o PAST: Statutorily conferred admin discretion was ‘beyond law’, thus JR only if it amounted to an abuse of discretion.
Anything short of abuse of discretion threshold would fail to attract JR.
 Discretionary Grounds for Refusing JR came from:
i. Abuse of discretion
ii. Did not exhaust all avenues (JR last resort)
iii. JR brought before tribunal proceeding= premature
iv. JR remedy not granted on moot point
v. JR remedy not granted without clean hands
o Baker rejected this conceptual distinction between discretion and law, shifting to the approach of review based on more
flexible, context-sensitive factors, moving away from 5 limited grounds for refusing discretion, providing more deference.
o JUSTIFICATION: respecting, protecting and adhering to ROL implies judges should rest discretionary decision on
identifiable reasons
Current Threshold of Whether JR available:
 (1) Is Tribunal being challenged, actually a Public Body?
o Many organizations operating at arms length from government are still seen as PB, as are private bodies who have some
connection to public authority.
o Factors such as: functions, duties, power, whether its performing a public function, is it on gov payroll—All go to
determining whether particular body is performing a public or private function.
 (2) Do you have standing to challenge tribunal?
(3) Which court to appeal to for JR
(4) Stay within deadling ((30 days per FCA)
(5) Did you exhaust all other means of recourse for challenging tribunal actions.
Remedies of JR:
 Unlike an appeal, application for JR usually does not automatically stay the enforcement of tribunal order, however, they
may have power to stay the order on application.
Prerogative Writs available:
(4) certiorari: most common, defined as ‘cause to be certified’, which court required inferior tribunal or board to provide it with
the record of its proceeding for review of excess of jurisdiction
(5) prohibition: prevent lower court from exceeding its jurisdiction or to prevent a non-judicial officer or entity from exercising
a power.
(6) Mandamus: ‘we command’ is issued by court to compel a lower court or agency to perform a duty it is mandated to perform.
(7) Declaration
(8) Habeas corpus ‘produce the body’ employed to bring a person to a court.
Statutory Reform:
Statutory reforms provide for the following:
(1) simplified application procedures, ie: statute may state that application for orders mandamus shall be deemed to be
applicable for JR
(2) simplified remedies
(3) greater clarity as to who may be parties to a hearing
(4) a right of appeal
Why Reform? Substantive scope of JR was largely dictated by rules on the availability of the various public law remedies.
This created pressure for legislative/judicial reform of law governing scope and availability of JR remedies.
This created the pressure to remove unnecessary technicalities and to expand the various forms of relief to enable courts to
have more flexibility in fashioning relief that was appropriate to the circumstances of particular cases.
PROVINCES: Adopted statutes to deal with necessary concerns:
PEI Judicial Review Act 1988, provided pursuant so s.3(1), that while application must set out grounds on which
relief is being sought, application need not have to link specifically the relief in question to one or another of the
former remedies. Moreover, it provides and exclusive list of grounds on which relief can be sought.
JRPA of BC/ON: increased scope of the record that had to be produced by the decision maker at common law.
Canada (AG) v TeleZone Inc 2010 SCC:[premature JR]
FACT: R application for license reject by Industry Can. R did not seek to overturn admin decision, but bought a related civil action
for damages against AG on a number of grounds. AG asserted action could only be brought following application for JR of the
subject decision
HELD: Action for damages could be brought against Crown in Ontario Sup Court without an application for JR in Federal Court.
SIGN imposing JR as preliminary step was inappropriate, as there is clear doctrinal distinction btw Crown’s liability in tort/
contract, as the result of an admin decision and the validity of the underlying admin decision.
Vancouver City v Ward 2010 SCC:
FACT: Vancouver and BC police violated Charter rights of C due to an unreasonable search. TJ awarded damages for charter
ISSUE: SCC considered whether Gov actors can be made to pay financial damages to individuals after infringing upon their rights
under Charter
HELD: Damages may be award for Charter breaches under s.24(1) where appropriate and just, and that in this case, they were
justified in giving damages for the illegal search.
Section 18.1 FCA gives FCC exclusive jurisdiction to issue injunction, writs, grant declaratory relief. Statute equips FCC with
same remedies as provincial superior court, operating under an unmodified CL admin remedy regime.