1 Prepared using Syllabus for Jan. 2012 Administrative Law Summary
1.
Generally a. Three things to figure out: where do I go, what do I complain about, what do I ask for - forum, ground, remedy
i. Forum will typically be resolved by statute- the statute must create this statutory appeal possibility and set out the criteria by which an appeal can be brought ii. Grounds are usually procedural fairness (such as reasonable apprehension of bias) and substantive unfairness (something about the outcome of the decision that suggests the decision-making body acted inconsistently with the law that created it- interpreted their law in an unreasonable way, way, or making a decision in a capricious way, way, failing to take facts or evidence into account) iii. Remedy: in administrative law, under judicial review, you do not get a new outcome – on judicial review, review, the best you can get in that sense is a new hearing at the forum of first instance- historically the prerogative writs: 1. Certi Certiora orari: ri: to to quash quash or set set aside aside a deci decisio sion n 2. Prohi Prohibi bitio tion: n: to order order a tribu tribunal nal not not to proce proceed ed 3. Mandamus: Mandamus: to order order the the perfor performance mance of a public public duty duty 4. Habeas Habeas corpus: corpus: to to order order the releas releasee of the unlawfully unlawfully imprisone imprisoned d
2. Administrative Administrat ive Appeals v. v. Judicial Review Appeals (or “statutory right of appeal”) a. Administrative Appeals i. Reco Recons nsid ider erat atio ion n 1. Some enablin enabling g statutes statutes specifica specifically lly provide provide tribunals tribunals with with the ability ability to reconsider reconsider and and rehear decisions they have made -- usu where a particular tribunal has ongoing regulatory responsibility over a particular domain. 2. Absent Absent express express statutory statutory authorit authority y, however, however, for policy policy reasons reasons that favour favour finality finality of proceedings, a tribunal cannot reconsider or alter a final decision made within its jurisdiction. i. Appeal mechanisms mechanisms – either either to internal internal administrative administrative appellate appellate bodies or to courts courts – are the norm scope of a possible appeal is confined to what the statute expressly provides. 1. Is an appeal appeal available available as of right, right, or is leave leave required? required? If leave leave is required required,, who may grant grant it? (Reza) b. b.
Judi Judici cial al Revi Review ew i. Judicial review is discretionary 1. Judicial Judicial review review is about about inherent inherent jurix jurix of courts courts to oversee oversee and check admini administra strative tive (that (that is, executive) action in the interest of the rule of law. a. Judicial Judicial review review is the the review review of executiv executivee action action beyond beyond what the the executive executive itself itself provided for. Thus, only on judicial review will courts investigate a tribunal's procedural fairness or the alleged bias of its members. ii. Is Judici Judicial al Review Review Availab vailable? le? 1. Only for public body- Judicial review is available to check executive action. Therefore, only public bodies can be subject to judicial review. review. a. A body or tribunal will be subject to public law, and therefore judicial review, if it is “part of the machinery of government”: Martineau v. Matsqui Institution (SC, 1980) b. McDonald v. Anishinabek Police Service et al. (2006, OSCJ, Div. Ct.)- Ct finds that the Police Chief's actions (and powers to hire and fire which were derived from contract and not from statute) are “public enough” to permit judicial review-supervision of “the machinery machinery of government”. . If the body is fulfilling fulfilling a public law function, then the body in question is subject to judicial review. A body will be fulfilling a public law function if it is exercising public law functions or if the
2 exercise of its functions has public law consequences. Pre-Dunsmuir Pre-Dunsmuir c. Various factors can be used to distinguish domestic (private) tribunals from public bodies (McDonald): i. the source source of the the boar board's d's powers powers;; ii. ii. the func functio tions ns and and duties duties of of the body body;; iii. whether whether government government action action has has created created the body, body, or whether whether,, but for the body, body, the government would directly occupy the field; iv. iv. the extent extent of the governme government's nt's direct direct or indirec indirectt control control over the body; body; v. whether whether the the body has has power power over over the publicpublic-at-la at-large rge;; vi. the nature nature of of the body' body'ss members members and and how they they are are appointe appointed; d; vii. vii. how how the the boar board d is fun funde ded; d; viii. viii. the nature nature of the board's board's decision decisionss (and whether whether it serious seriously ly affects affects individual rights and interests); ix. whether whether the body's body's constitut constituting ing documents, documents, or its procedu procedures, res, indicat indicatee that a duty of fairness is owed; and x. the body's body's relati relationshi onship p to other other statutory statutory schem schemes es or other other parts parts of government
2. Standing – public interest standing if not party 3. Deadlines – e.g. Fed Ct Act gives 30 days after decision 4. Alternate remedies- he or she has exhausted all other adequate means of recourse for challenging the tribunal's actions. ( exhaustion) a. Convenienc Conveniencee of judicial judicial revie review w as opposed opposed to alterna alternate te forms forms of relief relief also also available available b. An alternative form of appeal will not be inadequate based only on unproven allegations that an appellate tribunal will suffer from the same errors or biases as the original tribunal: Harelkin tribunal: Harelkin.. c. Harelkin v. University of Regina (1979, SCC) i. A decisio decision n is made made in the departm department ent of social social work work to kick kick him out out of the program: the bad grades are likely defensible, but the reason of “being neurotic” is likely not. The two main issues before the SCC are whether the claimant had a right to be heard by the committee of the university council, and whether the discretionary remedies should be refused because the claimant should have pursued his right of appeal to the university senate before resorting to prerogative writs. ii. Ct: committee had a statutory duty to hear the claimant, which duty was not complied with- bad procedure below. below. But applications for certiorari and mandamus should not have been allowed, as the claimant ought to have exercised better alternative remedy in his right of appeal to the senate committee. iii. Where Where an alternativ alternativee remedy remedy exists, exists, in the case case of want of jurisdic jurisdiction, tion, certiorari remains available but, in each case, the court in exercising its discretion must consider the convenience and adequacy of the alternative remedy Canada Trust v. Ontario HRC (1990)- Allows P to come directly to ct to d. complain abt trust which is only avail to Christians of Br. nationality, nationalit y, even though didn’t exhaust HRC grounds. This isn’t discrimination discrimination case- it’s trust case – HRC doesn’t have power to change trust so resort Act to come to ct. to ct necessary . Question of law- no facts in dispue, and mechanism under Trustee Act
i.
Bhadauria v Board of Governors (SC 1981 ) )- The Ontario Human Rights Code foreclose any civil action based directly upon a breach thereof but is also excludes any common law action based on an invocation of the public policy expressed in the Code. The code itself has procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.
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Other her facto actors rs:: a. premature – interim judicial review fragments proceedings- but prelim ruling can be reviewed on showing of special circs that show review can’t wait b. where the issues are moot c. impossibility - where present circumstances make granting the remedy impossible d. harmless error- if the court believes the tribunal's error did not affect its overall conclusion e. Unclean hands- and where the party making the application does not come before the court with clean hands. f. Dela Delay y and and acqu acquie iesc scen ence ce
Prov Provin inci cial al vs. vs. Fed Feder eral al a. Federal Court Act – 1970 – assigned virtually exclusive review authority over affairs of fed. statutory bodies, sense that 10 superior cts adjudicating in judicial review proceedings involving fed authorities would yield conflicting results. commission or tribunal” expansively but does not reach all bodies i. S. 2 of Act defines “federal board, commission that ower existence to federal statutes—fed ct has no inherent jurix- depends on specific conferral in Fed Ct Act or in enabling legislation ii. Exclusion Exclusion for for bodies bodies or people people appointe appointed d under law law of a province province iii. Allowance for provincial habeas review review for for detentions detentions by fed statutory statutory authorities
b. Concurrent jurix- Reza v. Canada (SC 1994) i. Reza made refugee claim under Immigration act, 2-member panel decided didn’t have credible basis for claim, Federal Ct of Appeal denied Reza leave to apply to have deportation set aside. Then Reza applied to Ontario Ct (provincial) for declaratory relief asserting that Immigration Act contrary to Charter, esp. provision that leave be obtained to seek judicial review of deportation order by fed. ct. Lower ct stayed Reza’s application, holding that ct “clearly had jurix to grant relief sought…the issue is whether the ct may decline to exercise its jurix…” . Then held that jurisprudence and logic would support that this ct leave the review of immigration matters with fed court. in absence of showing that avail review process is less advantageous than provincial habeus jurix. but decision reversed by Ontario Ct Appeals, which said cts may decline to entertain habeas when applicant is attempting to bypass a statutory scheme, but here issue is not immigration case but const one and no reason to defer to expertise offed ct. P entitled to avail himself of juridical advantage he would enjoy in Ontario ct. ii. Ct holds lower ct properly exervised exervised discretion discretion b/c b/c Parliament Parliament had created a comprehensive scheme of review of immigration matters and Fed Ct was an effective an appropriate forum. 4.
S96 Co Courts a. S.96 provides provides that the federal federal exec shall appoint appoint justices justices of the country’s country’s superior, superior, county and district district courts (s.96). Provinces-establish these courts in their respective jurisdiction (s.92-14). i. Federal Federal Courts Courts Act- trial trial level level federal federal ct of Canada Canada
ii. Supreme Supreme Court Court Act (1875)(1875)- create created d Sup Ct
b. Cts developed 3-pt test to determine whether or not admin tribunal is acting like S96 Ct ( Re Residential Tenancies Act, 1979): 1979 ): i. Historical inquiry inquiry – whether the impugned power power broadly confers to a power exclusively exclusively exercised exercised by a superior, district, or county court at the time of Confederation ii. Is the impugned impugned power a “judicial” power, power, as opposed to an administrative administrative or legislative power? (A judicial power is one where there is a private dispute between parties, adjudicated through the application of a recognized body of rules, and adjudicated in a manner consistent with fairness and impartiality.) iii. Has the power power in its its institutional institutional setting changed its character character sufficiently sufficiently to negate broad conformity conformity
4 with superior, district, or county jurisdiction? 1. E.g. labour relations- court-like adjudicative functions of labour relations bd was ancillary to a broader administrative and policy-making role as administrator constituted statutory tribunals cannot constitutionally be immunized from review of decisions for c. Provincially constituted Crevier v. Quebec (1981) The trend in the case law is that, implicit in ss. 96-100, there jurisdictional questions. Crevier v. is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality.
i. Crevier v. A.G. of Quebec - Professions Tribunal, with exclusive appellate jurisdiction over the discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunal were final. SCC overturns. Procedural Fairness
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Sources
a. Common law presumption that the legislature intended procedural protection to apply i. Cts require clear statute to limit or oust procedural protection b. b.
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Other ther sour source cess i. Enab Enabli ling ng stat statut utee ii. Subordinate legis (regs and rules) iii. Policies – e.g. ministerial guidelines in Baker iv. iv. Gen Genera erall provi provinci ncial al procedu procedural ral statut statutes es v. Charter provides a constitutional backstop for procedural protection, but applies in a narrower range of circumstances than the common law. 1. s. 7 applies applies only in the the context context of deprivati deprivation on of life, life, liberty liberty,, and security security of the the person, person, so ordinary legislation could limit or even oust the application of the duty of fairness to the licensing scheme without infringing the Charter. limiting or 2. Where s. 7 is found to have been infringed, though, it is unlikely that legislation limiting ousting the duty of fairness will be considered justified under s. 1: Charkaoui (2007)
Ex post post - eme emerg rgen enci cies es requirements cannot be met without causing harm of some sort- courts may defer a. Sometimes procedural requirements after the relevant decision has been made. compliance with the duty of fairness protections until after the b. Relief Relief sought sought is usu usu int interi erim m only only c. R v. v. Randolph Randolph (1966)- withdrew provision of mail b/c believed that that mail was bein used for criminal purposes, subsequent hearing allowed.
3. Only decisions – not legislation i. Final dispositions of a matter, and only rarely will it apply to investigations or advisory processes that do not have any direct consequences ii. Not legislative decisions or functions 1. Refer Referenc encee re: Canad Canadaa Assi Assista stance nce Plan Plan (1991) (1991) iii. Cabinet Cabinet and minist ministeri erial al deci decisio sions ns 1. Are not subject to the legislative exemption per se, but it will often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be exempted from the duty: e.g. Inuit e.g. Inuit Tapirisat . iv. iv. Subordinate legislation may or may not be covered by the legislative exemption 1. Politica Politicall approval approval for such such legislatio legislation n is subsidiar subsidiary y in nature, nature, and thus thus the concern concern about interference in the political process is lessened, especially where the law-making authority has been delegated to actors outside the political process altogether, altogether, for example, independent tribunals. 2. Substance is more important than form where the legislative exemption is concerned: Homex Realty. Realty .
5 3. Policy decisions that are covered by the legislative exemption, as a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no Knight v. Indian Head . procedural protection: protection: Knight
v. Canada (Attorney General) v. Inuit Tapirisat of Canada (1980, SCC): 1.
The Court Court finds finds the Cabinet' Cabinet'ss power to be legisla legislative tive in nature nature (“legis (“legislativ lativee action action in its purest form”), in part because the legislation authorized Cabinet to overturn a decision of the CRTC CRTC on its own motion. -- an appeal here, which does not look legislative, has a more judicial character; however, however, the legislation says that what Cabinet does on appeal it can also do on its own initiative), 2. Discretion of the Governor in Council to be complete, provided he observes the jurisdictional boundaries of the legislation . No need for Cabinet to give reasons for their decision, to hold any kind of a hearing, or even to acknowledge the receipt of a petition. a. Strengthe Strengthening ning this positio position n was the considerat consideration ion of practical practical difficu difficultie ltiess inherent inherent in extending the duty of fairness, such as hearing requirements and the undermining of the Cabinet's public policy-making role. The Court's decision can be criticized for overstating these difficulties difficulties in applying the duty of fairness to Cabinet decisions -It would certainly be possible to flexibly tailor the content of the duty. 3. Facts: Bell wanted to rase rates, Inuits wanted to conditi on rate on improving access to N. Federal Cabinet's rejection of an appeal from a decision made by the CRTC allowing allowing a rate increase without allowing the petitioning group to be heard. The Cabinet heard from Bell and the CRTC and took advice from ministerial officials, but the petitioning group was essentially left out of the proceedings.
vi. Homex Realty and Development Co. v. Wyoming (Village) (1980, SCC): 1.
Legislati Legislative ve exemption exemption from from the duty duty of fairness fairness is itself itself subject subject to excepti exceptionsons- passage passage of this municipal bylaw was subject to the duty of fairness. 2. SCC considers whether the municipality owed Homex a duty of fairness, and if so, whether the duty was breached- Plainly, the motivation for the bylaw was the particular dispute between the developer and the village – was “not in substance legislative but rather quasi-judicial in character”. In these circumstances, the Court finds that the village was not allowed to couch its actions in a form (legislation) designed to oust the application of the duty of fairness. Substance is more important than form where the legislative exemption is concerned. 3. Facts: Facts: Having Having been unable unable to resolve resolve a dispute dispute with the the developer developer about about the provisio provision n of services in a subdivision, the village passed a bylaw deeming the lots purchasing by the developer not to be a registered plan of subdivision. As a result, the developer could not sell individual lots without the village's permission. Homex was not “heard” by the village per se, and although there had been a full awareness by both sides of the position of the other in the dispute, Homex did not have an opportunity to make known its position once fully aware of the village's final position.
4.
Trigg rigger er/S /Sco cope pe of of Duty Duty a. Two questions questions arise arise when judicia judiciall review review proceedings proceedings are are brought brought alleging alleging a breach breach of the duty: duty: i. What is the threshold for the application of the duty of fairness?
ii. How is the content of the duty determined? 5. Nicholson v. Haldimand Norfolk (Regional) Police Commissioners (1979, SCC): a. SC held that a general duty of “procedural fairness” applies to administrative decisions - Nicholson b.
cannot claims the procedural protections afforded to a constable with more than eighteen months' service-- but must be treated “fairly”. Responden Respondentt Board should should have told told Nicholso Nicholson n why his service servicess were no longer longer required required and and given him an an opportunity, opportunity, whether orally or in writing, to respond. i. Before there was no halfway house between the observance of “natural justice” for a constable who
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c.
had served eighteen months as a holder of public office and the arbitrary removal of a constable who had held office for less than eighteen months. ii. Holder of public office is engaged in duties connected with the maintenance of public order and preservation of the peace, to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected. But Dunsmu Dunsmuirir- no no fairness fairness needed needed for for employm employment ent decisi decisionsons- govern governed ed by K
6. Knight v. Indian Head School Division No. 19 (1990, SCC) – 3-prong Threshold test: a. Duty to act fairly does not depend on doctrines of employment law, but stems from the fact that the employer is a public body whose powers are derived from statute, powers that must be exercised according to the rules of administrative law. i. Neither the terms of the statute nor those of the contract contract of employment employment abrogate abrogate the duty duty to act act fairly in this case. ii. But if the the statute specifically excludes procedural procedural fairness, then the court court has no choice but to follow the legislature’s intent. iii. Distingui Distinguished shed pure pure master/ser master/servant vant relation relationship ship -- private private b. Dunsmuir v. New Brunswick (2008, SCC) -- Court notes that duty would not have applied in Knight. Widespread Widespread collective bargaining agreements limit arbitrary dismissal – fairness no longer limited to officeholders. Modern public office holders enjoy contractual employment relationships, and that their contracts address procedural fairness concerns. Public employment governed by K should be resolved by K, no special fairness (cf judges, ministers). Duty of fairness thus has no application to the dismissal of employees. possible for public office holders holders to be restored to 1. Under Dunsmuir Dunsmuir - it will no longer be possible their positions, since that remedy not available for breach of K.
c. The existence of a general duty to act fairly by public decision-making body will depend on the consideration of three factors (when all 3 present, duty to act fairly): i. nature of the decision to be made by the administrative body; 1. Must be sufficiently administrative or quasi-judicial. Decisions that are of a "legislative or general nature" which are based on broad policy issues rather points of law are not likely to warrant a duty of fairness. 2. Decisions must be final in nature - a decision of a preliminary nature will not trigger procedural fairness. The more final the decision, the more fairness will be required. ii. relationship existing between that body and the individual; and 1. All we we are concerne concerned d with, is is whether whether the body body is exerci exercising sing a power power stemmin stemming g from a statute or prerogative power 2. Employer Employer-empl -employee oyee relatio relationship nship in this this case. The The employer employer is a public body exercis exercising ing statutory power, power, so this is why we are concerned. iii. effect of that decision on the individual's rights.
1. There is a right to procedural fairness only if the decision is a significant one (e.g. employment) and has an important impact on the individual.
d. But it is important to respect the needs of administrative decision-makers. i. “The object is not to import into into administrative administrative proceedings the rigidity of all the the requirements requirements of natural justice that must be observed by a court, but rather to allow administrative administrative bodies to work out a system that is flexible, adapted to their needs and fair.” estab lished by S. 10 of Education Ed ucation Act - Procedural Procedu ral fairness is i s due to an employee emp loyee who is e. Facts: Officeholder, established an officeholder at pleasure, even though the employer did not need to show cause for dismissal under either the contract of employment or the statute. So extends Nicholson beyond domain of officeholders dismissable dismissable only for cause i. In the majority's majority's view, view, the appellant appellant Board made itself sufficiently available for for discussion through through meetings with the respondent and each party's concerns were made fully known to the other. The respondent thus knew the reasons for his dismissal and was provided with every opportunity to be
7 heard. The requirements of the duty to act fairly in the scope of the employer-employee employer-employee relationship relationship have therefore been met, and the respondent was properly dismissed.
7. Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC) – Content of Duty a.
Baker Facts: ii. Section 114(2) 114(2) of Immigration Immigration Act- authroizes authroizes Governor in Council to authroize minister to to exempt a person from reg made under the Act. S. 2.1 of Immigration Regulations authroizes to exempt any person under humanitarian and compassionate considerations. (H&C) the Immigration Act on the scope of iii. What is the legal effect of a stated question under s. 83(1) of the Immigration appellate review? iv. iv. Were the princip principles les of procedur procedural al fairness fairness violate violated d in this case? case? 1. participat participatory ory rights rights accord accorded ed consisten consistentt with proce procedural dural fairne fairness? ss? 2. failure failure of Office Officerr Caden Caden to to provide provide his own own reaso reasons? ns? 3. Was there there a reaso reasonab nable le appre apprehen hensio sion n of bias? bias? v. Was this discretion discretion improperly improperly exercised exercised because of the approach approach taken to the interests interests of Ms. Baker's children? 1. Given Given that the Immigr Immigratio ation n Act Act does not express expressly ly incorpora incorporate te the labguage labguage of Canadas Canadas international obligations obligations w/r/t/ Intl Convention on Rights of the Child, shd BIC test be primary consideration?
right- Baker identified identified five b. Whether this is the kind of decision that should attract some kind of procedural right- Baker factors as relevant in determining the general level of procedural fairness: the nature of the decision and the process followed in making it; i. 1. the more resembles judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness (the process provided for, the function of the tribunal, the nature of the decision-making body, body, and the determinations that must be made to reach a decision- facts & law=judicial) ii. the nature of the statutory scheme ; and the “terms of the statute pursuant to which the body operates” 1. greater greater procedura procedurall protections protections will will be required required when when no appeal appeal procedure procedure is provide provided d within the statute, or when the decision is determinative of the issue and further requests cannot be submitted iii. the importance of the decision to the individual affected; 1. The fact that a decision is administrative and affects “the rights, privileges, or interests of an individual” is sufficient to trigger the application of the duty of fairness. (Baker) iv. iv. the legitimate expectations of the parties (part of doctrine of fairness) 1. Expectation that a certain procedure will be followed, or that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise be accorded; nevertheless, the doctrine cannot lead to substantive rights outside the procedural domain o f the Convention Conventio n and their wording did di d not give rise to a 2. Facts: In this case, the articles of legitimate expectation on the part of Ms. Baker that when the decision on her H&C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded Canad a Assistance Plan (1991 )- Govt agreed to w/provinces w/provin ces to share costs for 3. Reference re: Canada social assistance and welfare programs-- Sec. 8 of the 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, or unilaterally by either party on one year ’s notice. but subsequently limited limited increase to BC, Alberata and Ontario as part of deficit reduction plan – w/o prior notice. BC: Fed govt precluded from introducing introducing a bill by virtue of the legitimate expectation that amendments would only be made to the agreements by consent? But just covers right to make representations or be consulted – no substantive rights created by legitimate expectations. Also doesn’t apply to purely legislative function. 4. Mount Sinai Hospital v. Quebec (Minister of Health and Social Services) – Ministe rial decision to cut funding from hospital after it detrimentally relied relied on promise of funding – SC held hospital was entitled to rely on previous representations of funding, but did not use
8 doctrine of legitimate expectation. Binnie concurrence: distinguishes English application of legit expectations, which rose to encompass substantive issues.
v.
the procedure chosen by the tribunal. a. Some tribuna tribunals ls operate operate pursuant pursuant to detailed detailed legisla legislation tion that that establish establishes es procedura procedurall requirements. b. When the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances- deference to the procedural choices made by the decision-maker. decision-maker.
c. Scope of procedure – “decided in the specific context of each case” (Baker) i. notice that the decision is going to be made; disclosure of the information on which the tribunal will base its decision; ii. iii.
iv. iv. v.
vi.
a. but duty duty not as high high as Stichc Stichcombe ombe (crim)(crim)- just just info info decision decision maker maker relied relied on some opportunity to participate or make views known; a. Ensure that administrative decisions are made using a fair and open procedure i. Flexible Flexible inquiryinquiry- Meaning Meaningful ful particip participation ation can can occur in differen differentt ways in different situations. —modern state couldn’t function if oral hearing required for every admin decision ii. Meaningful Meaningful opportu opportunity nity for those those affecte affected d by the decision decision to present present the various various types of evidence and views relevant to their case and have it fully and fairly considered. b. Right to make written submissions c. Oral hearing similar to that which occurs in a court i. esp. if if credibil credibility ity in in issue – Singh Singh v. v. Minister Minister (1985) (1985) ii. ii. 2(e) 2(e) BoR BoR and and s.7 s.7 Cha Chart rter er d. Opportunity to give evidence and cross-examine; Right to counsel; and a. S. 10(b 10(b), ), S.7 S.7 of char charte ter r
Oral or written reasons for its decision. 1. Not necessar necessary y at common common law- may may lead to inappro inappropriat priatee burden and and may lead lead to increased increased cost and delay, but decides necessary here a. B/c profound importance to those affected 2. But- Baker Baker provides provides an elevat elevation ion of the duty duty to provide provide reasons, reasons, to somethi something ng that will will be required as a matter of course a. Comments Comments on useful usefulness ness of reaso reasons ns and holds holds that that “in certain certain circs, circs, the the duty of of procedural fairness will require the provision of a written explanation for a decision…where decision…where the decision has important significance for the individual, when there is a statutory rt of appeal, or in other circs, some form of reasons should be required. b. Reasons Reasons demonstr demonstrate ate that that a claimant claimant has has been heard, heard, may may act as a form form of discipl discipline ine for the decision-maker c. Reasons are written for two audiences: communication of the decision to the affected parties, and for the facilitation of the court's review of the legality of the decision (i.e. where there is rt to appeal) Facts: Duty of fairness here is more than simply minimal- require full and fair consid eration of issues 2. H&C decis decision ion differ different ent from from judicia judiciall decision decision – since since discre discretion tion 3. Statutor Statutory y schemescheme- it is exception exception to general general principles principles of Canadian Canadian immigrat immigration ion law. law. 4. Lack of an oral oral hearing hearing or notice notice not necessar necessary y for H&C, H&C, particular particularly ly given given the fact that that several of the factors relevant to determining the content of the duty of fairness point toward a more relaxed standard. 5. The opportuni opportunity ty for the appell appellant ant or her childre children n to produce produce full and complet completee written written
9 documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. 6. In Ms. Baker's Baker's case, case, the provision provision of written written reasons reasons are necessary necessary,, but the requiremen requirementt was fulfilled by the provision of the notes of Officer Lorenz.
10 Independence, Impartiality, and Bias
8. At c/l, principles of natural justice/fairness are encapsulated in two central ideas. – audi alteram partem (hear the other side) a. right to be heard – audi i. fair opportunity opportunity to those who are parties parties in the controversy controversy for correcting or contradicting contradicting any relevant statement prejudicial to those parties (so basically notice and opportunity to respond). ii. heard by decider- The second requires the decision-maker to hear and listen to both sides of the case before making a decision. b. right to an independent and impartial hearing – nemo – nemo judex in sua caua debet esse (no one is fit to be judge in his own cause) i. inde indepe pend ndeent ii. No bias iii. The first is that a decision-maker decision-maker should neither neither judge her own cause cause nor have any interest in the outcome of a case before her. This This is the rule against bias. 9.
Independence nce a. Three objective conditions have been identified as necessary to guarantee judicial independence i. But Tribunals don’t need to meet same degree of independence as courts do ii. Flexible inquiry – depending on nature of tribunal, interests at stake, other indices indices of independence (e.g. oaths of office)
b. Security of tenure i. Judges- ability of the government to remove a judge for such things as rendering decisions that do not meet the government's approval. This security of tenure is guaranteed for superior judges by the constitution, s. 99. 1. BNA - S. 99, on its terms, only protects the security of tenure of superior court judges. Moreover, Moreover, ss. 96-100 do not apply to provincially appointed inferior courts, otherwise known as provincial courts.
2. Core characteristics characteristics of judicial independence include: security of tenure, financial financial security and administrative independence. 2 dimensions of judicial independence for financial and security: individual (i.e. of the judge) and institutional/collective institutional/collective (i.e. of the court or tribunal of which that judge is a member). Ref re Independence and Impartiality of Judges of the Prov. Court of PEI (1997) ii. Admin Admin - Appointm Appointment ent and and removal removal is is key in admin admin 1. Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) (2001, SCC) a. If the legisla legislation tion permit permitss it, then then legislati legislation on prevails prevails – look look to enabling enabling statut statutee b. Ct held that the enshrined const protection of judicial independence could not be translated to the context of administrative decision-making bodies. In essence, while judicial independence exists to protect the judiciary from interference by the executive branch of government, administrative tribunals are not separate from the executive. Admin tribunals “span the divide” bet executive and judicial. judicial. Will of the legislature should prevail in determining how much independence any given tribunal should have pros ecutes liquor liquo r control and licensing, licen sing, suspends suspen ds c. Facts: RCMP investigated and prosecutes license of hotel. When the Liquor Appeal Board held a hearing de novo and confirmed a suspension issued by a senior inspector with the Liquor Control and Licensing Branch, Ocean Port argued that the Liquor Appeal Board lacked sufficient independence to render a fair hearing—since appt of its members: “at the pleasure” of the Minister by statute. BC Ct. says more security required for members, decision to suspend license resembled judicial decision. 2. 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) – limited term of tenure ok so long as not serving at pleasure and not too short, dismissal for cause ok.
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3. McKenzie v. Minister of Public Safety (2006)- distinguishes Ocean Port, residential tenancy adjudicator- unwritten unwritten const guarantees of judicial independence since highly adjudicative function
c. Financial security i. ss. 100 protect the the financial security security,, respectively, respectively, of all three three types of courts courts (superior, (superior, district, and county) – but not provincial. ii. government will will not alter alter their pay for arbitrary reasons reasons such as as discontent with decisions decisions rendered. To accomplish this goal, judges are guaranteed a fixed salary under the constitution. iii. The second goal goal is a promise that that the amount amount judges are are paid will will be sufficient sufficient to keep them from from seeking alternative means of supplementing their income. iv. iv. In admin, if you're just a part-time member, or it is an honorific appointment, then are the concerns about financial security the same?
d. Institutional control i. Institutional control deals with the manner in which the affairs of the court court are administered administered – from from budgetary allocations for buildings and equipment to the assignment of cases. ii. Making sure that judges are not put in compromising situations where they may choose to make decisions in order to protect their own employment and interests, rather than for the sake of rendering decisions solely on the basis of their legal judgment. e.
Adju Adjudi dica cati tive ve inde indepe pende ndenc ncee
i. Only the person who hears the case is allowed to decide it, from audi alteram partem principle (hear the other side) 1. independence from interference by other judges – delicate in admin context b/c group needs to collaborate to further law/consistency law/consistency of outcome 2. Agency Agency members members must must write their their own decisio decisions ns (Ontario (Ontario College College of of Pharmacis Pharmacists ts Ct. Appeals 1985)
ii. Consultation w/Wider Group – ok w/law, not facts iii. Ellis-Don Ltd v. Ontario (Labour Relations Board) (2001) 1. Presumption of administrative regularity - no evidence that they discussed facts and final decision on face was law and policy. policy. Presumption cannot be overturned overturned w/o an evidentiary foundation – even though hardship in establishing evidentiary foundation foundation given deliberative secrecy. 2. Deliberative secrecy is important to safeguard independence of administrative adjudicators – even if it comes at price of more discovery. a. Prior Prior to the hearing hearing of the applica application tion for judici judicial al review review,, the appellant appellant obtaine obtained d an order compelling the chair of the board, the vice-chair who presided over the panel, and the registrar of the board to give evidence with respect to the procedures implemented by the board in arriving at its final decision. This order was reversed on appeal based on a finding of statutory testimonial immunity. immunity. b. - Without ithout such such prote protecti ction, on, there there coul could d be a chilli chilling ng eff effect ect on inst instit ituti utiona onall consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency. 3. Facts: Facts: Collective Collective bargai bargain n agreement agreement – local electric electrical al contracts contracts forgot forgot to put appellant appellantss name on document listing all employers for which it claimed rights. First draft of panel’s decision held abandonment of bargaining rights. Full bd. Meeting discussed draft – found no abandonment.
iv. iv. International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst (1990, SCC) 1.
Facts: Facts: Ontario Ontario Labour Labour Relation Relationss BoardBoard- full board board meeting meeting held to to discuss discuss draft reasons reasons of 3-
12 member panel, even though some members didn’t hear argumen. Downsides a. Fostering coherence should not compromise any panel member's capacity to decide in accordance with her conscience and opinions. i. Forum Forum where such such a consensus consensus can can be reached reached freely freely as a result result of of thoughtful discussion on the issues at hand. b. Pty’s do not have the oppty to respond to all the arguments raised at the meeting. 2.
Uphe Upheld ld bd meet meetin ings gs:: a. Full board meetings allowed the members of a large board with a heavy case load to benefit from the acquired expertise of the collective. b. Board's mandate. Structure of the Labour Relations Board was conducive to tripartite exchanges in order to use its combined expertise to regulate labour relations in a prompt and final manner. i. as long as they're not talking about factual findings, there's actually nothing wrong with influencing a decision (influence as distinct from pressure); so if a member can be persuaded that their legal position is wrong, that is a good thing c. Privative clause made it even more incumbent on the board to take measures to avoid conflicting results. (privative= no review) d. Coherence is a valid goal to be fostered so that the outcome of disputes did not depend on the identity of the decision-maker. e. Safeguards i. Parties Parties should should be advised advised of any new evidence evidence or grounds grounds and and given an an opportunity to respond. ii. There There were circumsta circumstantial ntial guarant guarantees ees present present that the meeting meeting in question question was not about “pressure” – no attendance was taken, etc.
v. Cf. Tremblay Tremblay v. Quebec (Commission des affaires socials ) (1992)- imposition of consultation consultation by member of bd who wasn’t in panel cd be inappropriate constraint. Process was different than Consolidated b/c consultation w/others was effectively compulsory when contrary to previous decisions (increase appearance of lack of independence), few safeguards (attendance taken, hand votes, minutes kept—systematic kept—systematic pressures). President expressed his opinion to members members of the quorum, inviting them to reconsider the decision, and then became a decision maker is hardly consistent with the rules of natural justice—reasonable apprehension of bias. 1. Facts: Facts: initial initial decision decision draft draft by members members of panel panel favorable favorable,, president president of commis commission sion differed, submitted to plenary meeting of commission, commission split, president of commission issued final opinion under statute. 10. 10. Impa Impart rtia iali lity ty a. No one shall be a judge in her own cause – in the narrow sense this captures personal interests being bound up with the case, and deciding in accordance with those interests. nemo judex in sua caua debet esse
b. Reasonable apprehension of bias- is whether a reasonable, well-informed person having thought the matter through would conclude that an administrative decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments. i. The grounds for the apprehension apprehension of bias must be substantial. substantial. A real likelihood likelihood or probability probability of bias should be demonstrated. Mere suspicion of bias is insufficient insufficient for the test to be met. ii. Baker- The notes of Officer Lorenz demonstrate a reasonable apprehension of bias, as the wellinformed member of the community would perceive bias when reading his written reasons. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Lorenz’s statements statements give impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that Baker was a single mother with several children and had been diasgnosed w/psychiatric w/psychiatric illness” Didn’t approach case “with impartiality appropriate to a decision made by immigration officer.”
13 iii. Re Sawyer and Ontario Racing Commision (Ont. CA 1979)- where counsel is connected w/one of parties to the hearing, reasonable apprehension of bias if ha counsel participates in drafting process Adjudicators = reasonable apprehension of bias + adjudicative independ c. Mixing Fact-Finders, Counsel and Adjudicators i. Mult Multif ifun unct ction ional alit ity y 1. Percepti Perception on by the user user that a tribunal tribunal has has the potential potential to act act as both prosecuto prosecutorr and judge in in the same matter. Generally Generally,, it has been held that overlapping functions are not a problem so long as sanctioned by statute enacted in conformity with the constitution and so long as the multifunctionality multifunctionality does not give rise to a reasonable apprehension of bias under a quasiconstitutional statute.
ii. Tribunals can seek advice of counsel – Armstrong v. Canada (1994) iii. Bovbel v. Canada (Minister of Employment and Immigration) (1994) 1.
Bd referred referred a draft draft of its written written decisio decision n denying denying P was convent convention ion refugee refugee to legal legal counsel counsel who was not member of Bd and had not participated in hearing. Bd had “reasons review policy” – submitted draft of reasons to legal advisors before issuing them to parties. Nothing wrong w/policy – just requires submission of reasons prior to final form. 2. Having come to a decision on what is essentially question of fact- whether claimant has well-founded fear of persecution for a reasons that engages the convention refugee definition – tribunal doesn’t offend justice by taking advice re: legal matters in its reasons. No likely apprehension of bias.
iv. iv. Khan v. College of Physicians and Surgeons of Ontario (Ontario Ct Appeals 1992) 1. Adjudicative Independence: Decision must be tribunal members – if reasons presented for the decision are not those of the decision-maker- real concerns about validity of the decision. Reasons for decision must be committee but can use outside assistance (ConsolidatedBathurst) – volume and complexity of modern decision-making necessitates resort to outside sources- so long as interference w/ decisionmakers conscience (Tremblay). consultation-participation by non-member lawyer 2. No Reasonable apprehension of bias- if consultation-participation in decision. Act- members of committee can’t participate in any prior 3. Facts: Health Disciplines Actinvestigation and can’t communicate, communicate, except for counsel, and any legal advice from indepepdent advisor should be made known to parties so they can make submissions of law. law. Khan argues Committee breached procedural fairness by permitting counsel to play so significiant a role—reasonable apprehension of bias. College: counsel just reviews chairman’s chairman’s draft and “assists chairman express views of committee” – revised draft went to whole committee after input from counsel. counsel. Nothing here that counsel’s counsel’s involvement compromised independence or impartiality of committee – just assisted in preparation of intermediate draft. 4. Also just just because because counsel counsel giving giving advice advice doesn’ doesn’tt make it it “legal “legal advice” advice” and counsel counsel expressly disclaimed that it was – so ok within statute.
v. Cf 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool) 1. Lawyers who investigate shd not also assist those who adjudicate- the roles of prosecutor and adjudicator can never be overlapped even if statutorily authorized 2. The Act authorizes authorizes employees of the Regie to participate in the investigation, the filing of complaints, the presentation of the case to the directors and the decision. Prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner.
vi. Cf E.A. Manning Ltd. v. Ontario Securities Commission (1999, Ont. Ct Appeal) 1. OSC issued policy statement citing 10 securities dealers as practicing unfair sales practices and then issued noice of hearing against them where commissioners would judge. Policy reflected findings of staff report – which set out in detail conduct which is subject matter of
14 second notice of hearing. Thus unfair conduct alleged in 2nd notice of hearing already been found by commissioners. commissioners. 2. Investigative role of staff and adjudicatory role of commissioners – so interwoven that reasonable apprehension of bias against prior commissioners—but commissioners could be involved in both just not on facts here. 3. Allows Allows hearing hearing to take take place place w/subse w/subsequentl quently y appointed appointed commis commissione sioners. rs. d.
Poli Policy cy Gu Guid idel elin ines es i. Thamothar Thamotharem em v. Canada Canada (Ministe (Ministerr of Citizenship Citizenship and Immigrat Immigration) ion) (2008) (2008) 1. Process Process in guidelines guidelines for examini examining ng refugee refugee applicants applicants doesn’t doesn’t fetter fetter claimant claimantss rights to fair fair hearing. Order of questioning upheld by federal ct- guidelines #7 directs members to consider facts of case before them.
15 Charter and Administrative Law
1. To access s. 7, complainants must first show “life, liberty, or security” interests are impaired by the relevant decision (vs. Knight 3-Prong) a.
Tribu Tribunal nalss allow allowed ed to to do char charter ter review review i. Nova Scotia (Workers Comp Bd) v. Martin- tribunals established by legislature (as part of exec branch) can be entitled to interpret and apply charter. charter.
b. b.
No limi limita tati tion on to revi review ew exclusive appellate jurisdiction over the i. Crevier v. A.G. of Quebec - Professions Tribunal, with exclusive discipline committees of most statutory professional bodies in Quebec. The statute provided that the decisions of the tribunal were final. SCC overturns, right to judicial review of administrative agencies was constitutionally guaranteed on jurisdictional issues.
c. Singh/Suresh- Principles of Fundamental justice include procedural fairness i. “Everyone” “Everyone” in s. 7 includes includes “every “every human being being who is physicall physically y present present in Canada,” Canada,” and the security interest “must encompass freedom from the threat of physical punishment as well as freedom from such punishment itself.” ii. Courts rely on c/l procedural fairness to interpret S.7 fundamental justice - Suresh Ct -- The principles of fundamental justice of which sec. 7 speaks, though not identical to the duty of fairness elucidated in Baker in Baker , are the same principles underlying that duty applied Baker applied Baker framework framework to assess the adequacy of procedure afforded to Suresh – so basically, basically, principles of fundamental justice become procedural fairness in this Charter context. d.
Narr Narrow ow Scop Scopee of of Acto Actors rs i. s. 32 limits limits Charter Charter to matters matters w/Parliament/provincia w/Parliament/provinciall control – McKinnon (Charter (Charter case) case) is all about whether the Charter applies to universities, hospitals, etc, yet there's no question you can get judicial review with respect to these kinds of entities and bodies
e. Oral Hearing i. The interests protected under s. 7 are of such importance that usually an oral hearing will be required when those interests interests are engaged. (Singh) 1. however however,, Wilson Wilson makes makes the point that that where the issue issue turns on credibil credibility ity,, it is hard to imagine how anything less than an oral hearing could satisfy the requirement for procedural fairness
f.
Remedy- Some Ps go s. 7 b/c the one big thing you can get under the Charter is the ability to invalidate legislation, which you can't get through the c/l route.
g.
But subst substanc ance, e, go to Oake Oakess for for admin admin revi review ew h. s. 11(d) doesn’t apply in the administrative realm, 8-14 generally out i. E.g. ss. 8-14 of the Charter don’t don’t apply to immigration immigration detentions detentions because it’s it’s a “civil detention” because it’s imposed by an administrative regime (so that’s why criminal case law does not help)
2. Singh v. Minister of Employment and Immigration (1985, SCC) threat of phys suffering too – a. Recognized that s. 7 applies to non-citizens-- Security of the person includes threat of threat of torture. caused the govt to overhaul the statutory scheme and establish the Immigration and Refugee Board to ensure that all refugee claimants receive a fair hearing in accordance with the principles of fundamental justice. b. Cannot be saved under s. 1 , because adopting administrative procedures which ignore the principles of fundamental justice merely for reasons of cost and efficiency is not sufficiently sufficiently compelling to justify the limitation of rights.
16 c. Facts: Refugee claimants had limited oppty to present their cases in oral hearings before either the decisionmaker at first instance or the IAB on appeal-- only oppty if the IAB concluded on the basis of the asylum seeker's written submissions that there were reasonable grounds to believe that the claimant could make a successful claim at an oral hearing. (No c/l right b/c enabling statute limited oral hearings.) hearings.) Oral hearing required here. v. Canada (Minister of Citizenship and Immigration) (2002, SCC) 3. Suresh v. a. S. 7, process by which determination made violates Charter- not enough procedure – Ct upheld provision in
Immigration Act that permitted Minister of Immigration to deport non-citizens who were found to be a “danger to the security of Canada”, and held Suresh did not have rt to an oral hearing, but did have the right to: i. Disclosure of materials on which the Minister would base her decision, including the memorandum from the immigration officer who initially reviewed Suresh's case. 1. Subject to privilege or other valid reasons for reduced disclosure, such as safeguarding confidential public security documents.” 2. Also Prichar Prichard d v. Ontario Ontario (HRC)(HRC)- under under c/l, priv priv allowed allowed agency to withhold withhold legal legal opinion, opinion, consistent with procedural fairness ii. Right to written reply to the claims set out in the memorandum, including claims relevant to the threat he posed to Canada and the risk of torture he would have if deported (oppty to challenge Minister’s info) iii. Reasons- Ct held that the Minister herself (and not a delegated officer) must provide “responsive” reasons that demonstrate both that the individual is a danger to Canada and that there are no substantial grounds to believe he would be subject to torture.
b. Ct also noted Deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter—unless Charter—unless exceptional circs. Reviewable on correctness, whereas other substantive findings (threat to national security, actual likelihood of torture) reviewable on deference.
c. Standard of Review:- While the Charter issue whether deportation to torture violates s. 7 was reviewable on a standard of correctness, the determinations of whether a refugee was also a threat to national security (thereby opening the door to deportation), and whether the refugee actually faced a substantial risk of torture if removed, were subject to maximum curial deference. d.
Facts: Suresh Suresh detained detained on a security security certificate certificate for links to terrorist group. Fed Ct Ct upheld the certificate certificate and, in the subsequent deportation hearing, the adjudicator found Suresh to be inadmissible as a refugee. e. Separate ongoing process called the “danger opinion” - whether the risk of danger posed by this person remaining in Canada would outweigh the risk of a well-founded fear of torture- Unlike the statutory provisions under scrutiny in Singh, Singh, Immigration Act did not require the Minister to adopt or follow any particular procedure for danger opinion. Minister notified Suresh that she intended to consider “danger opinion” and gave oppty to make submissions. After submissions, submissions, officer recommended in a memorandum to the Minister that she issue an opinion under s. 53(1)(b) that Suresh constitutes a danger to Canada. Suresh did not have the opportunity to see or respond to the officer's memorandum, which the Court described as “more like a prosecutor's brief than a statement of reasons for a decision.” Minister issued danger opinion, notwithstanding an acknowledgement that Suresh would face a risk of torture upon his return to Sri Lanka. i. Baker criteria: criteria: 1. The nature of the decision decision somewhat somewhat resembles resembles judicial proceedings, proceedings, and is of a serious nature, it is also discretionary for the Minister, so this factor (the closeness of the administrative process to the judicial process) militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. safeguards. 2. The nature of the statutory scheme suggests the need for strong procedural safeguards, because the provision sets out no procedures, particularly for a right of appeal. 3. Deportation from Canada engages serious personal, financial, and emotional consequences, and thus the importance of the right affected militates in favour of heightened procedural protections. Further, Further, because Suresh may be subjected to torture, this factor requires even more substantial protections. 4. Canada's international commitment to the Convention against Torture Torture also suggests that Suresh had some further legitimate expectations which enhance the need for procedural safeguards. (in this case and in Baker, Baker, the court is at least willing to consider international law in legitimate expectations)5. The Minister must be allowed considerable discretion in evaluating future risk and security concerns, and is free under the terms of the statute to choose whatever procedures
17 she wishes in making this decision, so the choice of procedures suggests a degree of deference to the Minister; however, however, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees. ii. The remedy available is that the case be remanded remanded to the Minister for for reconsideration, reconsideration, and Suresh Suresh is to remain in Canada until his new hearing is complete.
4. Charkaoui v. Canada (Citizenship and Immigration) (2007, SCC) a. Canadian security agencies alleged that Charkaoui and others were involved with terrorist organizationsissued security certificates against these men pursuant to s. 77 of the IRPA, IRPA, leading to their detention pending deportation. Under ss. 78-84 of the IRPA, the detention and the reasonableness of security certificates are subject to review by the Federal Court. During the review process, ex parte and in c amera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the evidence on which the certificate is based could undermine national security. security. The judge then provides to the named person a summary of the evidence, but not its sources or any other details that might compromise national security. security. If the judge determines that the certificate is reasonable, there is no appeal or opportunity for further judicial review.
b. S. 7 doubly engagedi. Liberty - persons subject to security certificates face detention pending deportation ii. Security- person's removal may be to a place where life/freedom threatened iii. No fundamental justice b/c no fair hearing – judge acting w/incomplete info-- “The principle of knowing the case to meet when liberty li berty is in jeopardy has not merely been limited by the provision allowing undisclosed material to be presented; it has been effectively gutted."
c. Not narrow enough under S.1 : To remedy the procedural shortcomings of the statutory scheme, the Court suggests that an amicus curiae (security-cleared special (security-cleared special advocate ) could be appointed to represent the named person during in camera proceedings. The Crown's failure to incorporate such a measure, or to otherwise correct the procedural deficiencies, leads to the conclusion that the violation of s. 7 could not be saved under s. 1 because the infringement did not minimally impair impair the right at stake.
5. Blencoe v. British Columbia (Human Rights Commission) (2000, SCC): a. Sexual harassment complaint- political career over, over, fam. Had to move twice, finances depleted, 30. mo before hearing scheduled. No. S. 7 b/c state hadn’t interfered w/life choices—if choices—if there was a s.7 breach – fundamental justice analysis based on common law as in suresh b. But possible that an inordinate and undue delay could result in stigmatization and an impairment of the psychological integrity integrity of the alleged wrongdoer (security interest), interest), but the threshold to cross is set very high. Standard of Review
1. Dunsmuir v. New Brunswick (2008, SCC) Standard- revised “pragmatic and functional” and now call it “standard of review analysis,” a. Two-step wo-step process process for for determi determining ning the the appropri appropriate ate std std of review review:: i. Already determined under existing case law? If so, the standard of review analysis need not be repeated, and that pre-determined standard will apply. apply. ii. If not, ct must do a contextual standard of review analysis, considering four factors: 1. Presence of a privative clause – gives ‘”rise to strong indication” of reasonable review, review, presence of appeal right suggests correctness std a. privative privative clause clause has has come to to be viewed viewed as a communic communicatio ation n from the the legislat legislature ure that courts should recognize the interpretive authority of the tribunal within its area of expertise, but that judges could exercise their rule of law powers of oversight on constitutional and jurisdictional matters. 2. Purpose of the tribunal as determined by interpretation of its enabling legislation, context in which decision made a. If acti acting ng with within in its its legi legisla slativ tivee grant grant b. E.g. Art Hauser Hauser-- labor arbit arbitrati ration on – judicial judicial defere deference nce require required. d. 3. Nature of the question at issue
18 a. A question of law that is of central importance to the legal system and beyond the specialized expertise of the tribunal—correctness) Questi Questions ons of fact fact -- reas reasona onable blenes nesss i. Will Will usually usually apply automa automatica tically lly to questions questions of fact, fact, discretion discretion and and policy ii. questions questions of mixed mixed law law and fact fact where the legal legal issues issues cannot cannot be easily easily separated from the factual issues. c. Consti Constitut tution ional al ques questio tions ns – corr correct ectnes nesss i. Regarding Regarding divisio division n of powers powers bet bet national national and provinc provincial ial d. Questions of jurisdiction- correctness i. where tribunal must explicitly determine whether its statutoty grant of power gives it authority to decide a particular matter Expe Expert rtise ise of the the tri tribu buna nall a. a discrete discrete and special specialized ized regime regime in which which the decision decision-mak -maker er has special special expertis expertise; e; and b. when the the tribunal tribunal has has particular particular expert expertise ise in the the applicati application on of a general general common common law or civil law rule in relation to a particular statutory context (adjudication in labour law) c. where where a tribunal tribunal is interpr interpreting eting its its own statut statutee or interpret interpreting ing statute statutess closely closely connected to its functions b.
4.
b. Reasonableness standard - concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law
c. Facts: P was a non-unionized civil servant employed in the DOJ in New Brunswick. Government terminated his employment, due to a number of problems, and offered him severance in lieu of notice. Mr. Mr. Dunsmuir took the position that he was entitled not just to a contractual remedy but also to fairness before being terminated (e.g. an opportunity to know the concerns of the employer and a chance to address them). A labour arbitrator arbitrator was appointed to address Mr. Dunsmuir’s challenge and concluded that fairness was indeed required, and had not been provided. The reviewing judge reversed the arbitrator’s finding. Question is whether adjusticator is allowed to inquire into employer’s reason for dismissing an employee with notice or pay in lieu of notice? Could adjudicator lookbehind the employer’s characterization of Dunsmuir’s dismissal as being not for cause. Full privative clause in statute, relative expertise of labour arbitrators in interpretation of collective agreements, legislative purpose – time-effective method of resolving employment disputes – timely and binding settlements, not of central importance to legal system. Doesn’t hold up under reasonable std—under ordinary rules of K, P could have been discharged for cause, or with or reasonable notice or with pay in lieu thereof. Wasn’t required to provide cause, only if discharged for cause is it reviewable. 2.
Scope Scope of Subs Substan tantiv tivee Reason Reasonabl ablene eness ss Revie Review w a. Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC) - unreasonable
i. The language of the legislation signals an intention to leave considerable choice to the Minister on the question of whether to grant an H&C application. (3-level review, review, pre Dunsmuir). ii. In this case, considerable considerable deference deference should be accorded accorded to immigration immigration officers exercising the powers powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet Yet the absence of a privative clause, the explicit contemplation of judicial review, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness.” Thus, the appropriate standard of review is reasonableness simpliciter. simpliciter. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. dismissive of the interests of Ms. Baker's children, and the failure to iii. Officer Lorenz was completely dismissive give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section – a reasonable exercise of power conferred by statute requires close attention to interests and needs of children.
b. Canada (Citizenship and Immigration) v. Khosa (2009, SCC)- reasonable (reversal) i. Reasonablene Reasonableness ss review review – doesn’t mean mean cts can always always substitute substitute judgmen judgment. t. Majority Majority felt that that
19
ii.
the IAD disposition was unjust un just to Khosa, but Parliament saw fit to confide that particular decision to the IAD, not to the judges. Facts: Appeal Appeal brought by permanent resident Khosa from an order that he be removed from Canada for serious criminality, criminality, having been convicted of criminal negligence causing death as a result of his "street racing." Khosa appealed the order to the Immigration Appeal Appeal Division (IAD) on H&C grounds. The IAD denied Khosa’s Khosa’s appeal. The Federal Court applied the " patent unreasonableness" standard of review and affirmed. The Federal Court of Appeal disagreed, applied the reasonable simpliciter std simpliciter std and reversed IAD. The SCC agrees with the Federal Court Court of Appeal’s Appeal’s application of the reasonableness standard, but disagrees with the result and affirms the IAD’s decision.
c. Art Hauser Centre Bd v. CUPE (2008)- reasonable (reversal) i. City created board to operate sports complex, decided to contract out concessions of complex. City was limited by K with union from contracting out concessions on permanent basis, but opening clause of K gave City rt to contract out work “having regard to the desirability of maintaining a stable work force and hacing regard to periodic peaks in work load dictating the necessity of contracting work” – City required notify and consult w/union before making decision. Std of review is reasonableness. Bd. found no peaks, and therefore contracting not justified, but lower ct. said all they had to do was notify and consult. Lower ct: Substituted her interpretation of clause for that of the board and thus incorrectly reversed bd decision under reasonableness std. d.
Calgary Calgary v. v. Alberta Alberta (Municip (Municipal al Govt Bd) (2008, (2008, ABCA) ABCA) – reasonab reasonable le (reversal) (reversal) i. The Bay is anchor tenant in shopping shopping center, center, and is required to make payments payments of property property taxes based on proportionate share. Owners of shopping centres reached settlements with city on property taxes. MGB decided that Bay was entitled to file a complaint against assessment based on statutory language, City of Calgary applied for judicial review of MGB’s MGB’s decision, lower ct applied correctness std and reversed r eversed MGB’s MGB’s holding. ii. Ct of appeals appeals – MGB interpreting own statute – subject to deference, doesn’t involve involve narrow jurix uestion and does no constitute big legal question>> Reasonable std. Upholds MGB’s MGB’s decision.
e. Stewart v. Workplace Health, Safety (2008 NBCA)- correctness (reversal) i. Appeals Tribunal Tribunal concluded concluded that “accident” “accident” in Govt Employees Employees Comp Act did not not include gradual onset of stress, since it imported standards from another statute. ii. Appeals ct said -- in in absence of privative clauseclause- and given given statutory rt of appeal, appeal, correctness correctness review applied. Disagreed w/conclusion that standards imported.
3. Reasonable Std Review for Jurix Questions within Enabling Statute a.
Public Public Service Service Alliance Alliance v. v. Canadian Canadian Fed Fed Pilots Pilots Assn (2009 (2009 FCA) FCA) i. What std std applies applies to question question of “Did “Did Bd exceeded exceeded its jurix jurix when it allocat allocated ed an employee employee to bargaining unit from which the position employee held was specifically excluded?” legis is normally ii. Dunsmuir said presumption that tribunals’ interpretation of their enabling legis reviewable on reasonableness std. Dunsmuir/Calgary, which do not possess any greater expertise than cts 1. vs. municipalities in Dunsmuir/Calgary, in delineating their jurix and did not engage adjudication or policy making expertise 2. Only caveat caveat:: Tribunal Tribunal must must have legal legal authority authority to interpre interprett and apply disputed disputed provisi provision on of its enabling provision iii. Rejects argument argument that - Whether Whether statute permitted Bd to amend amend definition of bargining unit is a jurix question and therefore must be decided correctly under Dunsmuir. Dunsmuir. 1. Dunsmuir: true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra jurisdiction…An example may be found in vires or to constitute a wrongful decline of jurisdiction…An United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) , [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting limiting the number of taxi plate licences. That case involved the decision-making powers of a municipality and exemplifies a true question
20 of jurisdiction or vires or vires.. 4.
Subs Substa tant ntiv ivee Rt Rt to to Rea Reaso sons ns a. MacDonald v. v. Mineral Springs (2008)(2008)- Appeal from from lower ct ct review of Hospital Priveleges Appeal Board, Board, where Bd concluded that it had no jurix to hear appeal re: increase of operating room time. Reasonableness applies not only to outcome of decision but to process of articulating reasons- Dunsmui said notion of deference requires a “respectful attention to the reasons offered.” Remitted to bd with direction that it explain why it concluded that it was outside it’s it’s jurix under Act. b. Khosa (2009, SC)- Maj. Opinion: Opinion: “I do not think the reference to to reasons which “could “could be offered” (but were not) should be taken as diluting he importance of giving proper reasons for an administrative decision.” Citing Baker.
Standing
1. Traditionally, AG had standing to assert purely public right through proceeding for declaratory or injunctive relief through his own motion or through relation of another person. a. Private individuals- only had standing if convinced AG to lend support to proceedings (relator proceedings). But attempts to challenge the constitutionality constitutionality of legislation by private individuals with no particular stake beyond that of being citizens and taxpayers accepted by SC- Each of these cases involved attempts to challenge the constitutionality of legislation legislation by private individuals with no particular stake beyond that of being citizens and taxpayers i. Historical general rule, Person historically can use w/o joining AG in two cases – (1) where interference in public right is such that some private rt of his is interfered with (obstruction on public highway that interferes w/private w/private rt of access from highway). (2) where P suffers suffers damage from public right peculiar to himself. ( Finlay-, citing 1903 case of Boyce v. Paddington). b. Thorso Thorson n v. v. A.G. A.G. of Canada Canada (1975) (1975) c. Nova Nova Scoti Scotiaa Board Board of Cens Censors ors v. v. McNeil McNeil (197 (1976) 6) d. Minister Minister of Justice Justice of Canada Canada v. Borows Borowski ki (1981) (1981)
2. Finlay v. Canada (Minister of Finance, 1986)- Public Interest Standing Allowed Manitoba’s social welfare legislation a. P says transfer payments made by fed. Govt to Manitoba were illegal b/c Manitoba’s
b.
3.
didn’t comply w/plan’s w/plan’s requirements. P claims to have been prejducied by alleged provincial non-compliance with conditions to which federal cost-sharing payments are made subject – alleges that prejudice caused by deduction from his monthly social allowance payment to repay an overpayment. Q of discretionary control over standing to assert a purely public right by action for declaration or injunction. P doesn’t doesn’t have standing under historicl rule rule – b/c prejudice allegedly allegedly caused is too indirect indirect to be causative. But But has public interest standing. i. Concer Concerns ns about about pubic pubic intere interest st standi standing: ng: justiciability. There are cases where not 1. Proper role of courts- addressed by requirement of justiciability. appropriate. 2. Allocation of judicial resources/need to screen out busybody – addressed by requirement that there be a serious issue raised and that a citizen have a genuine interest in the issue. 3. Determination that ct should have benefit of contending views of persons most directly affected by issue – addressed by requirement that there be no other reasonable and effective manner in which issue may be brought before ct. In other cases, AG refused to institute proceedings when requested to do so. But here, clear from position adopted by AG and he would not have consented to proceedings.
Federal Federal Council Council of of Churches Churches v. v. Canada Canada (Minister (Minister of Immigrat Immigraton) on) (1992) (1992) a. Ps co-cordina co-cordinates tes work of churches churches aimed aimed at protection protection and resettl resettlement ement of refugees refugees.. Immigratio Immigration n Act of 1988 completely changed procedures for whing is to prevent the ether applicants came w/I definition of convention refugee. Ps sue under Charter Charter and BoR. b. 3 questions (std from Finlay): i. Is there a serious issue raised as to the invalidity of the legislation in question? ii. Has it been established that P is directly affected or that has genuine interest in case?
21 iii. Is there another reasonable and effective way to bring issue before ct? c.
Another Another reasonabl reasonablee way to bring before before Ct- private private litigant litigantss- esp since great great many refugee refugee claimans claimans have have appealed decisions which affect them i. The whole purpose of granting granting status is to prevent prevent the immunization immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.
4. Vriend v. Alberta (1998, SC) – finding standing a.
Vriend and and 3 gay groups groups sought declara declaration tion that that omission omission of sexual sexual orientat orientation ion from list list of species species of discrimination was contrary to S. 15. Didn’t confine challenge to employment provisions of act. i. Genuine and valid valid interestinterest- This is not a case abt employment discrimination as distinct from other forms of discrimination that occurs w/I the private sphere – it is the denial of access to the complaint procedures of the Alberta HR Commission that is the essential element of this case, and not Ps dismissal. Exclusion of sexual orientation as a protected ground and procedures for protection of human righs. Way - No point in waiting for someone to be discriminated against in housingii. No other Effective Way wasteful of judicial resources.
5. Harris v. Canada (2000 CA) – finding standing a.
Harris, taxpayer, taxpayer, sought declaration that minister minister of national revenue revenue acted illegally in providing providing taxpayer taxpayer w/favourable private ruling while maintaining a different pubic position on taxability of funds in question. b. Justiciable – Minister acted illegally for ulterior motives – raises question of violation of act that court may assess by reference to Minster’s duty to follow act “absolutely”. c. Serious Serious issue issue – doesn’ doesn’tt just just want inrepr inrepretati etation on of section section of Act. d. Genu Genuin inee issu issuee – tax taxpa paye yerr. e. Most Effec Effective tive – Harri Harriss request request Ag to bring bring proce proceeding edingss twice. twice.
6. Energy Probe v. Canada (Atomic Energy Control Bd (1984) – Finds standing. a.
Energy Probe challenged challenged renewal renewal of nuclear reactor reactor license license on basis of bias of member of licensing authority authority,, granted public interest standing. AG wanted to be party to ensure right to appeal, but Energy Probe wanted to preclude possibility. b. Two reason reasonss for for AG standi standing: ng: i. AG has direct interest in outcome of case – if bias exists, then Bd member will be ineffective member for many decisions – and raises issues involved in part-time appointments who have interests in industry- Choosing persons to appt for Bd is public interest. ii. Question of general importance importance is raised raised – raises raises question as to composition composition of other boards similarly constituted. Public confidence for Bds in general.
7. Standing of Bd to Appeal a.
Northwest Northwest Utilitie Utilitiess v. v. Edmonto Edmonton n (1979)(1979)- can only appeal appeal jurix. jurix. i. To allow an administrative Board the opportunity to justify its action and indeed to to vindicate itself would produce a spectacle not ordinarily contemplated in our judicial traditions
b. CAIMAW Local 14 v. Paccar of Canada Ltd (1989, SC)i. Standing of Industrial Relations Council Council -- when the issue issue becomes, as it does does in relation relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the intricacies of the specialized area.—Council area.—Council had standing to make these arguments.
22 Remedies
1.
Generally Tribunal does not have general jurix >> power to impose a particular remedy must be provided for in the a. Tribunal tribunal's enabling statute. i. Many enabling statutes set out express lists of the remedies ii. Other statutes give tribunals broad, discretionary power to fashion the remedies they see fit.- They may try to develop remedies that address underlying structural or systemic problems, in a forwardlooking rather than retrospective, rights-oriented rights-oriented way. 1. McKinnon v. Ontario (Ministry of Correctional Services), (2002, Ontario Board of Inquiry, HRC): a. The issues issues are are whether whether the Minis Ministry try failed failed to to comply comply fully fully with one one or more more of the 1998 orders, and in consequence of which, the atmosphere of the Toronto Toronto East Detention Centre remains poisoned? b. The complain complainant ant need need only prove prove noncomplian noncompliance ce with the order order,, at which which point the burden shifts to the respondent Ministry to rebut the presumption that in consequence thereof the environment of his workplace remains poisoned. Although the Board concedes that the complaints only reveal a workplace that remains poisoned when examined collectively, and perhaps not individually in and of themselves, it finds that the failure of management at all levels to take McKinnon's complaints seriously and/or to properly investigate them amounts to condonation by the corporate respondent. c. Concernin Concerning g the Board's Board's remedi remedial al jurisdic jurisdiction, tion, the the broad broad and liberal liberal view view to be taken taken of a Board's authority under s. 41(1)(a) of the HRC must be seen to run to “the crafting of new orders” so as to achieve an otherwise unattainable compliance with the Act and fulfilment of the underlying purpose of the original order itself. a.
2.
Enfo Enforrceme cement nt powe powerr i. Any enforc enforcement ement powers powers held held by a tribunal tribunal must must be be granted granted to to the tribunal tribunal in in its enabling enabling statut statute, e, and must pass constitutional scrutiny. ii. More commonly commonly,, the tribunal tribunal must must make make an applicati application on in court court to enforc enforcee any order it makes. makes. Once a tribunal has converted its order into a court order, the order can be enforced in the same manner as a court judgment. A party to an administrative action may also bring an action in court against another party to enforce the tribunal's order. Many statutes also provide for quasi-criminal prosecution of persons who disobey tribunal orders.
Reme Remedi dies es on on Judi Judici cial al Rev Revie iew w review, the best you can get in that sense a. Under judicial review, you do not get a new outcome – on judicial review, is a new hearing at the forum of first instance- historically the prerogative writs i. Certiorari: to quash or set aside a decision ii. Prohibition: to order a tribunal not to proceed
iii. Mandamus: to order the performance of a public duty iv. iv. Habeas corpus: to order the release of the unlawfully imprisoned b. Certiorari -ct requires some inferior tribunal or judicial officer to provide it with the record of its proceedings, for review for excess of jurisdiction. certiorari application results in the quashing of a tribunal's order or decision—can not i. A successful certiorari substitute its decision for decision of tribunal. It is an ex post facto remedy. (Most review in US SC done by this method)
c. Mandamus (“we command”) is a writ issued by a superior court to compel a lower court or government agency to perform a duty it is mandated to perform. In practice, it is often combined with an application for certiorari (sending something back while also forcing the original tribunal to reconsider it in a procedurally fair manner).
23 i. If the court court issues directions, directions, it it must clearly clearly state what the original panel panel is to do or what what it must must refrain from doing. Those directions may only protect against unfair procedures or excess of power, and cannot direct the tribunal to decide in a particular way.
d. Prohibition is another special proceeding, issued by an appellate court to prevent a lower court from exceeding its jurisdiction, or to prevent a non-judicial officer or entity from exercising a power. i. Prohibition is used to obtain preemptive relief- not ex post facto
e. Declaration is a judgment of a court that determines the legal position of the parties, or the law that applies to them. There are two kinds of declarations: the public law variety, used to declare some government action ultra vires, and the private law variety, used to clarify the law or to declare a private party's rights under a statute. f.
These These remed remedies ies now incorp incorpora orated ted into into statut statutes es procedures – it is sufficient for a party to set out the grounds on which relief is i. Simplified application procedures sought and the nature of the relief sought
Geza v. Canada (Minister of Citizenship and Immigration) (2005, FCA):
Another tribunal practice for garnering consistency, developing policy, policy, and addressing efficiency is the use of “lead cases”. In this case, the IRB instituted a procedure through which it attempted to select one of several similar refugee claims that could be used to create a full evidential record for all. Parties, lawyers, and members were carefully selected, and the Minister was invited to participate in the hearings. The purpose of this “lead case” initiative was to enable the board to have one case in which there were informed findings of fact and a relatively thorough analysis of the relevant legal issues. After having their claims rejected, the applicants challenged the jurisdiction of the Board to conduct such an exercise, and also alleged that a perception of bias existed on the part of the Board when the lead case idea was conceived and conducted, and that the motive was to increase the rejection rate of claims by Hungarian Roma by creating a well-reasoned and welldocumented rejection precedent which would be promoted to be followed by other panels of the IRB. A lead case has two objectives: (1) it permits the IRB to establish a baseline of up-to-date and expert information on country conditions in respect of a country from which there is a sudden shift in the volume or type of refugee claim; and (2) it gives focus to the principal legal issues that arise from those facts. The Minister argued that the use of lead cases does not infringe on the independence of Board decision makers, because neither the evidence presented in lead cases nor the decisions reached in them are binding on subsequent panels, and because nothing in the concept of a lead case limits the rights of any party to call evidence or conduct their case in a manner appropriate to the requirements of that case. A tribunal's tribunal's decision is liable to be set aside for bias if a reasonable person, who was reasonably informed of the facts and had thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial. A similar test determines whether a tribunal is independent. Three preliminary considerations considerations may be added to this general proposition: (1) The standard of impartiality expected of a particular administrative decision-maker depends on context and is to be measured by reference to the factors identified in Baker in Baker . The independence of this Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, impartiality, falls at the high end of the continuum of procedural fairness. (2) The Board is charged charged with a uniquely difficult difficult mandate of of administrative administrative adjudication, and thus its procedure procedure should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nevertheless, procedures procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence. (3) The legal notion of bias connotes circumstances circumstances that that give rise to to a belief by a reasonable and informed informed observer that the decision-maker has been influenced by some extraneous or improper consideration.
24 Although the Court cannot identify any single indicator that is on its own sufficient to establish bias, it concludes on the basis of the entire factual matrix of the case that a reasonable person, who had considered every aspect of the matter and had thought it through carefully, carefully, would think that the hearing panel was biased and was not acting independently when it rejected the appellants' claims for refugee status. Reasons for the reasonable person's conclusion include the suggestion that one of the panel's two members may have been predisposed towards denying the appellants' claims since he had played a leading role in an exercise that may seem to have been partly motivated by a desire by the CIC and the Board to produce an authoritative, if non-binding, legal and factual “precedent”, which would be used to reduce the percentage of positive decisions in claims for refugee status by Hungarian Roma. The decision in this case does not necessarily mean that the factual conclusions in the lead cases are unreliable, or that subsequent decisions which have relied to any extent on the findings in them are thereby vitiated. Independence / Impartiality of Decision-Makers: in Bathurst and in Geza, these administrative bodies typically typically don't have internal hierarchies, so these bodies undertake other types of processes to ensure consistency in decision-making after Geza, the IRB abandoned the lead case approach, but has since tried other methods of reaching internal consistency attitudinal bias is the more straight-forward bias issue prior involvement with one of the parties can in some cases raise a reasonable apprehension of bias (Mackenzie Pipeline) there may also be an appearance of antagonism towards one of the parties (Baker, Newfoundland Telephone) Telephone) pecuniary interest is another aspect – the court traditionally has been pretty strict about this in the sense that if there is some kind of financial interest in the outcome, it doesn't matter whether it is big or small In terms of the identity of a decision-maker, decision-maker, at one end you've got elected officials, at the other end appointed in terms of function of the tribunal or body, at one end you've got policy/legislative and the other adjudicative/factfinding for stage of the process, at one end you've got investigative, at the other end a hearing for standard of reasonable apprehension of bias, at one end you've got generous, at the other strict •
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Independence ▪
Independence of the adjudicator is also a means of ensuring that the decision-maker is not biased – overlaps w/ reasonable apprehension of bias test. Predispose the decision-maker or institution to a particular decision or direction The source of the bias may be an attitude (Baker), or direct pecuniary bias
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