ADMINISTRATIVE LAW SUMMARY
Bezair v. Windor Roman Catholi Se!arate Shool Board "#$$%&' $ (R ")d& *)* "Div. Ct.&......................................................................................................................................*
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PART I – INTRODUCTION INTRODUCTION Appeals •
rights of appeal are purely the creation of statute
Judicial Review Procedure Act—see full NOTES Prerogative Writs—remedies requested whe it reviewed gov!t act "su#sumed i JRP • Act$ certiorari certiora ri % to quash or set aside a decisio& review rev iew certait' certait ' of decisio o prohi#itio% to order a tri#ual ot to proceed proceed i a matter& li(e a i)uctio% o prevet gov!t from actig madamus % to order the performace pe rformace of a pu#lic dut' dut ' coverse% force the gov!t o to act* ha#eas corpus corp us% issues to determie the t he legalit' of a perso+s per so+s detetio% detetio % whether o #' a private perso or pu#lic pu#lic official% with a view to orderig the release of the ulawfull' imprisoed*
PART II – ADMINISTRATIVE PROCEDURES (i) Introduction T,E R-.E O/ .AW AN0 T,E A012N2STRAT23E STATE Procedures4 5ENERA. 2NTRO0-6T2ON audi alteram alte ram partem "liste to the other side$ % ad util recetl'% it uam#iguousl' • icluded the etire rage of commo law procedural rights* 2ssues of cocer • the cocept of 7legislative7 as opposed to 7admiistrative7 ad 7)udicial7 o fuctios& the ma(ig of 7rules7 ad 7polic'7 as opposed to the resolutio of disputes& o the 7o8fial7 or 7prelimiar'7 as opposed to 7fial7 ature of some decisios& o the descriptio of the iterest at sta(e as #eig a 7privilege7 as opposed to a o 7right7& the pull associated with 7propert'7 claims as opposed to other t'pes of 7iterest*7 o
(ii) The Duty of Firne!!" Sco#e of A##$iction () %i!toric$ O&er&ie' /airess4 The Threshold—,istorical Overview Natural Justice • o audi alteram partem4 partem 4 right to a oral hearig otice o cousel4 participatory cousel4 participatory rights, rights, witnesses, cross-examinations cross-examinations,, submissions, o impartial decision-maker curret ame for Natural Justice is procedural )ustice •
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commo law rights "icludig atural )ustice$ ca #e overridde #' explicit statute of legislature
T,E TRA02T2ONA. 0O6TR2NE AN0 T,E APPEARAN6E O/ /A2RNESS
Cooper v. Board of Works for Wandsworth District !"#$%, !&$ '( &!& 'ng.C)% ER.E 6J4 • *atural +ustice does does not only apply to strictly strictly +udicial +udicial actsbroadeneddo not not o need to consider whether it was +udicialuasi-+udicial +udicialuasi-+udicial to determine whether natural +ustice applies Natural )ustice requires requires otice ad a opportuit' opportuit' to #e heard o /he district distri ct board must mus t do the thing thi ng legally 0 there must #e a resolutio 9otice:& ad% if there #e a #oard% ad a resolutio of that #oard% 2 have ot heard a word to show that it would ot #e salutar' that the' should hear the ma who is to suffer from their )udgmet #efore the' proceed to ma(e the order uder which the' attempt to )ustif' their )udgmet #efore the' proceed to ma(e the order uder which the' attempt to )ustif' their act* No harm to #oard to hear 6ooper% 6ooper% #ut great harm to 6ooper o o 2 thi( the appeal clause would evidetl' idicate that ma' e;ercises of the power of a district #oard #oard would #e i the ature ature of )udicial proceedigs NOTES • rare e;ample of collateral attac(* The r emed' #eig sought is damages% ot o )udicial review E
oard might determie% to respod* 1ART.AN0 J "dissetig$ • The ver' purpose of the pro#atioar' period was to ea#le the respodet to o decide whether it wished to cotiue his services #e'od the pro#atioar' period*
() The Eer*ence nd Su!e+uent E$ortion of the Duty of Firne!!" Nicho$!on nd ,ni*ht 9artineau v. 9atsui 9atsui 6nmate Disciplinary Disciplinary Board, 2!3":5 2!3":5 ! 7C( #:; Can.%%
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,O.02N5 Supreme 6ourt re)ected otio that certiorari ca #e used to review ol' )udicial or quasi8 )udicial fuctios% which appeared to e;pad the limits of certiorari to iclude eforcemet of procedural requiremets geerall'* no separate set of rules that constituting fairness vs. natural justice—rather there is a spectrum >ut cofied4 o the remed' #e grated ol' i cases of serious i)ustice
9*( v. Coopers < =ybrand, 2!3435 ! 7C( &3> Can.% criteria "o8e;haustive$ for determiig whether a decisio or order is oe required #' • law to #e made o )udicial or quasi8)udicial #asis* (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated? (2) oes the decision or order directly or indirectly affect the rights and o!ligations of persons? (") Is the adversary process involved? (#) Is there an o!ligation to apply su!stantive rules to many individual cases rather than$ for example$ the o!ligation to implement social and economic policy in a !road sense? Cardinal v. Director of ?ent 6nstitution. 2!3">5 ; 7C( #&$ The deial of a right to a fair hearig must alwa's reder a decisio ivalid% whether • or ot it ma' appear to a reviewig court that the hearig would li(el' have resulted i a differet decisio* .e0ai4 ?0ut' of fairess lies i ever' pu#lic authorit' of admiistrative ature that is • ot legislative% that affects a rights% privileges% or iterests idividual@ o uty of fairness applies where it affects an individual%s rights$ privileges$ or interests of individual$
?night v. 6ndian 1ead 7chool Division *o. !3 2!33:5 6 7C( #>$ 7ask.% 5ENERA. 0-T O/ /A2RNESS T,E NAT-RE O/ T,E 0E62S2ON -. There i! no $on*er need/ e0ce#t #erh#! 'here the !ttute ndte! it/ to di!tin*ui!h et'een 1udici$/ +u!i21udici$ nd dini!trti&e deci!ion! . 3fo$$o'in* Nicho$!on4 5. Deci!ion! of $e*i!$ti&e nd *ener$ nture cn e di!tin*ui!hed in thi! re!#ect fro ct! of ore dini!trti&e nd !#ecific nture/ 'hich do not enti$ !uch duty 6. A deci!ion of #re$iinry nture 'i$$ not in *ener$ tri**er the duty to ct fir$y/ 'here! deci!ion of ore fin$ nture y h&e !uch n effect T,E RE.AT2ONS,2P >ETWEEN T,E E1P.OER AN0 T,E E1P.OEE 0o!t eed to show )ust cause% #ut requires the admiistrative #od' to give the o officer holder reasos for the dismissal ad a opportuit' to #e heard* 9Nicholso:% 9sice it is a pu#lic positio: • •
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T,E 21PA6T O/ T,E 0E62S2ON ON T,E E1P.OEE o &here is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. -N0ER T,E E0-6AT2ON A6T ,avig come to the coclusio that there e;ists a geeral right to procedural o fairess% the statutor' framewor( must #e e;amied i order to see if it modifies this right 'rocedural fairness is a common law right$ and statute may modify this right -N0ER T,E E1P.O1ENT 6ONTRA6T it will be presumed, as was the case with the statute, that the parties intended o that procedural fairness would apply and it will take an explicit or clearly implicit provision to the contrary to override this presumption T,E 6ONTENT O/ T,E 0-T TO A6T /A2R. 7oth the ru$e! of ntur$ 1u!tice nd the duty of firne!! re &ri$e o !tndrd!. Their content 'i$$ de#end on" the circu!tnce! of the c!e/ the !ttutory #ro&i!ion nd the nture of the tter to e decided. 7ince the respondent could be dismissed at pleasure, the content of the duty of o fairness would be minimal ad 2 would ted to agree that otice of the reasos for the appellat >oard+s dissatisfactio with the respodet+s emplo'met ad affordig a opportuit' to #e heard would #e sufficiet to meet the requiremet of fairess* APP.26AT2ON4 6O1P.2AN6E W2T, T,E 0-T TO A6T /A2R. the dut' to give reasos eed ot ivolve a full ad complete disclosure #' the o admiistrative #od' of all of its reasos for dismissig the emplo'ee% #ut rather the commuicatio of the #road grouds revealig the geeral su#stace of the reaso for dismissal 2t was foud that through the egotiatio sessios #etwee the respodet+s o attore' ad the appellat >oard% the respodet was made full' aware of the grievaces of the >oard ad had ample opportuit' to preset his side of the stor'* therefore coclude that the respodet was properl' dismissed ad that his actio o must fail* SOP2N=A J4 @s a general rule, this category does not attract the duty of procedural o fairness because the employer can terminate the employment without cause and without giving any reason 2 her reasos% m' colleague cocludes% at BCC% that a commo law dut' of o fairess arises from 7the ature of the decisio% the relatioship e;istig #etwee the respodet ad the appellat >oard ad the impact o the respodet of the impuged decisio*7 /his precedes her detailed examination of the statute /he correct approach reuires an examination of the statute, regulations and o contract to determine whether the respondent has brought himself within the exception to the general rule that an office terminable at pleasure does not attract the duty of fairness. /o do so, provisions of the governing instruments must be identified which specifically or by implication point to a duty of fairness *
E1ER5EN62ES
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6mportant the action in uestion is interim only and is open to reassessment in the context of a subseuent hearing.
(c) 8iittion! of the Sco#e of the Duty" Deci!ion! of the $e*i!$ti&e nd *ener$ #o$icy nture •
Duasi8)udicial888888888888888888888888888888888888888888888888legislative polic'
9artineau2!3":5 27C(5 A #ure$y ini!teri$ deci!ion/ on rod *round! of #u$ic #o$icy/ 'i$$ ty#ic$$y • fford the indi&idu$ no #rocedur$ #rotection Pu#lic #odies e;ercisig legislative fuctios ma' ot #e amea#le to )udicial • supervisio
W,AT 2S A .E52S.AT23E PO.26 0E62S2ON% AN0 W,AT .E3E. O/ /A2RNESS TO >E APP.2E0 -) the ore *ener$ the i#ct of the deci!ion/ the ore $i9e$y it i! to e $e*i!$ti&e • i! the i#ct of the deci!ion diffu!e nd ffectin* rod !#ectru of the o #u$ic in *ener$$y undifferentited nner/ or !#ecific in effect. 5)ho' i! the deci!ion to e de:doe! it $oo9 to #o$icy or to d1udicti&e #rocedure • Canada @A% v. 6nuit /apirisat of Canada 2!3":5 7C( RAT2O • ;u!t ecu!e it '! n ct of cinet (*o&ernor in counci$)/ dn< en it '! iune • fro 1udici$ con!idertion:Any ct of =IC hd to co#$y '< !ttute 1ust loo( at the spectrum agai—loo( at the ature of the power • 6s it simply a dispute between parties, or a polycentric decision. o o Are the' loo(ig at the rights #etwee idividuals or are differet cosideratios ivolved* To deterine 'hether it i! #o$icy2deci!ion/ $oo9 to the !ttutory !chee • Nture of Deci!ion" o 8oo9 t 'hether the !u1ect tter ffect! nrro' *rou# of indi&idu$! 8oo9 t 'hether it i! di!cretionry deci!ion o Nture of Deci!ion2M9er Cinet:!#eci$i>ed ody of #o$icy29er! Was!t )ust a ad)udicative fact—it was a #road #ased polic' decisio—pol'cetric issue • ad #etter to loo( at the miister!s specialiFed staff /his is not the kind of decision that attracts protection of procedural fairness since it was • a legislative decision o no need for cabinet to give any reasons for re+ection, or to hold any hearing 1omex 7CC, !3":% 026=SON "disset$ •
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Bylaw was not of general applicationit was targeted at 1omex in particular, and it interfered w their property rights o *ot that municipality couldnt make the decision, but that because it was targeted, it couldnt be called legislation =ittle or no procedural protection for legislative policy decision, whereas the o +udicialadministrative decision will have substantial protection 6ourt wet #ac( to 1artieau—rights% #eefits ad iterests o Not )ust a #'law agaist all citiFes% rather at a specific group* o At miimum% ,ome; should have (ow that the' were goig to have a #'law o eacted >ut the result ma' have #ee )ust the same fiall' Just eed a opportuit' to #e heard ,ome; 0id ot get remed'% sice it was discretioar'—the #uilder #ehaved o poorl' ESTE"ma)orit'$ Statute does ot provide otice requiremets o &he !ylaw represented the culmination of an inter partes dispute on o adversarial lines !etween omex and the municipality therefore this decision was not legislative$ !ut rather uasi*judicial attracts priciple of otice ad cosequet doctrie of audi alteram partem o o
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Bezair v. Windor Roman Catholic Separate School Board (1992), 9 OR (3d) 737 (iv. Ct.) 6ourt said there was a level of fairess that applied 5uidelie Polic' said that >oard will follow the pu#lic cosultatio e;pectatios 7ince neither 9inisters nor boards own procedural guideline followed there was a • denial of procedural fairness )ublic consultation is condition precedent to a valid decision * • •
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(e )embroke Civic 1ospital v. 8ntario 1ealth 7ervices (estructuring Commission ,O.02N54 This is political decisio—o procedural fairess • Duty to consult public and other affected groups, but it was only reuired to make policy • decision it was not to act as an ad+udicator 0G eed to have procedural fairess for polic' decisio • Right to #e a#le to Hmeet the case! applica#le to adversarial decisio% ot to pol'cetric • polic' decisio ma(ig eterprise
(d) Intere!t! Protected y the Duty of Firne!! (' Webb and 8ntario 1ousing Corporation 2!34"5 28nt. [email protected] 2SS-E4 What happes whe gov!t aget tries to limit or retract a right • She was aware of the pro#lems ad she had a opportuit' to respod to those pro#lems • —this satisfied the 0O/ owed to her +hen a person applies for housing$ the person is not entitled to procedural fairness • !ecause it is not a right$ rather it is a privilege,!enefit.—moreover$ the - is not adjudicative at all
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/ut when the government !estows this !enefit on a person$ then they are entitled to procedural fairness rights (to a limited degree) when the government tries to retract the privilege. 2f a #eefit is retracted% the there is more importace attached tha a perso appl'ig— see We## case
Canadian @ssociation of (egulated 6mporters v. Canada @A% 2!33&5 ; C ;&4 C@% ,O.02N5 "6A$ • 6A reversed decisio ad said it was polic' ma(ig ad was a(i to legislatio—o right • to ma(e su#missios ,eld priciples of procedural fairess are ot applica#le to quota polic' although the' • ma' #e to idividual decisios respectig grats of quotas* o 0uggests that the !roader the affected group$ the more liely to !e a legitimate policy decision. (from dissent in omex) Statute did ot idicate that procedural fairess was iteded • No idicatio i statute that pu#lic cosultatio is required* o What applicat is see(ig is a pu#lic cosultatio process I ot cotemplated #' o statute
1utfield v. Board of ort 7akatchewan Aeneral 1ospital 2!3"#5 2@B C@5 ,O.02N5 • If the !oard affects the rights of an individual in a final decision$ then they are owed • the duty of fairness$ which will vary according to the significance of the right o Although the court of appeal affirmed this decisio% it relied o arrower grouds tha this* While the respondent was under no duty to grant hospital privileges to an applicant, the • interests rights% of the applicant were sufficiently affected to impose procedural fairness rights o Note that ,utfield did ot have a' rights here he was appl'ig for privileges for the first time there were procedural rights #ecause of the severe impact it would have o his professioal reputatio* Now cocered wG the iterest at sta(e ad whether it is feasi#le to protect this iterest • Protected private propert' rights—practice of a professio— • 0ecisios ivolvig reputatio are more protectio ",utfield$ o
=egitimate 'xpectation +here there was no common law duty of fairness owed—there will !e a duty of • fairness owed when the person affected !y the decision*maer is led to !elieve that they will have participatory rights—expecting duties of fairness to apply 8E ##$ie! on$y to #rocedur$ ri*ht!/ not !u!tnti&e ri*ht! • ature of the !u!tnti&e intere!t 4 • o ?e "i referece to the applicat+s iterest i cotiued occupatio of govermet housig$ ad o %utfie$d "i referece to the applicat+s iterest i hospital admittig privileges arisig from his traiig ad etr' ito the geeral practice of medicie% though
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iterestigl' this was ot see as geeratig legitimate e;pectatio% at least i 1c0oald J+s uderstadig of the term$ egitimate 3xpectation in anada4 an expectation of a hearing arising out of express representations $ a practice of holding such hearings or a com!ination of the two. 2 each% S66 held that the grouds for successful ivocatio of the doctrie had ot #ee made out*
8ld 7t. Boniface (esidents @ssn. 6nc. v. Winnipeg City%, 2!33:5 $ 7C( !!4: 9an.%, Sopi(a o .egitimate E;pectatio4 the principle affords a party affected by the decision • of a public official an opportunity to make representation in circumstances in which there otherwise would no such opportunity. /he court supplies the opportunity to make a representation where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation *
(eference re Canada @ssistance )lan 2!33!5 ; 7C( >;> BC% SOP2N=A J4 • &here is no support in anadian or 3nglish cases for the position that the doctrine of • legitimate expectations can create su!stantive rights. Where it is applica#le% it ca create a right to ma(e represetatios or to #e o cosulted% #ut ot a right of coset ,e saw it as procedural fairess applied to legislatio • Rules goverig procedural fairess do ot appl' to a #od' e;ercise legislative o fuctios /urthermore% it is fudametal to our s'stem of govermet that a govermet is o ot #oud #' the uderta(igs of its predecessor* RESTR26T2ONS 6ON6ERN2N5 P->.26 >O02ES • o @A #ure$y ini!teri$ deci!ion/ on rod *round! of #u$ic #o$icy/ 'i$$ ty#ic$$y fford the indi&idu$ no #rocedur$ #rotection/ nd ny ttc9 u#on !uch deci!ion 'i$$ h&e to e founded u#on u!e of di!cretion@ 7pu#lic #odies e;ercisig legislative fuctios ma' ot #e amea#le to )udicial o supervisio7
Council of Civil 7ervice Enions v. 9inister for the Civil 7ervice, 2!3">5 @C $4& 'ng . 1=%. .ord /raser of Tull'#elto said% • =egitimate, or reasonable, expectation may arise either from an express promise • given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. ... 2 the preset case the evidece shows that% ever sice 56,D #ega i KLC% prior • cosultatio has #ee the ivaria#le rule whe coditios of service were to #e sigificatl' altered* Accordigl' i m' opiio if there had #ee o questio of atioal securit' ivolved% the appellats would have had a legitimate e;pectatio that the miister would cosult them #efore issuig the istructio of MM 0ecem#er K*
urey v. (oman Catholic 7chool Board for Conception Bay Centre !33!%, ;@dmin. =( ;d% ;#$ *fld. 7C/D%
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the court reversed the )udgmet of Wells J4 on perusing the affidavits of ; of the !$ applicants for relief, the court was unable to find any evidence that those deponents had believed that the past practice would be followed in this instance implies that there must !e evidence of an actual a su!jective legitimate expectation existed.
@ttaran v. Eniversity of British Columbia !33"%, & @dmin. =( $d% && BC 7C%. / Re)ected • o the procedure was new and had been used only once previously0 very few in the affected and complaining student body knew about it at the o relevant time. it was i the ature of a istructio to staff% ot a represetatio to affected o costituecies Estoppel ad .egitimate E;pectatio estoppel as a private law cocept4 with (owledge of the promise or assurace • i questio% the applicats acted to their detrimet i such a wa' as to ma(e it iequita#le for the other part' to ow assert the strict letter of the law* Of course% )ust as private law estoppel is ow movig awa' from a' eed for proof of • actual detrimetal reliace% it ma' ot #e a#solutel' ecessar'% if the aalog' is emplo'ed% to loo( for a'thig other tha a reasoa#l' held #elief that past practice will #e followed* 9ount 7inai 1ospital v. Fuebec 9inister of 1ealth and 7ocial 7ervices% 2;::!5 ;7C( ;"! Fue.% There is% i short% o eed to resort to the doctrie of legitimate e;pectatios to o achieve procedural relief* =egitimate 'xpectation does not allow substantive relief. o 0* Promissor' Estoppel • o &he doctrine of legitimate expectations does not necessarily $ though it may$ involve personal nowledge !y the applicant of the conduct of the pu!lic authority as well as reliance and detriment. ,owever this is ot a private law case* Pu#lic law estoppel clearl' requires o a appreciatio of the legislative itet em#odied i the power whose e;ercise is sought to #e estopped* The legislatio is paramout* 6ircumstaces that might otherwise create a estoppel ma' have to 'ield to a overridig pu#lic iterest e;pressed i the legislative te;t*
(e) Non2Fin$ Adini!trti&e Action" Recoendtion! nd Deci!ion! to Pro!ecute •
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The dutie! of firne!! !hou$d not ##$y to $o'er $e&e$! 'hen there ##e$! re $$o'ed t hi*her $e&e$ ?i$$ $$o' for #rocedur$ #rotection! for non2di!#o!iti&e herin*! 'hen there re !eriou! ne*ti&e con!e+uence! to the #er!on o For e0#$e/ fct findin* y on$y occur t the $o'er $e&e$.
(e @bel and @dvisory (eview Board !343%, 34 D=( $d% $:& 8nt. Div. Ct.%0 affGd. !3"!%, !!3D=($d%!:! 8nt.C@%
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At the hearig% the law'ers as(ed for disclosure of the reports give to the #oard* 5RAN5E J4 the rules of atural )ustice should appl' otwithstadig that the proceedig will o result i a recommedatio ol' i cases such as this—de Smith tests4 o The te!t for non2di!#o!iti&e deci!ion! (1) &he importance of the decision for the applicant o Applicatio4 ol' opportuit' to avoid icarceratio—ideal case o (2) the degree of proximity !etween the investigation and the 5final6 decision and the exposure of the person invested to harm—&he influence of the lower decision on the final outcome @pplication 1ere the proximity is great The secod test of de Smith is easil' met whe oe cosiders the effect the recommedatio ad its acceptace has o the freedom of the applicats* ie* The recommedatios are usuall' followed—compels • protectio of rights o &hat is$ loo at the nexus !w, the recommendation and the final decision—&he more liely that the lower level decision will affect the final decision$ and the higher effect on the individual then more liely to have procedural fairness rights 0isclosure4 That is ot however to sa' that the reports must ecessaril' #e o revealed* Normall' he should #e give the opportuit' of perusal* Oe ca readil' imagie those reports cotaiig allegatios of fact detrimetal to the applicat which could readil' #e refuted* .ower dut' of fairess—give some opportuit' to ma(e su#missios A//2R1E0 ON APPEA. O+0riscoll J disseted o #oard 7is ot su#)ect to review #ecause the #oard+s report*** does ot #id the .ieuteat85overor The 6ourt of Appeal decided the )urisdictioal issue i favour of A#el ad o 0ivisioal 6ourt a#out the procedures NOTES /his case allowed procedural protection even though it concerned a non-binding o report, and was an administrative rather than +udicial or uasi-+udicial decision. 0ispositio made i A#el* The outcome was ot a order for productio #ut o rather a quashig ad remissio #ac( for recosideratio of the procedural claims made #' A#el ad his cousel—shows some deferece ad ot reviewed o correctess stadard*
9asters Case 2!33&5 8ntario Court of Hustice Aeneral Division%, Divisional Court &he existence of a general duty to act fairly depends on the consideration of the nature • of the decision to !e made !y the administrative !ody7 the relationship existing !etween that !ody and the individual7 and the effect of the decision on the individual8s rights. 1asters+ positio was more politicall' accouta#le ad more seior tha those o positios i *icholson ad ?night * /urther% the Premier was ot actig pursuat to a statute #ut rather was e;ercisig o a prerogative to cosider revo(ig oe of his earlier appoitmets 9more discretioar': /he applicant was given an adeuate opportunity to know the allegations against him • and to state his case before the )remier considered the matteraware of allegations and had opportunity to be heard.
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(iii) Con!titution$ Thre!ho$d!" 8ife/ 8ierty nd Security of the Per!onB The 6harter of Rights ad /reedoms /he Charter and the Bill of (ights 7ources of )rocedural )rotection Bill of (ights * a% the right of the individual to life, liberty, security of the person and en+oyment • of property , and the right not to be deprived thereof except by due process of law M* o law of 6aada shall #e costrued ad applied so as to • e% deprive of the right to a fair hearing in accordance with the o principles of fundamental +ustice for the determination of his rights and obligations. federal statutes ol' • Charter C* Ever'oe has the right to life% li#ert' ad securit' of the perso ad the right ot to • #e deprived thereof e;cept i accordace with the priciples of fudametal )ustice*
*ational @nti-)overty 8rganiIation v. Canada @ttorney-Aeneral% !33:%, #: D=( &th% 4!; C@% 2 must agree with the appellat ad the iterveers that s* M"e$ of the 6aadia >ill of • Rights ca have o applicatio i this matter*
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2t was held as earl' as K #' the Supreme 6ourt that sectio C have a su#stative as well as a procedural compoet "Referece re >6 1otor 3ehicle Act% 9K: M S6R LB ">6$ The ol' form of procedural discrimiatio that couts% therefore% is oe that has o the itetio or effect of discrimiatig agaist persos As for section !! ad its guaratees of 7a idepedet ad impartial tri#ual%7 of o ureasoa#le dela' i the coduct of proceedigs% ad of presumptios of iocece% its direct effect has #ee cofied to crimial proceedigs ad those with 7true peal 7 cosequeces7
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7ingh v. Canada 9inister of 'mployment and 6mmigration% 2!3">5 ! 7C(!44JCan.% W2.SON J "0ic(so 6J ad .amer J cocurrig& Ritchie J too( o part i the )udgmet$ •
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2 summar'% 2 am of the view that the rights which the appellats are see(ig to assert are oes which etitle them to the protectio of s* C of the 6harter* o 2 am prepared evertheless% to accept for preset purposes that writte su#missios ma' #e a adequate su#stitute for a oral hearig i appropriate circumstaces* 9undamental justice must include procedural fairness o Uni!ed %&e n o##ortunity to 9e their c!e In particular$ I am of the view that where a serious issue of credi!ility is o involved$ fundamental justice reuires that credi!ility !e determined on the !asis of an oral hearing ./ 2t seems to me that% as a matter of fudametal )ustice% a refugee claimat would #e etitled to discover' of the 1iister+s case prior to such a hearig* 2 am accordigl' of the view that the procedures for determiatio of refugee o status claims as set out i the 2mmigratio Act% KCB do ot accord refugee claimats fudametal )ustice i the ad)udicatio of those claims ad are thus icompati#le with s* C of the 6harter* >EETQ J "Este' ad 1clt're JJ cocurrig$4 2t violates the principles of fundamental +ustice under s. ;e% of the Bill of (ights o to not allow an oral hearing in this case, /ut s. 2(e) does not impose an oral hearing in all cases—&he most important o factors in determining the procedural content of fundamental justice in a given case are (1)the nature of the legal rights at issue and (2)the severity of the conseuences to the individuals concerned. ... @lso, When there the case will turn on the findings of fact and credibility, need to o have the right to make oral submissions. E;tet of applicatio of priciple 0epeds o legal rights at issue ad o cosequeces to applicat
Chiare66i v. Canada 9inister of Hustice% 2!33;5 7C( 4!! Can.% /A6TS • As a result% 6 ad his cousel were e;cluded whe detailed evidece was give o #' the R61P as to 6+s ivolvemet i orgaiFed crime* While a summar' of that evidece was later provided% it was without referece to the R61P+s sources of iformatio* ,O.02N5 • ,owever% the state also has a cosidera#le iterest i effectivel' coductig o atioal securit' ad crimial itelligece ivestigatios ad i protectig police sources* 7ince he had o information that disclosed the investigation of his involvement in drug trafficking and a summary of surveillance regarding the murder allegation the procedural opportunities to respond such as calling a witness or cross-examining the (C9) and the competing interests at play 2security of informant5, 6 conclude that the o procedures followed by the (eview Committee in this case did not violate principles of fundamental +ustice *
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5od#out v* .ogueuil "KKC% S6R$ /acts 4 6it' of .ogueuil made a coditio of emplo'met to live withi cit' #ouds% ad whe respodet moved to aother muicipalit'% she was fired* 2ssue4 Are muicipalities #oud #' the 6harter 0id this particular actio violate s* C of the 6harter ,eld 4 Appeal upheld* es to #oth questios* Re!trictin* n Indi&idu$! choice of re!idence ffect! her !. ri*ht! to $ierty
@uthorson =itigation Auardian of% v. Canada @ttorney Aeneral% 7upreme Court of Canada Hudgment Huly !4, ;::$ ,O.02N54 • 7ection ;e% of the Bill of (ights applies only to guarantee the fundamental +ustice of • proceedings before any court, tribunal, or administrative body that determines individual rights and obligations. 7ection ;e% does not impose upon )arliament the duty to provide a hearing before the • enactment of legislation. The >ill of Rights protects ol' those rights that e;isted at the time of its passage i • KB* At that time it was udisputed% as it cotiues to #e toda'% that Parliamet had the right to e;propriate propert' if it made its itetio clear*
RE6ENT 0E3E.OP1ENTS 5osseli • S*C dG give protectio for su#sistece ad welfare rights o Procedural protectio dG appl' to ecoomic rights% icludig social welfare o 1a' #e commo law procedural rights% #ut ot rights from 6harter s* C 6haoulli • ,ealth care waitlist for surger' o 0G violate securit' of perso o
What life, liberty, and security of the person rights are protected by the CharterK 6ustod' matters o 6rimial matters o 1etal health matters o o Priso disciplie Parole o The courts #ega to icrease what was protected o
Wilson v. BC medical services commission!3"" 2BC C@5 /A6TS • New doctors were required to appl' for a practitioer!s um#er which allowed o them to #ill the provice
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The tie/ #$ce/ nd #ur#o!e of #rctice cou$d e re!tricted ,O.02N5 o The $e*i!$tion '! not in ccordnce 'ith PF it '! !ed u#on the ##$iction of &*ue nd uncertin criteri nd $eft !u!tnti$ !co#e for ritrry conduct o
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Blencoe v. BC 1uman (ights Commission ;::: 7CC ,O.02N5—1a)orit' "1c.achli% .!,0% 5othier% 1a)or% >astarache$4 • Applicatio of 6harter • &he harter applies to the actions of the /: . Otherwise% oe could have o tri#uals set up #' the govermet i order to avoid the 6harter* o Furtherore/ !. cn e0tend eyond criin$ $'% at least where there is state actio which directl' egages the )ustice s'stem ad its admiistratio* =iberty 6nterest • ;i!erty< is engaged where state compulsions or prohi!itions prevents freedom o from maing important and fundamental life choices. ,owever% the state has ot preveted > from ma(ig a' ?fudametal persoal o choices@* Therefore% the iterests sought to #e protected i this case do ot fall withi the o ?li#ert'@ iterest protected #' s* C* urthermore, the s. 4 rights of Lliberty and security of the personM do not o include a generaliIed right to dignity. Ps'chological Stress • Oe does have a right to #e free from serious state imposed ps'chological stress o in order for !tte2induced #!ycho$o*ic$ !tre!! to e rech of !ecurity of o the #er!on/ it u!t eet t'o re+uireent!" the #!ycho$o*ic$ hr u!t re!u$t fro the ction! of the !tte nd it u!t e !eriou! ,ere% the ma)or harm to the respodet was caused ot #' the govermet #ut #' o the pu#licit' surroudig the allegatios themselves* 0ela' i the hearig4 • There is o costitutioal right outside of the crimial cote;t to #e ?tried@ o withi a reasoa#le amout of time* The ma)orit' of the 6ourt of Appeal erred i trasplatig s* "#$ priciples set o out i the crimial law cote;t to huma rights proceedigs uder s* C* In order to de$y to e n u!e of #roce!! t for n dini!trti&e $' o !tnd#oint/ there u!t e #roof of !i*nificnt #re1udice (in n e&identiry !en!e) 'hich re!u$t! fro n uncce#t$e de$y deterintion of 'hether de$y i! inordinte i! not !ed on the $en*th of o the de$y $one/ ut on contextual factors" conte0tu$ n$y!i!" nture of the c!e nd it! co#$e0ity/ the #ur#o!e nd nture of the #roceedin*!/ nd 'hether the re!#ondent contriuted to the de$y or 'i&ed the de$y/ '! there #re1udice 0isset 2 Part "2aco#ucci% >iie% Ar#our% .e#el$4 • C899'*/ S* C will ol' #e applied i e;treme circumstaces o
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/or e;ample% compellig testimo' or forcig the productio of documets
"iv$ Procedural Propriet'4 The Stadard of Review ad Some 5eeral Thoughts (&) The Content of Procedur$ Firne!! () Introduction nd An$ytic$ Fre'or9 Baker v. Canada 9inister of CitiIenship and 6mmigration% 2!3335 ; 7C( "!4 Can.% /A6TS • 0ecisio4 isufficiet humaitaria ad compassioate grouds to warrat o processig This letter cotaied o reasos for the decisio* o /his does not use the word Ndiscretion, but the court interpreted it thus The Statutor' Scheme ad the Nature of the 0ecisio • PRO6E0-RA. /A2RNESS • The fact that a decisio is admiistrative ad affects 7the rights% privileges o or iterests of a idividual7 is sufficiet to trigger the applicatio of the dut' of fairess4 6ardial v* 0irector of =et 2stitutio 9K: M S6R BL "6a*$% applica#le to this case "$ /actors Affectig the 6otet of the 0ut' of /airess • o NATURE OF DECISION AND T%E PROCESS /he more the process resembles +udicial decision making, the more likely it is that procedural protections closer to the trial model will be reuired by the duty of fairness. In e&$utin* the #roce!!/ con!ider the function of the triun$/ • the nture of the deci!ion29in* ody/ • • the deterintion! tht u!t e de to rech deci!ion o STATUTOR SC%EME AND STATUTE CREATIN= T%E 7OD 5reater procedural protectios% for e;ample% will #e required whe o appeal procedure is provided withi the statute% or whe the decisio is determiative of the issue ad further requests caot #e su#mitted— fialit' SI=NIFICANCE OF DECISION FOR RECIPIENT" o The more importat the decisio is to the lives of those affected ad the greater its impact o that perso or those persos% the more striget the procedural protectios that will #e madated 8E=ITIMATE EGPECTATIONS" o The legitimate e;pectatios of the perso challegig the decisio ma' determie what procedures the dut' of fairess require i give circumstaces* Our 6ourt has held that% i 6aada% this doctrie is part of the doctrie of fairess or atural )ustice% ad that it does ot create su#stative rights* TRI7UNA8S C%OICE OF PROCEDURE" o The dut' of fairess should also ta(e ito accout ad respect the choices of procedure made #' the agec' itself%
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particularl' whe the statute leaves to the decisio8ma(er the a#ilit' o to choose its ow procedures% or whe the agec' has a e;pertise i determiig what o procedures are appropriate i the circumstaces list of factors is ot e;haustive* o "M$ .egitimate E;pectatios "$ Participator' Rights (H)The Pro&i!ion of Re!on! 2 cases such as this where the decisio has importat sigificace for the o idividual% whe there is a statutor' right of appeal% or i other circumstaces% some form of reasos should #e required* () Re!on$e A##rehen!ion of 7i! Re!on$e A##rehen!ion of 7i! ##$ie! to $$ ii*rtion officer! 'ho o #$y !i*nificnt ro$e in the 9in* of deci!ion!/ 'hether they re !uordinte re&ie'in* officer!/ or tho!e 'ho 9e the fin$ deci!ion The test for reasoa#le apprehesio of #ias 4 o 9T:he apprehesio of #ias must #e a reasoa#le oe% held #' reasoa#le ad right mided persos% appl'ig themselves to the questio ad o#taiig thereo the required iformatio* *** 3T4ht te!t i! @'ht 'ou$d n infored #er!on/ &ie'in* the tter re$i!tic$$y nd #rctic$$y nd h&in* thou*ht the tter throu*h conc$ude. ?ou$d he thin9 tht it i! ore $i9e$y thn not tht 3the deci!ion29er4/ 'hether con!ciou!$y or uncon!ciou!$y/ 'ou$d not decide fir$y.@ The !tndrd! for re!on$e ##rehen!ion of i! y &ry/ $i9e other !#ect! of #rocedur$ firne!!/ de#endin* on the conte0t nd the ty#e of function #erfored y the dini!trti&e deci!ion29er in&o$&ed" The i! doe! not h&e to e ctu$/ it on$y need! to ##er to re!on$e out!ider tht there i! i! RE32EW O/ T,E ESTANT23E RE32EW$ "$ The Approach to Review of 0iscretioar' 0ecisio81a(ig Definition" Di!cretion refer! to deci!ion! 'here the $' doe! not dictte o !#ecific outcoe/ or 'here the deci!ion29er i! *i&en choice of o#tion! 'ithin !ttutori$y i#o!ed !et of oundrie!. Whe the parliamet gives a discretioar' power% this suggest that there should o #e more deferece 3Pre279er con!idertion!4 Deci!ion! c$!!ified ! di!cretionry y on$y e o re&ie'ed on $iited *round! !uch ! the d fith of deci!ion29er!/ the e0erci!e of di!cretion for n i#ro#er #ur#o!e/ nd the u!e of irre$e&nt con!idertion! /he J o pragmatic and functional J approach recogniIes that standards of review for errors of law are appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others entitled to less Three stadards of review have #ee defied4 patet ureasoa#leess% o reasoa#leess simpliciter% ad correctess •
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6n my opinion the standard of review of the substantive aspects of discretionary decisions is best approached within this framework o /he pragmatic and functional approach takes into account considerations such as 5/i!eault6 !%the wording of the enactment conferring +urisdiction on the administrative tribunal, 2privative clause, whether it is an entitlement5 ;%the purpose of the statute creating the tribunal, the reason for the tribunals existence, $%the area of expertise of its members and &%the nature of the problem before the tribunal. It includes factors such as whether a decision is =polycentric= and the intention revealed !y the statutory language. &he amount of choice left !y 'arliament to the administrative decision* maer and the nature of the decision !eing made are also important considerations in the analysis After >a(er% ow 'ou appl' the P/ test for eve discretioar' measure o "M$ The Stadard of Review i This 6ase The fir!t fctor i! the #re!ence or !ence of #ri&ti&e c$u!e/ nd the o 'ordin* of tht c$u!e Pushpaatha shows that the e;istece of this provisio meas there should #e a lower level of deferece o issues related to the certified questio itself* o The !econd fctor i! the e0#erti!e of the deci!ion29er. o The third fctor i! the #ur#o!e of the #ro&i!ion in #rticu$r/ nd of the Act ! 'ho$e. o The fourth fctor out$ined in Pu!h#nthn con!ider! the nture of the #ro$e in +ue!tion/ e!#eci$$y 'hether it re$te! to the deterintion of $' or fct!. The appropriate stadard of review is reasoa#leess simpliciter* o Was This 0ecisio -reasoa#le >n unreasona!le decision is one that$ in the main$ is not supported !y any o reasons that can stand up to a somewhat pro!ing examination. o Deterinin* 'hether the ##roch t9en y the ii*rtion officer '! 'ithin the oundrie! !et out y the 'ord! of the !ttute nd the &$ue! of dini!trti&e $' re+uire! conte0tu$ ##roch/ The O#)ectives of the Act o 2teratioal .aw o o The 1iisterial 5uidelies 6ON6.-S2ONS AN0 02SPOS2T2ON Therefore% #oth #ecause there was a violatio of the priciples of procedural o fairess owig to a reasoa#le apprehesio of #ias% ad #ecause the e;ercise of the , 6 discretio was ureasoa#le% 2 would allow this appeal* o
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2A6O>-662 J "6or' J cocurrig$4 2 agree with .+,eureu;80u#e J+s reasos ad dispositio of this appeal% e;cept o 2 do ot agree with the approach adopted #' m' colleague% wherei referece is o made to the uderl'ig values of a uimplemeted iteratioal treat' i the course of the cote;tual approach to statutor' iterpretatio ad admiistrative law%
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7uresh v. Canada 9inister of CitiIenship and 6mmigration% 2;::;5 ! 7C( $ Can.% >a(er • o =reter #rocedur$ #rotection! ... 'i$$ e re+uired 'hen no ##e$ #rocedure i! #ro&ided 'ithin the !ttute/ or 'hen the deci!ion i! deterinti&e of the i!!ue nd further re+ue!t! cnnot e !uitted o The *reter the effect on the $ife of the indi&idu$ y the deci!ion/ the *reter the need for #rocedur$ #rotection! to eet the coon $' duty of firne!! nd the re+uireent! of fundent$ 1u!tice under !. of the Chrter.
() Sttutory Po'er! Procedure Act nd Other =ener$ Procedur$ Code! 7tatutory )owers )rocedure @ct (78 !33:, c. 7.;;, as amended !33$, c. ;4, 7ched.0 !33&,c.;4,s . >#0 !334,c.;$,s. !$0!333,c. !;, 7ched. B., s. !# Opage $:; to $$; *"$ • *L"$ • * • K* • • * • *"l$ • *"$ • B* • K*"$ • M*M"$ • M*"$ "M$ • M*"$ "M$ • NOTES • • •
E;clusio of the SPPA is ot ecessaril' a e;clusio of atural )ustice* /or the purpose of this course% the SPPA will most pro#a#l' #e e;cluded #' statute* 0oes NOT appl' where there is o oral hearig o where it is ol' a recommedatio "ot a decisio$ o o whe it is doe #' legislator where the rules of civpro appl' "mediatio$ o o8ad)udicative decisio o
(c) Or$ %erin*! •
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/raditionally, an oral hearing was usually reuired as an element of natural +ustice although not always* =omo 6ostructio 2c* v* 6ommissio des Relatios de Travai du Due#ec% 9KB: *icholson4 clearl' left the discretio o whether to proceed #' wa' of oral or writte hearig i the hads of the >oard of 6ommissioers of Police* 0ingh" An or$ herin* i! not nece!!ri$y uni&er!$ co#onent of the @#rinci#$e! of fundent$ 1u!tice@ under !ection of the Chrter/ $thou*h there i! need for !uch #rocedure @'here !eriou! i!!ue ! o to credii$ity i! in&o$&ed.@:confired in Sure!h.
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6laims to a oral hearig are also oes that are situatio sesitive i the sese that their ecessit' ma' deped o the matters that are at issue i the particular proceedigs as opposed to #eig a feature of all e;ercises of the relevat statutor' power
9asters v. 8ntario !33&%, !" 8( $d% >>! Div. Ct.% The fct tht it '! #o$itic$ office t #$e!ure inf$uenced the fct tht he did not • h&e certin ri*ht!:therefore $$ he de!er&ed i! $o' !tndrd of firne!! o 1asters is ol' etitled to hear ?the #road grouds7 of the accusatios #ut ot 7ever' detail7— /urthermore% 1asters was i fact give the opportuit' #' the Premier to ma(e legal • a statemet ad to respod to all additioal details—ot requirig a oral hearig
?han v. Eniversity of 8ttawa !334%,$&:($d%>$>C@% 1AJOR2T • 0eial of Procedural /airess o /irst% ad most importat% the 6ommittee should have give a oral hearig #ecause her credi#ilit' was a critical issue o her appeal* 7y n or$ herin*/ I en herin* in 'hich !he hd n • o##ortunity to ##er in #er!on efore the Coittee nd n o##ortunity to 9e or$ re#re!enttion! to it. Note4 ot li(e a trial hearig—o opportuit' to cross8e;amie% • questio Third% the 6ommittee should have give 1s* =ha a opportuit' to correct or cotradict the three 7factors7 it relied o i its decisio* /ecause s. @han8s appeal turned on her credi!ility and !ecause of the o serious conseuences to her of an adverse finding$ fairness reuired an oral hearing. She doe! not h&e to h&e !ho'n ctu$ #re1udice22She need on$y !ho' tht o the CoitteeJ! rech of it! duty of firne!! y re!on$y h&e #re1udiced her 02SSENT "/ila'so$4 • Or$ %erin* 'ou$d h&e not chn*ed the outcoe o This was ot a matter which tured o credi#ilit'* There were o allegatios o made agaist the appellat ad the proceedigs were ot adversarial i ature* RE1E02ES4 • Need to !ho' tht the conc$u!ion 'ou$d h&e een different outcoe if the o #rocedure '! different if you e0#ect to o&erturn deci!ion. >ut if the outcome was ot pre)udiced #' appl'ig the wrog procedure% the the o court will ot overtur the rulig
(d) The Ri*ht of Coun!e$ •
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2 most hearig situatios% the right of the parties to r epresetatio #' cousel or a aget is assumed ad% ideed% i ma' cases will #e provided for statutoril'* 2volves Right to cousel o o Right to particular cousel Participator' rights of cousel o /udig of cousel through legal aid o
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(e 9ens Clothing 9anufacturers @ssociation of 8ntario and /oronto Hoint @malgamated Clothing and /extile WorkersG Enion !343%, ;; =@C ;d% $;", uashed !:& D=( $d% &&! 8nt. Div. Ct.% 2troducig law'ers would mea a loss of efficiec' ad e;pediec' • SO-T,E J4 • A atural perso i the idustr' i questio does ot have a a#solute right to o represetatio #' legal cousel* /urthermore% such represetatio would alwa's #e permissi#le #' agreemet% or o wheever the ar#itrator e;ercised his discretio i favour of permittig it* In view of the vital importance of the controversy to the applicant company$ o and the apparent complexity of the matter !oth in fact and in law $ natural justice$ in my view$ reuires that the applicants !e represented !y legal counsel at the ar!itration hearing without any limitation$ even if the applicants had no a!solute right thereto. 6O11ENT • /hey can cut the lawyer off on certain points if the tribunal is sufficiently o knowledgeablethis would not violate the right to counsel this depends on the *ature of the )rocess and what is intended from participation
(e )arrish 2!33$5;C#:/D% ,O.02N5 • -dou#tedl' the scope of the fairess priciple depeds o the cosequeces o ad ature of the iquir' as well as the repercussios o the idividuals ivolved* 6n this particular case, a witness could be faced with a negative report seriously o or adversely affecting his rights and his reputation without being given a fair opportunity to present his case with the assistance of counsel. The duty to ct fir$y i#$ie! the #re!ence of coun!e$ 'hen cointion of o !oe or $$ of the fo$$o'in* e$eent! re either found 'ithin the en$in* $e*i!$tion or i#$ied fro the #rctic$ ##$iction of the !ttute *o&ernin* the triun$" (1) where an individual or a witness is su!poenaed$ reuired to attend and testify under oath with a threat of penalty7 (2) where a!solute privacy is not assured and the attendance of others is not prohi!ited7 (") where reports are made pu!lic7 (#) where an individual can !e deprived of his rights or his livelihood7 or (A) where some other irrepara!le harm can ensue. I do not intend thi! $i!t to e e0hu!ti&e • o The >oard ma' #e perfectl' free to prohi#it the attedace of more tha oe cousel ad it would #e up to the ivestigator to determie if the presece of more tha oe would seriousl' impede the progress of the ivestigatio . 2 these circumstaces the procedural fairess requires that the witess #e o permitted to #e accompaied #' cousel whe at the iquir'* E;pediec' does ot outweigh the eed for cousel o Dehghani v. Canada 9inister of'mployment and 6mmigration%, 2!33$5 ! 7C( • !:>$ Can.%.
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/he principles of fundamental +ustice do not include a right to counsel in these circumstances of routine information gathering. ederal Court of Canada was influenced by an 'nglish +udgment, ( v. 7ecretary of 7tate for the 1ome Department, ex p. /arrant, 2!3"&5 ! @ll '( 433 FB%. o We#ster J said4 the followig are cosideratios which ever' #oard should ta(e ito accout whe e;ercisig its discretio whether to allow legal representation some are only applicable to prison context, but amend as needed% !. /he seriousness of the charge and of the potential penalty. 2. +hether any points of law are liely to arise $. Capacity of a particular prisoner to present his own case. #. 'rocedural difficulties—when prisoners are not allowed to call witnesses and directly cross*examine or test evidence A. &he need for reasona!le speed in maing their adjudication #. /he need for fairness as between prisoners and as between prisoners and prison officers. o
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1oward v. 7tony 9ountain 6nstitution !3">%, !3 D=( &th% >:; C@% 2SS-E4 What is i issue is thus solel' whether the appellat had a udeia#le right to • cousel ad% more particularl'% whether s* C of the 6aadia 6harter of Rights ad /reedoms guarateed him that right* T,-R.OW 6J4 ,O.02N5 • o 6 am of the opinion that the enactment of s. 4 has not created any absolute right to counsel in all such proceedings. o Whether or ot a imate+s request for represetatio #' cousel ca lawfull' #e refused is ot properl' referred to as a matter of discretio #ut is a matter of right where the circumstaces are such that the opportuit' to preset the case adequatel' calls for represetatio #' cousel &he right to representation !y counsel will depend on o (1) the circumstances of the particular case$ (2) its nature$ (") its gravity$ (#) its complexity$ (particularly if dealing with legal issue) (A) the capacity of the inmate himself to understand the case and present his defence. 3xpeditiousness too. &he list is not exhaustive. APP.26AT2ON • ;#4 days of earned remission was in +eopardy6n my view, that alone suggests o his need of counsel. lack of particulars of offences Conviction on the two of the charges to which he pleaded not guilty might result in consecutive losses of $: daysG remission without reference to the vague and difficult charge
*ew Brunswick 9inister of 1ealth and Community 7ervices% v. A. H.% 2H.A.5 2!3335 $ 7C(&#*B% .A1ER 6J "5othier% 6or'% 1c.achli% 1a)or ad >iie JJ cocurrig$4 •
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6 would like to make it clear that the right to a fair hearing will not always reuire an individual to be represented by counsel when a decision is made affecting that individualGs right to life, liberty, or security of the person 7.4 rights%. 6n particular, +hether it is necessary for the parent to !e represented !y counsel is directly proportional to the seriousness and complexity of the proceedings$ and inversely proportional to the capacities of the parent. Sectio Aal'sis4 O the #asis that the o#)ective of this polic' cotrollig legal aid e;peditures is pressig ad su#statial% that the polic' is ratioall' coected to that o#)ective% ad that it costitutes a miimal impairmet of s* C% 2 fid that the deleterious effects of the polic' far outweigh the salutar' effects of a' potetial #udgetar' savig
(e) Di!c$o!ure nd Offici$ Notice NOT26E 'ht con!titute! !ufficient di!c$o!ure (79er):the nture of the deci!ion nd 'ht • i! t !t9e Notice must #e reasoa#le • Peo#$e de!er&in* notice re the #rtie! on 'ho the deci!ion 'i$$ h&e effect • 2f 'ou do!t have sufficiet otice% 'ou ca raise a request to ad)our the tri#ual •
02S6.OS-RE Beneral principles4 a party is entitled to now what evidence and representations have • !een given and is entitled to an adeuate opportunity to respond—!e a!le to mae the case against him isclosure is the disclosure to parties of information that the agency has • a!out the decision to !e made7 official notice is the extent and manner in which an agency may$ maing its decisions$ use material that is not introduced in evidence. 7titchcombe2 see te;t for more details: • C!e! re+uirin* fu$$ di!c$o!ure • o Mi!conduct D*ed re#uttion o o Profe!!ion$ de!i*ntion C!e! 'here there i! $o'er $e&e$ of di!c$o!ure • 'hen it i! #o$icy deci!ion o o ?hen it i! !oeone u# t co$$e*e of !ur*eon! o M!ter!" !e0u$ !!u$t =ook at Baker to determine the appropriate level of disclosure •
?ane v. Board of Aovernors of the Eniversity of British Columbia, 2!3":5 ! 7C( !!:> BC%. ,O.02N5 • o :ights were infringed !y having a meeting !ehind closed doors$ not telling him a!out it$ and not allowing him to respond. The >oard was uder a o#ligatio to postpoe util =ae hear the additioal o facts adduced& at the ver' least the >oard should have made 0octor =ae aware of those facts ad afforded him a real ad effective opportuit' to correct or meet a' adverse statemet made*
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6O11ENT %e didnt need to !ho' tht the outcoe 'ou$d h&e certin$y een o different/ he on$y needed to !ho' tht there cou$d h&e een different outcoe to ern the reedy
A66ESS TO 2N/OR1AT2ON STAT-TES @ccess to 6nformation @ct, (7C !3">, c. @-l, s. ;;%% • "$ A66ESS TO A5EN6 2N/OR1AT2ON (e *apoli and WorkersG Compensation Board !3"!%, !;# D=( $d% !43 BC C@% Fctor! #re!!in* for di!c$o!ure • The nature of the conseuences were importat% ad therefore there is a higher o stadard of disclosure redi!ility issue 4 The reports stated that it was a eurotic pro#lem ad that he o was e;aggeratig—which is e;actl' the t'pe of iformatio that should #e cross8 e;amied Cone of these experts is named , o 7ummary is insufficient to determine the case against him A effective o challenge would require productio of the origial reports* The argumet that doctors will #e restraied if the' (ow their otes will #e disclosed • glosses over the valid cotrar' view that the' will prepare them with greater care ad diligece% ad% more importat% that fairess requires that the origial reports #e disclosed i order that the claimat ca effectivel' aswer the case agaist him* 6O11ENT • 0istiguish from 1asters o Nature of the tri#ual4 it was a ad hoc tri#ual for 1asters% more of a ad)udicative #od' here—loo(ig more at the facts 2terests at sta(e8it was a positio at pleasure for 1asters% whereas it was a compesatio claim here The iterests of the victim The summar' i 1asters was more sufficiet "M$ 20ENT2T O/ SO-R6ES O/ 2N/OR1AT2ON The !econd !itution in&o$&e! c$i! to di!c$o!ure of !ource! of infortion/ • nd there i! no *ener$ ru$e eyond @re!on$ene!!.@ Recall% 6hiarrelli • Aallant v. Canada Deputy Commissioner, Correctional 7ervice Canada% !3"3%, $# @dmin. =( ;#! C@% ,O.02N5"ma)orit'$ • The priciples of fudametal )ustice "s*C$ do ot have% therefore% the same o fle;i#ilit' as the rules of atural )ustice ad of fairess* Thu!/ the deci!ion to trn!fer the re!#ondent to S!9tche'n Penitentiry '! not de in ccordnce 'ith the #rinci#$e! of fundent$ 1u!tice !ince the re!#ondent '! not *i&en re$ o##ortunity to n!'er the $$e*tion de *in!t hi. Sectio Aal'sis4 o#vious that i a free ad democratic societ'% it is reasoa#le% o perhaps eve ecessar'% to cofer such a wide discretio o peitetiar' authorities*
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1AR6EA- JA "cocurrig i the result$4 In $i*ht of the i#ortnce of the con!e+uence!/ o &he inmate is not entitled (!y the audi alteram partem principle) to more information !efore asing for his representations Thi! i! due to the nture of the #ro$e nd hi! • re!#on!ii$ity to'rd tho!e entru!ted to hi! cre . 8n the one hand, the information given is definitely more substantial including o the inmateGs )rogress 7ummary (eport in its entirety, the extent of the concern of the Warden, and cogent reasons for non-disclosure of further particulars. 0ESJAR02NS JA "dissetig$4 (eliability may be demonstrated in a number of ways, as for instance, by an o independent investigation or by corroborating information from independent sources —ot doe here
Aough v. Canada *ational )arole Board% !33:%, &> @dmin. =( $:& C /D% REE0 J4 • It i! c$er tht the re+uireent! of fundent$ 1u!tice o#erte on o !#ectru. The content of !uch re+uireent! &ry 'ith the circu!tnce! of the c!e. Sectio C Requiremets i the Parole Peitetiar' 6ote;t o There is o dou#t that the applicat% i the preset case% is etitled to sufficiet detail respectig the allegatios #eig made agaist him to ea#le him to respod itelligetl' thereto uless the respodet ca demostrate otherwise* Sectio o The issue is whether the Natioal Parole >oard is required to either release iformatio to the applicat "whe disclosure will ecessaril' reveal the source of that iformatio$ or forego reliace o that iformatio i ma(ig a decisio o the applicat+s parole* admiistrative coveiece does ot )ustif' a deial of fudametal )ustice—Sigh v* 1iister of Emplo'met 2mmigratio 9K: S6R CC the pael cocluded there is o covicig evidece that disclosure would threate the safet' of the iformats The re!#ondent '! offered n in cer herin* for ore info on the !!ertion!/ nd tht coun!e$ 'ou$d not re&e$ thi! info to hi! c$ient:the Pro$e 7ord re1ected thi! ! it 'ou$d h&e !eriou! nd d&er!e effect on the 'or9in* of the #ro$e !y!te:Court !id thi! i! !i#$y not credi$e. 2 ote% first of all% that Reg* C"$ is too #roadl' framed* • ot saved #' s* aal'sis* 02ST2N5-2S, 5A..ANT AN0 5O-5, • The perso was at large here% was ot i 5allat o 2mpact is differet—oe is the impact to the idividual% here it his li#ert' The Natioal Parole >oard refused to have disclosure i camera o
)ritchard v. 8ntario 1uman (ights Commission 2;::&5 7CC $! 2get from supplement5 0 said that -: advice is solicitor*client privilege—sacrosanct—only • compromised in exceptional cases
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Cot su!ject to disclosure 6O11ENT 2s it a legal questio% or a factual questio o The $'yer! for the coi!!ion re not $i9e tho!e in n d&er!ri$ c!e/ !ince the $'yer! 'ere not nece!!ry co#onent of the deci!ion #roce!! nd !he did not 9no' of their e0i!tence Minor thin9! tht thi! y e the e0ce#tion to !o$icitor2c$ient #ri&i$e*e o
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Sla'to% The Ati80umpig Tri#ual A Stud' Prepared for the .aw Reform 6ommissio of 6aada "KCK$% at LC REE0 J4 • 6ofidetial #riefs% documets ad e;hi#its are made availa#le #' the Tri#ual ol' to • cousel who are appearig for parties represeted at the hearigs% ad those cousel are required to give a uderta(ig ot to reveal cofidetial iformatio to their cliets* /oshiba Corporation v. @nti-Dumping /ribunal !3"&%, " @dn ! =( !4$ C@%, &he analysis and opinion in staff memoranda are irrelevant to the ascertainment of the • /oard8s reasons for decision !ecause they cannot !e assumed to have !een adopted !y it as its reasons. /he BoardGs reasons for decision are those which it chooses to express or which can otherwise be clearly shown from its own words or actions to have been its reasons. >ut a agec' head ma' ofte #e the itellectual iferior of a agec' specialist ad rel' • o the staff memorada of the specialist—so we eed disclosure Speight J cocluded #' drawig a distictio #etwee a 7factual summar'7 ad • 7commet*7 o e was persuaded that any comment on the merits and demerits of particular points of o!jection had to !e disclosed. o >s for purely factual summaries$ he expressed that it might !e !etter that there !e disclosure in the interests of accuracy in a complex area where it is only natural that errors may creep in. Hanisch commentsget from bookcomments allows collaboration • o )roblem is too much collaborationand no strict review by one decision-maker
(f) E&idence nd Cro!!2e0intion A012SS2>2.2T O/ E320EN6E A*encie! (Triun$!) re not *o&erned y the ru$e! of e&idence u!ed y court! un$e!! • !oe !ttutory #ro&i!ion re+uire! the/ nd !uch #ro&i!ion! re rre. SPPA "sectio "$$—disregardig of the ormal rules of evidece is sactioed—this • does ot ecessaril' ma(e the commo law rules of evidece irrelevat or geerall' iapplica#le* rules of evidece are looser i tri#ual tha that of trials uless idicated i the statute • overridig cocer is fairess to idividual ad a#ilit' to support their case • =ha v* 6ollege of Ph'sicias ad Surgeos of Otario "KKM$% KL 0.R "Lth$ K4 "Ot* • 6A$% o the Ontrio Court of A##e$ !u!tined the di!!ion of her!y e&idence
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The her!y e&idence '! not on$y nece!!ry ut there 'ere !ufficient indici of it! re$ii$ity. %o'e&er/ e0c$u!i&e re$ince on her!y nd o#inion e&idence y h&e the con!e+uence of $edin* to deni$ of ntur$ 1u!tice. o >od v* New >ruswic( "1aagemet >oard$ "KKM$% K 0.R "Lth$ C "N> 6A$% the N> 6ourt of Appeal set aside a ar#itrator+s sustaiig of a dismissal for o se;ual assault #ecause it ol' relied o hearsa' ad opiio— The ph'sicia ad the allergist% with their special s(ills ad (owledge% might have added a dimesio of critical importace—>' refusig to hear their evidece the #oard deied the applicat atural )ustice* &he fact that such evidence might not have assisted the applicant was not a valid reason for refusing to hear it. ?offici$ noticeB *ener$ ru$e in court – 1ud*e! re entit$ed to t9e 1udici$ noticeB of fct! o tht re uncontro&erted/ !oci$$y cce#ted fct! 0ispute over what is ?-cotrovertedG6ommo Sese@ o
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6nnisfil /ownship% v. Pespra /ownship% 2!3"!5 ; 7C( !&>8nt.% Ad1udicti&e &. Po$icy 3$e!! cro!!2e0intion due 'hen it i! #o$icy4 • o ?here the 7ord deterine! the ri*ht! of the contendin* #rtie! 'ith the onu! f$$in* u#on the contender to introduce the fct! nd !ui!!ion!/ the 7ord techni+ue 'i$$ t9e on !oethin* of the ##ernce of trdition$ Court. ?here/ on the other hnd i! ore concerned 'ith counity intere!t! t o $r*e/ nd 'ith technic$ #o$icy !#ect! of !#eci$i>ed !u1ect/ one cnnot e0#ect the triun$ to function in the nner of the trdition$ Court. If the appellant has here the right to cross*examine$ it is not for the appellate ourt • to withhold such right !ecause in its judgment it is dou!tful$ or even impossi!le to advance its case !y cross*examination. *eed clear statutory direction along the lines to make a challenge immune from cross• examination
(*) Duty to =i&e Re!on! POST8,EAR2N5 2SS-ES Reasos
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In 79er it!e$f/ it '! o&iou!$y the i#ortnce of the intere!t t !t9e tht tri**ered the o$i*tion. o ot all e;ercises of statutor' or prerogative power ow ivolve the givig of reasos —S66 &he judgment$ echoing earlier authority$ also seems to accept that the existence of a statutory right of appeal from the decision will normally generate an entitlement to reasons
The 6otet of the 0ut' To 5ive Reasos the reasos should show that the it addressed itself to the parties argumets o a' sigificat • questio of law relevat to the case% ad should idicate the #asis o which it resolved the dispute% i order to assure the parties that the hearig has give them a meaigful opportuit' to respod Whe the tri#ual+s applicatio of a statutor' stadard depeds o this e;istece of certai • facts% the reasos should iclude the fidigs of fact made #' the tri#ual ad idicate the evidece o which the tri#ual #ased its fidigs* Ceed to now how the issues were framed and why it chose one view over another. •
P6@ (ail Canada 6nc. v. *ational /ransportation @gency 2;::!5 ; C ;> C@% footnotes omitted% RAT2O • =standard of adeuacy for duty to give reasons must ultimately reflect the purposes o served !y a duty to give reasons.<—loo at overall function of the tri!unal. :easons must contain o the decision*maer must set out its findings of fact and the principal evidence upon which those findings were !ased. &he reasons must address the major points in issue. &he reasoning process followed !y the decision*maer must !e set out and must reflect consideration of the main relevant factors. APP.26AT2ON4 • 6n this case, adeuacy of the @gencyGs reasons measured with reference to the extent o to which they provide P6@ with sufficient guidance to formulate their tariff without running afoul of the @gency and to the extent to which they give effect to P6@Gs right of appeal by providing sufficient insight into the @gencyGs reasoning process and the factors that it considered. 6n summary, the @gency failed to provide sufficient insight into the reasoning o process that it followed or the factors that it considered in determining that any obstacle provided by the tariff was undue. 6n so doing, it erred in law.
Effect of >reach of the 0ut' To 5ive Reasos If it is apparent from the reasons for a decision$ whether given voluntarily or under legal • o!ligation$ that the decision maer misinterpreted the legislation or committed some other error of law$ the decision may !e set aside. 1owever, if the tribunalGs reasons, read in a realistic manner, indicate that it applied its • mind to the most important issues, a court will not necessarily infer from its silence about others that it ignored them altogether ?indler v. @ttorney Aeneral of Canada, 2!3"45 ; C !&> C@%.
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2t is more usual% though% for a court to declie to speculate whether the tri#ual would have decided the dispute i the same wa' if it had realiFed that it could ot i law rel' upo the reasos give
(h) 7i! B6@7 @*D =@C? 8 6*D')'*D'*C' 2NTRO0-6T2ON nemo judex in causa propria sua de!et esse" 8iter$$y trn!$ted/ thi! h! it tht no one • ou*ht to e 1ud*e in hi! or her o'n cu!e The court refuses to ivestigate the decisio ma(er+s actual state of mid • PE6-N2AR AN0 OT,ER 1ATER2A. 2NTERESTS If #er!on h! direct finnci$ intere!t in the triun$% the' are disqualified • The state of mid of the decisio8ma(er is irrelevat • If it i! indirect:then they $oo9 t re!on$e ##rehen!ion of i! —spectrum—>wG • ad)udicative ad polic'—.i#ert' case
'nergy )robe v. Canada @tomic 'nergy Control Board% !3"&%, " D=( &th% 4$> C /D%. affGd. !3"&%, !> D=( &th% &" C@% REE0 J ",eal ad Stoe agreed with this trial level statemet$4 • But, 6 can find no direct pecuniary interest, as that concept has been defined in the o +urisprudence. /here was no contract conditionally in effect pending the outcome of the new licences to 8ntario 1ydro. o &he most that could !e said of r -lsen as of the date of the hearing was that he could entertain a reasona!le expectation of pecuniary gain as a result of approval of the licences—not enough to constitute a reasona!le apprehension of !ias. 1AR6EA- J4 • o :esasona!le >pprehension of /ias &he only rational reuirements are that the !enefit come from the decision itself and that it !e a liely enough effect to =colour= the case in his eyes. &he presence of an immediate possi!ility$ not to say pro!a!ility$ of gain to !e coming to him directly or indirectly as a result of his decision would !e enough to render someone unfit to mae it. The mere possi#ilit' that a profit could #e realiFed i the future out of other o cotracts awarded i the course of costructio of other uits was o dou#t too alie% cotiget ad remote to costitute pecuiar' #ias with respect to the decisio to #e made at that time /he standard of ob+ectivity in a tribunal does not have to be as high as that reuired o of an ad+udicative tribunal and the rules applicable should therefore be less strict the pecuiar' iterest ought to #e more immediate ad certai ad the o8 pecuiar' iterest must give rise to ver' su#statial grouds for apprehedig lac( of o#)ectivit'* NOTES • 7upreme Court of Canada sustained the position that classification of the function as o +udicial or uasi-+udicial was no longer a prereuisite to a challenge on the basis of biasbut the standards of detachment varied according to the nature of the role being performed Canadian )acific =td. v. 9atsui 6ndian Band, 2!33>5 ! 7C( $ Can.%, o
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income raised through the tax assessment scheme does not accrue to any individual, but rather to the community as a whole.
>2AS4 T,E 5ENERA. TEST Reasoa#le Apprehesio of >ias 27CC5 Committee for Hustice and =iberty v. *ational 'nergy Board, 2!34"5 ! 7C( $#3 • Can.%, 5&6he apprehension of !ias must !e a reasona!le one$ held !y reasona!le and o right*minded people$ applying themselves to the uestion and o!taining thereon the reuired information. In the words of the ourt of >ppeal$ that test is =what would an informed person$ viewing the matter realistically and practically—having thought the through—conclude.< The 6aadia courts have ot #ee all that cosistet i the (owledge that is to #e attri#uted • to the reasoa#le #'stader*
Atagoism 0urig the ,earig Where ad)udicator seems to favour oe side • 2ts most commo maifestatios are ureasoa#l' aggressive questioig or commets a#out • testimo' Baker v. Canada 9inister of citiIenship and 6mmigration% % • the court may disualify a decision maker who reveals in the course of a paper o hearing an antagonism toward a party or a lack of sympathy with legislative ob+ectives and the way the legislation is being enforced. Associatio >etwee Part' ad 0ecisio 1a(er Persoal ivolvemet i specialiFed idustries—'ou would e;pect recurrece • #ut differet from #eig a activist i the field who has had strog views towards the o issue at sta(e 2N3O.3E1ENT O/ 0E62S2ON 1A=ER 2N EAR.2ER STA5E O/ PRO6ESS
Committee for Hustice and =iberty v. *ational 'nergy Board 2!34"5 7C( .as(i 6J • The &ice of re!on$e ##rehen!ion of i! $ie! not in findin* o corre!#ondence et'een the deci!ion! in 'hich Mr Cro'e #rtici#ted nd $$ the !ttutory #re!cri#tion! @to t9e into ccount $$ !uch tter! ! to it ##er to e re$e&nt/@ !ut rather in the fact that he participated in woring out at least some of the terms on which the application was later made and supported the decision to mae it. The more usual situatios of prior ivolvemet are oes i which a decisio ma(er has i the • same or aother capacit' alread' heard the matter #efore the tri#ual "rehearig oe has participated$ or #ee ivolved i the ivestigatio ad decisio to proceed with the matter #eig heard* /ownship of Pespra v. 8ntario 9unicipal Board% !3"$%, ; D=( &th% $:$ 8nt. Div. Ct.%,
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But, when there is added to those strong statements the actual decision of !3"$, ... made without +urisdiction and contrary to natural +ustice, based upon the evidence of !34# without regard for any change in circumstances in the intervening seven-year period and, in particular, without evidence of population pro+ections, the government policy having lost its relevancy, the reasonable apprehension of bias by Pespra is inevitable in our view. 2 the realm of appeals% the most o#vious possi#ilit' is that perso ma(es the iitial decisio ad the hears the appeal% either aloe or as part of the appeal tri#ual* o
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=aw 7ociety of Epper Canada v. rench 2!34>5 7C( ,O.02N5 "Spece for ma)orit'$ • -ne argument for the 0ociety was even if the proceedings were an appeal$ o the maxim expressio unius est exclusio alterius permitted the mem!ers to participate. 0ection "D prohi!ited committee mem!ers from participating in one ind of appeal$ therefore implicitly permitting them to participate in others. 0pence E$ writing for the majority of the court$ accepted this argument7 Spece J cocluded that 6ovocatio was ot cosiderig a appeal* ,e said that the o disciplie process was 7a sigle proceedig i which there are two stages4 /irst% the iquir' ad ivestigatio ito the complait #' the disciplie committee% the results of which are em#odied i a report to the >echers& ad secodl'% the cosideratio ad dispositio of the report #' the >echers i 6ovocatio*@ .as(i "disset$4 Whe there was a serious offese% the there was #ias •
STAT-TOR A-T,OR2QAT2ON Brosseau v. @6berta 7ecurities Commission% 2!3"35 ! 7C( $:! @lta.% .+,E-RE-<80->E% • Reasoa#le Apprehesio of >ias o In assessing !ias of administrative tri!unals$ the courts must !e sensitive to the o nature of the !ody created !y the legislator. 5eeral Rule4 someoe should ot sit as a ivestigator ad decider o ;Cemo Eudex< 3xception4 If a certain degree of overlapping of functions is o authoriFed !y statute$ then$ to thee extent that it is authoriFed$ it will not generally !e su!ject to the doctrine of =reasona!le apprehension of !ias= per se. assuming the constitutionality of the statute is not in issue 0u#i JA foud that the structure of the Act where#' commissioers could o #e ivolved i #oth the ivestigator' ad ad)udicator' fuctios did ot% #' itself% give rise to a reasoa#le apprehesio of #ias*
'.@. 9anning =td. v. 8ntario 7ecurities Commission iy3&%, !" 8( $d% 34 Div. Ct.%, affGd. !33>%, !;> D=( &th% $:> 8nt. C@% 1ONT5O1ER J "0uet ad ,owde JJ cocurrig$—trial* • 'ven if 87C staff tried to separate their investigative role from the CommissionersG o role as ad+udicators, the roles have become so interwoven that there is a reasonable apprehension of bias against all Commissioners because the creation and adoption of )olicy !.!: mass of complaints specifically regarding 9anning =imited and others in the staff report
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the material led by the 87C in @insley 6n a press interview, the Chair of the 87C, 9r. WaitIer, stated that their +ob is to get o rid or regulate penny stock dealers O9r. WaitIer cannot sit on either hearing because of a reasonable apprehension of bias. /he 87C both staff and Commissioners% were acting within the ambit of o their statutory duties in assembling and considering information in respect of a certain segment of the securities market. But in using that information to conclude that the securities dealers including 9anning =imited% were in fact engaging in the practices alleged in )olicy !.!:, and now in the notices of hearing, the Commissioners pre+udged the case. 0->2N 6JO ".a#rosse ad 0ohert' JJA cocurrig$4 0isqualificatio #' Reaso of 6orporate Tait o &here was no evidence of prejudgment on the part of the new ommissioners since o they were not involved in the consideration and adoption of the 'olicy 0tatement r. +aitFer8s comment a!out getting the penny stoc dealers into the self* o regulating system is clearly a reflection of his ideal solution$ which is a solution he advocates for all players in the maret. In maing the comments complained of here$ r. +aitFer was fulfilling his mandate as hair of the ommission /herefore, no biasWaitIer and other commissioners can sit on the hearing >ias Resultig from 6ommissio+s 0efece i the Aisle' Actio o o It '! the Coi!!ion !tff/ $on* 'ith coun!e$/ 'ho 'ere re!#on!i$e for !!e$in* the teri$! tht fored the !i! of the Coi!!ionJ! re!#on!e to the #$intiff!J $$e*tion! in the Ain!$ey ction !o no i! for coi!!ioner! Eve though the tribunal believed that the assertions in the defences were true, it is o not reasonable to fear that the members of the tribunal will not decide the case impartially when they hear the evidence and arguments for the appellant at the s. !4c inuiry. NOTES Caccamo v. Canada 9inister of 9anpower < 6mmigration% 2!34"5 ! C $## C@% o at $4$ if all eligi!le adjudicating officers are su!ject to the same potential disualification !ased on financial !ias$ the law must !e carried out notwithstanding that potential disualification
;4&4-$!4& Fuebec 6nc. v. Fuebec (egie des permis dGalcool% 2!33#5 $7C(3!3 RAT2O • Duasi86ostitutioalism ad Statute o 2f there is a legislative provisio% the we must loo( to see whether there are a' costitutioal or quasi8costitutioal protectios that eed to #e made So eve if there is e;press legislative authorit' "Regie$% it must still • ot violate the rights edowed i costitutioal or quasi8 costitutioal documets "Due#ec 6harter$ 2stitutioal >ias o etermination of institutional !ias4 a well*informed person$ viewing the matter realistically and practically and having thought the matter through would have a reasona!le apprehension of !ias in a su!stantial num!er of cases. >lways$ the informed person8s assessment will always depend the circumstances. •
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the nature of the dispute to !e decided$ the other duties of the administrative agency and • how the operational context as a whole will of course affect the • assessment. Stricter ##$iction in criin$ tri$/ 'here! *reter f$e0ii$ity u!t e !ho'n to'rd dini!trti&e triun$!. •
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APP.26AT2ON "iii$ Role of the 0irectors o O(a' for Regie to participates i the process of ivestigatio% summoig ad ad)udicatio But the possibility that a particular director could, following the • investigation, decide to hold a hearing and could then participate in the decision-making process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases.
2N0EPEN0EN6E !#ectru" the ore d1udicti&e the ore inde#endence tht i! 'rrnted/ the ore • #o$icy dri&en/ the $e!! inde#endence in&o$&ed If the !tte i! c$er out the #o'er!/ then it o&erru$e! the coon $'/ of cour!e/ • !u1ect to con!titution$ #ro&i!ion!
Palente Decision Three criteri of 1udici$ inde#endence • (1) 0ecurity of &enure o lifetime appoitee—)udges ca ol' #e dismissed #' legislature • (2) 9inancial 0ecurity o PE2 Referece4 eed a idepedet committee to settle )udges salar' • to esure that )udges dG rule i favour of gov!ts • also to esure that )udges are ot #ri#ed • (")Institutional Independence o Assigmet of )udges to cases is doe idepedetl' • ,ee# in ind tht thi! 'ht 'e ##$y for 1ud*e!/ 'e need to ##$y to triun$! • ccordin* to e0tent re+uired •
/rom Regie—if chair appoited% there ma' #e lac( of idepedece
Canadian )acific =td. v. 9atsui 6ndian Band 2!33>5 ! 7C($Can.% .A1ER 6J6 "6or' J cocurrig$"0isset o This issue$4 • RAT2O o To determie whether a reasoa#le ad right8mided perso% viewig the whole o procedure as set out i the assessmet #'8laws% would have a reasoa#le apprehesio of #ias o the #asis that the mem#ers or me appeal tri#uals are ot idepedet/ the V$ente #rinci#$e! u!t e con!idered in $i*ht of the nture of the ##e$ triun$! the!e$&e!/ the intere!t! t !t9e/ nd other indice! of inde#endence (!uch ! oth!) o strict applicatio of the 3alete priciples ma' #e warrated where
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Tri#ual 0ecisios affect the securit' of the perso of a part' "such as 2mmigratio$ In thi! c!e/ 'e re de$in* 'ith n dini!trti&e triun$ d1udictin* o di!#ute! re$tin* to the !!e!!ent of #ro#erty t0e! ore f$e0i$e ##roch i! c$er$y 'rrnted. SOP2N=A J ".+,eureu;80u#e% 5othier ad laco#ucci JJ cocurrig$"ma)orit' o this issue$4 2 do ot disagree with the 6hief Justice that the #ad ta;atio tri#uals o must compl' with the priciples of atural )ustice "procedural fairess$% #ut without a clear uderstadig of the relevat% operatioal cote;t% these priciples caot #e applied* o Criteri of 'ht $e&e$ 'i$$ ##$y 8oo9 t nture of triun$ Nture of i!!ue t !t9e ?ht re the other indici of inde#endent thin9in* o Mu!t inter#ret !ttute! in rod nner #ro&i!ion! tht re ied t intinin* Indin ri*ht!/ nd to inter#ret nrro'$y #ro&i!ion! ied t $iitin* or ro*tin* the. 6 conclude that effectively, the provincial authorities, as a policy matter, have o relinuished their historical field of taxation over reserve lands, have given the force of law to the by-laws, have clothed the respective 6ndian band councils with the mantle of legitimacy in running their own system of taxation. Although i this appeal% teure ad remueratio ma' #e esta#lished #' the #ads o o appoitmet of the ta;atio tri#uals*
;4&4-$!4& Fuebec 6nc. v. Fuebec (egie des permis dGalcool% 2!33# 5$ 7C( 3f3 5ONT,2ER J4 • Judicial 2depedece—Securit' of Teure • In my view$ the directors8 conditions of employment meet the minimum o reuirements of independence. &hese do not reuire that all administrative adjudicators$ lie judges of courts of law$ hold office for life. 9ixed* term appointments$ which are common$ are accepta!le. owever$ the removal of adjudicators must not simply !e at the pleasure of the executive. o .e 0ai J i 3alete4 &he judge can !e remova!le only for cause$ and that cause !e su!ject to independent review and determination !y a process at which the judge affected is afforded a full opportunity to !e heard—cannot remove judge in an ar!itrary manner. 2stitutioal 2depedece • e ain E in Galente4 &he essential elements of institutional independence may !e o summed up as judicial control over the administrative decisions that !ear directly and immediately on the exercise of the judicial function. 6t has not been shown how the 9inister might influence the decision-making process. o The fact that the 1iister of Pu#lic Securit' is ultimatel' resposi#le for #oth the Regie ad the various police forces coductig ivestigators would ot i m' view cause a iformed perso to have a reasoa#le apprehesio with respect to the idepedece of the directors* Appeal allowed* •
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Bell Canada Case---7/6== *''D /8 ('@D Hpheld the chair%s power to extend$ or refuse to extend$ the term of tri!unal mem!er • since the chair is only remova!le for cause—so he cannot !e influenced in such a manner S-PRE1E 6O-RT • The #o$icy i! #eri!!i$e o -)C$er$y e!t$i!hed y rod #ur#o!e! of $e*i!$ture • Re!on! re!t not on inde#endence/ ut on !co#e #eritted to ini!ter in $e*i!$ture in choice of ritrtor! 5)not u!ed #rctic$$y in ny 'y tht i! i#ro#er reasonable and practical to allow tribunal chair to renew • uestioning during course of hearing
8cean Court Case at least get proper case not read scannedperhaps in textbook% S66 reversed the >66A • /ribunals are created for implementing governmental policy —the' ma(e quasi8 o )udicial decisios -ltimatel'% it is govermets that set the rules ad appoitmets o >oard is ot a court% it is a licesig #od'—withi prov* gov!t authorit' o 6ommo law ol' applies where the statute is silet or am#iguous o 6n this particular case, there was no doubt in the statute that the board members were to serve at pleasurenot ambiguous 6ostitutioal requiremets did ot appl'—ecoomic right—o sectio C% o issues 5overmets ca appoit who the' wat% as log as the' have a ope mid* o
(&i) In!titution$ Deci!ion!" C!e Studie! in Procedur$ Choice 2stitutioal 0ecisios
() De$e*tion" The 8e*$ Doctrine • •
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7!ic Ru$e" annot delegate authority unless the statute provides for it %&e $!o con!tructed the need to h&e dini!trti&e efficiency/ con!iderin* the &o$ue of 'or9/ nd rn*e nd co#$e0ity of i!!ue! Need to $oo9 t con!i!tency of deci!ion! nd the #o'er of the chirn to ffect the outcoe /or ad)udicative decisios% less li(el' to accept delegatio tha for polic' decisios*
Willis, JDelegatus *on )otest DelegareJ !3&$%, ;! Can. Bar (ev. ;>4-#! delegatus non potest delegare % a delegate ma' ot re8delegate • 2f the authorit' amed i the statute has ad retais a geera l cotrol over the activities of • the perso to whom it has etrusted% it is still delegatio If/ ho'e&er/ the uthority e0erci!e! !uch !u!tnti$ de*ree of contro$ o&er • the ctu$ e0erci!e! of the di!cretion !o entru!ted nd it cn e !id to direct it! o'n ind to it/ there i! in $' no @de$e*tion@ nd the 0i doe! not ##$y. The word 7persoall'7 is to #e read ito the statute o
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Pine v. *ational Dock =abour Board 2!3>45 @C&""'ng.1=% .OR0 SO1ER3E.. • o 0iscipliar' powers% whether 7)udicial7 or ot% caot #e delegated 32S6O-NT =2.1-2R .64 2 • o It i! nece!!ry to con!ider the i#ortnce of the duty 'hich i! de$e*ted nd the #eo#$e 'ho de$e*te. thi! duty in thi! !chee i! too i#ortnt 3out$'ed fro #rofe!!ion • for $ife4 to de$e*te un$e!! there i! n e0#re!! #o'er. it '! #eri!!i$e if it hd !tted !o in the !ttute/ ut tht i! !ent • here. to have authorit' to appoit someoe% it eeds to #e e;plicitl' provided • NOTES • The #rinci#$e of non2de$e*tion $!o re+uire! tht $$ eer! of the • triun$ herin* di!#ute #rtici#te in !u!tnti&e !en!e in the 9in* of the deci!ion. 6B9 Canada v. Deputy 9inister of *ational (evenue, Customs and 'xcise, o 2!33;5 ! C ##$ C@%, ?ht u!t e done/ ho'e&er/ i! tht t !oe #oint in tie/ the #ne$ • u!t rech deci!ion co$$ecti&e$y nd ech eer u!t @#rtici#te@ indi&idu$$y in tht co$$ecti&e deci!ion in *reein* 'ith it or di!!entin* fro it. There h! to e eetin* of the ind! / ech eer ein* infored t $e!t in *ener$ 'y of the #oint of &ie' of ech of hi! co$$e*ue!.
9organ v. @cadia Eniversity !3">% *7 7C% p.&3!% see text for details% 2t would #e too much to e;pect the dea to determie these himself • The' costructed power to delegate the decisio •
0E6202N5 W2T,O-T ,EAR2N5 only those mem!ers of an agency who hear a particular case may decide it • 0elegatig the 0ut' To ,ear =ocal Aovernment Board v. @rlidge 2!3!>5@C!;: 'ng.1=% 32S6O-NT ,A.0ANE4 • inister at the head of the !oard is expected to o!tain his materials vicariously o through his officials$ and he has discharged his duty if he sees that they o!tain these materials for him properly. &o do everything personally would !e to impair his efficiency. .OR0 S,AW4 • 9inisterial is responsible to parliament, but the minister must be able to o delegate NOTE • 2 6aada% some decisios e;ceptioall' require the miister+s persoal decisio o
(amm !3>4% 8nt C@% details missing% RAT2O • o elegation doctrine and the rule that only those who hear may decide lead to4
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the people that hear the evidence are the people are the ones who are entitled to decide—can%t have new mem!ers in the course of the trial need uorum—can%t lose mem!ers either
,O.02N5 court uashed the decision and said it was o!jectiona!le for persons who were o not part of the initial hearing to comment at a later time when the decision was made to revoe
Heffs v. *ew Qealand Dairy )roduction and 9arketing Board 2!3#45 lG@C>>!*Q)C% 32S6O-NT 02.,ORNE4 • Mere$y Mtter of Procedure/ 'hich doe! not &io$te ntur$ 1u!tice" o Whether the #oard heard the iterested parties orall' or #' receivig writte statemets from them is a matter of procedure* ?hether the ord ##ointed #er!on or #er!on! to her nd recei&e e&idence nd !ui!!ion! fro intere!ted #rtie! for the #ur#o!e inforin* the ord of the e&idence nd !ui!!ion! Cot permissi!le if it involved credi!ility of witnesses • But Board must still be fully informed of the evidence given and the submissions o made and had considered this Implied that it is permissi!le to delegate the evidence*acuiring process if o credi!ility is not an issue o 0ummary is of the relevant evidence and su!missions is accepta!le if it adeuately discloses the evidence and su!missions to the !oard. 6O11ENT • o 6f there had been a clear delegation of authority and appropriate directions to the committee, it would have been more likely that the process would have been upheld
() Con!u$tin* 'ith Other A*ency Meer!K Decidin* 'ithout %erin* nd 7i! 6nternational Woodworkers of @merica, =ocal ;-#3 v. Consolidated-Bathurst )ackaging =td. !3"$%, > C=(B( *7% 43 8=(B%, 2!33:5 ! 7C( ;"; 8nt.% 0E62S2ON O/ T,E >OAR04 • (ationale for having board meetings o Broader ramifications Aet perspective from other chairs experts% Consistency SOP2N=A J "dissetig$ ".amer 6J6 cocurrig$4 • o The fu$$ ord herin* &io$te! the #rinci#$e! of ntur$ 1u!tice in t'o re!#ect!" fir!t/ tht eer! of the 7ord 'ho did not #re!ide t the herin* #rtici#ted in the deci!ion:no o##ortunity for #rty to #er!ude the
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Second/ tht the c!e i! decided t $e!t in #rt on the !i! of teri$! 'hich 'ere not di!c$o!ed t the herin* nd in re!#ect of 'hich there '! no o##ortunity to 9e !ui!!ion! /he second deprived the appellant of a full opportunity to present evidence and o submissions and constituted a denial of natural +ustice. Not certai that the full >oard iflueced the pael% #ut it is fatal to the decisio o of the >oard that this is what might ver' well have happeed* /urthermore% whe the rules of atural )ustice collide with a practice of the o >oard% the latter must give wa'* 5ONT,2ER J "Wilso% .a /orest% .+,eureu;80u#e% ad 1c.achli JJ cocurrig$4 &o determine permissi!ility of full !oard meeting o Importance of pu!lic issue +hether there was concern for having consistent decisions 'ros and cons of having these discussions in the a!sence of the parties the dager that full #oard meetigs ma' fetter the )udicial idepedece of pael o mem#ers does ot create a reasoa#le apprehesio of #ias or lac( of idepedece ".i#ert' test$ &he criteria for independence is not a!sence of influence !ut rather the o freedom to decide according to one8s own conscience and opinions. /ull >oard 1eetigs ad the Audi Alteram Partem Rule o I therefore conclude that full !oard meeting consultation process does not o violate the audi alleram partem rule provided that factual issues are not discussed and that the parties are given a reasona!le opportunity to respond to any new ground arising from such a meeting
/remblay v. Fuebec Commission des affaires sociales% 2!33;5 ! 7C(3>;Fue.% 5ONT,2ER J4 • ,O.02N5 • Of course% secrec' remais the rule% #ut it ma' oetheless to #e lifted whe the litigat • ca preset valid reasos for #elievig that the process followed did ot compl' with the rules of atural )ustice* The te!tiony of the eer C$ude Pothier de#ict! !y!te in 'hich in ctu$ • fct con!trintB !ee! to h&e out'ei*hed inf$uenceB/ re*rd$e!! of ny intern$ directi&e to the contrry. E0ertion of !y!teic #re!!ure tht reche! $iti*nt! ri*ht to inde#endent triun$ • o Coi!!ion of ho$din* #$enry eetin*! 'ithout eer! of +uoru h&in* re+ue!ted the o the &otin* #rocedure 3!ho' of hnd!4 o t9in* inute! The istitutioaliFed cosultatio process curretl' #eig used #' the 6ommissio ma' • also give rise to a reasoa#le apprehesio of #ias i a iformed litigat* P$enry eetin*! y e con!u$ttion too$ ut they !hou$d not e i#o!ed on • deci!ion29er! nd !hou$d e he$d in !uch 'y ! to $e&e deci!ion 9er! free to decide ccordin* to their o'n con!cience! nd o#inion!. "O>2TER$ Part Pla'ed #' the Presidet i the 6ase at >ar ad Appearace of >ias • "strictl' spea(ig% o#iter$2 the case at #ar% there is o evidece that ew o argumets of law were raised at the 7cosesus ta#le*7 or #' the presidet!s decisio* The cosultatio process therefore did ot ifrige the audi alteram partem rule*
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'llis-Don =td. v. 8ntario =abour (elations Board% 2;::!5 l7C(;;!8nt. % 1AJOR2T • o Not allowed to e;amie tri#ual mem#ers—too #urdesome In the a!sence of any further evidence$ this ourt cannot reverse the o presumption of regularity of the administrative process simply !ecause of a change in the reasons for the decision$ especially when the change is limited on its face to uestions of law and policy$ as discussed a!ove—need some deli!erative secrecy Ceed to have institutionaliFed consultation proceedings to ensure consistency$ o predicta!ility$ and finality >2NN2E J "dissetig$ "1a)or J cocurrig$4 • o 6otrar' to .e>el J% after review of draft ad fial decisio% what had happeed #efore the #oard idicated that 7the evidece was reweighed or reassessed% apparetl' as a result of the full8#oard meetig—differet costructio of facts* -nce it was determined here that the change !etween the initial decision and o the final decision related to an issue that was almost entirely factual$ and was nevertheless put up for discussion at a full /oard meeting$ I thin the appellant has made out a prima facie !asis for judicial review which in this case the /oard chose not to re!ut.
)ayne v. 8ntario 1uman (ights Commission% ;:::%, !3; D=( &th% $!> 8nt. C@% S,ARPE JA "O+6oor JA cocurrig$4 • &he appellant was not entitled to any right of discovery to rummage through o the commission8s files in hope of uncovering something helpful to her case$ !ut this did not mean that she was not entitled to a =more focused examination.< o &he examination will not !e permitted unless the party proposing it can present some !asis for a clearly articulated and o!jectively reasona!le concern that a relevant legal right may have !een infringed. 3xaminations !ased on conjecture or mere speculation will not !e allowed. A>E..A JA "dissetig$4 • o She certin$y '! not #re#red to !$&*e the ##$iction y identifyin* !oe ore focu!ed e0intion /here is no evidence that any member of the staff made inappropriate comments o at the relevant meetings, made comments that were not based on information contained in the (eports, or made any comments that unduly influenced or interfered with the CommissionGs ability to make up its own mind based on relevant and appropriate factors* S-11AR Di!cu!!ion $$o'ed 'hen on$y #o$icy di!cu!!ion i! t i!!ue • Any con!u$ttion u!t de$ 'ith 'ht '! de$t 'ith in the #ne$ • If there i! ne' i!!ue! di!cu!!ed/ you u!t #ut it to the #rtie! fir!t •
(c) ?ritin* nd Re&ie'in* Re!on! for Deci!ion )$
At the ,earig i a adversarial proceedig% less active itervetio o the part of tri#ual cousel is li(el' • to #e allowed #' the dut' of fairess tha i a proceedig that is more iquisitorial
The Preparatio of Reasos /he relevant black-letter law can be stated simply. • o 9irst$ the decision made must !e that of the tri!unal mem!ers themselves 5and not the lawyers woring on staff6 . or this reason, counsel who, without the consent of the parties, retire with the tribunal while it deliberates may thereby create a reasonable apprehension of bias the participation of a non-member in making the tribunals decision. second$ the reasons for decision must !e in su!stance those of the tri!unal o mem!ers$ not their cler8s or their counsel8s. 7pring v. =aw 7ociety of Epper Canada !3""%, >: D=( &th% >;$ 8nt. Div. Ct.% .A>ROSSE • o 2 the preset case% the cler( was ot part of the prosecutio* &he deli!erations$ the findings and the decision$ were all made without input o from any third party. &he cler did not participate in or influence the findings or the decision. Co part of the decisional process was delegated. /herefore, the reasons were the reasons of the Discipline Committee and there can o be no reasonable apprehension of bias. ?ere it not for the ffid&it of Mr. chetti 3'ho re#eted$y re&ie'ed the o docuent 'ith the c$er94 I 'ou$d h&e hd no he!ittion in orderin* ne' herin*. TRA2NOR J "dissetig$4 • Equall'% the fact of readig ad adoptig draft reasos prepared #' a third part' is o isufficiet** 2t is a situatio% as 2 view it% where the evidece was orgaiFed #' him to logicall' o reach essetial fidigs of fact ad support coclusios with respect to credi#ilit'* &hat process$ in my view$ must !e undertaen !y the omm ittee$ at least in draft form $ in order that comparison is easily made to ascertain that the reasons in essence are the reasons that appear a!ove the signature of the ommittee chairman.
?han v. College of )hysicians and 7urgeons of 8ntario !33;%, 3& D=( &th% !3$ 8nt. C@% 0O,ERT4 The propriet' of cousel!s ivolvemet i the draftig process apart from s* • M"$ of the ,ealth 0isciplies Act 9actors etermining the 'ropriety of 'rocedures used in the preparation of o reasons—loo at its effect on overall integrity of process4 &he nature of the proceedings$ the issues raised in those proceedings$ the composition of the tri!unal$ the terms of the ena!ling legislation$ the support structure availa!le to the tri!unal$ the tri!unal8s worload$ and other factors ?here coun!e$ i! connected 'ith one of the #rtie! to the herin* n ##ernce o of i! 'i$$ re!u$t if tht coun!e$ #rtici#te! in the drftin* #roce!!
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91a(e most of what is #elow u#olde i the cocise summar': Coun!e$J! in&o$&eent in the drftin* #roce!! did not underine Dr. ,hnJ! i$ity to 9no' the c!e de *in!t hi or to #re!ent hi! o'n c!e There is o evidece that cousel assumed the role of a advocate% advacig oe positio No ne' e&idence or r*uent! or $e*$ i!!ue! for the CoitteeJ! con!idertion durin* the drftin* #roce!!. Coun!e$! in&o$&eent in the 'ritin* of the re!on! did not co#roi!e inde#endence or i#rti$ity. It '! not ndtory/ nd '! entire$y under the contro$ of the Coittee* 6ousel+s assistace could ot have had a' coercive effect o the 6ommittee* In tht re*rd/ the fo$$o'in* feture! of the #roce!! re !i*nificnt/ $thou*h none re deterinti&e" (i)A Coittee eer #re#red the fir!t drft of the re!on!. (ii) Coun!e$/ 'ith the chirn of the Coittee/ re&i!ed nd c$rified the fir!t drft ut did not 'rite inde#endent$y of tht drft. (iii) The Coittee et to con!ider nd re&i!e the drft ! ended y coun!e$ nd the chirnK coun!e$ #$yed no ro$e in thi! re&ie' nd re&i!ion. (i&) The fin$ #roduct 'hich eer*ed fro the drftin* #roce!! '! !i*ned y ech eer of the Coittee A' oe of these factors is ot determiative—The etire process must #e cosidered*
Reasos Review
Bovbel v. Canada 9inister of 'mployment and 6mmigration% 2!33&5 ; C >#$C@% ,O.02N5 • > fair reading of the documents on the record shows$ in our view that the legal advisors • were not to discuss the findings of facts made !y the mem!ers !ut merely$ if there was a factual inconsistency in the reasons$ to loo at the file in order to determine$ if possi!le$ how the inconsistency could !e resolved. True% there was alwa's the possi#ilit' that the legal advisors might% sice the' were i • possessio of the file% e;ceed their madate ad tr' to ifluece the factual fidigs of the #oard* ,owever% as metioed #' 1aoe' JA i Weerasige% a' polic' is suscepti#le to a#use* Fct tht there '! hi*h &o$ue of c$i nd c$er #rotoco$ for re!on! '! • !ufficient for court to e !ti!fied tht re!on! fter 'ritten y triun$ cou$d e re&ie'ed
(d) A*ency =uide$ine! •
if there i! *uide$ine/ there u!t e e0#re!! uthority y the !ttute:oreo&er/ it i! not indin*
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PART III – SU7STANTIVE REVIE? (i) Introduction Crevier v. @ttorney Aeneral ofFuebec 2!3"!5 ; 7C( ;;: H Fro con!titution$ $'/ the $e*i!$ture y not $iit the i$ity of the court to h&e • 1uri!diction o&er dini!trti&e triun$!
(ii) Stndrd of Re&ie' () De&e$o#ent of the 8' of Deference Privative or Preclusive 6lauses #ri&ti&e c$u!e (#rec$u!i&e c$u!e)" a provision that limits the jurisdiction of the court to • examine the su!stance of the decision
6-PE% .ocal KB v* New >ruswic( .iquor "KCK$4 A New Start *ational =abor (elations Board v. 1earst )ublications 6nc. $;; E7 !!!!3&& 6ourts are allowed to review the statutor' authorit' of #oard% #ut where the questio is oe of • specific applicatio of a #road statutor' term i a proceedig i which the agec' admiisterig the statute must determie it iitiall'% the reviewig court+s fuctio is limited* Suggests that there must #e deferece whe there is statutor' idicatios of o legislative itet to grat the #oard #road powers* (e Cormier and @lberta 1uman (ights Commission !3"&%, !& D=( &th% >> @lta. FB% % The words 7emplo'er%7 7emplo'7 ad 7emplo'met%7 as used i the preset statute% must #e • regarded as am#iguous* There #eig am#iguit'% the meaig to #e attri#uted to them should #e li#eral% so far as that is • cosistet with the purpose of the Act ad ot icosistet with some other provisio of the Act which must #e read as a whole* Whe iterpretig the purpose of a statutor' power uder oe specific provisio% loo( o at the purpose of the Act as a whole*
ESTA>.2S,2N5 T,E 1O0ERN STAN0AR0 Canadian Enion of )ublic 'mployees 2CE)'5, =ocal 3#$ v. *ew Brunswick =iuor Corporation 2!3435 ; 7C( ;;4 *B% 3sta!lished that if there is a strong intent of legislature for deference$ then apply the • standard of patent unreasona!leness Stadard of Review • Re1ection of @#re$iinry or co$$ter$ tter@ te!t o o The !tndrd to ##$y i! #tent unre!on$ene!! ?ht con!titute! #tent$y unre!on$e" ctin* in d fith/ !in* the deci!ion on e0trneou! tter!/ fi$in* to t9e re$e&nt fctor! into ccount/ rechin* the #ro&i!ion! of ntur$ 1u!tice or i!inter#retin* the #ro&i!ion! of the Act !o ! to er9 on n in+uiry or n!'er +ue!tion not reitted to it
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Put nother 'y/ '! the 7ordJ! inter#rettion !o #tent$y unre!on$e tht it! con!truction cnnot e rtion$$y !u##orted y the re$e&nt $e*i!$tion nd dend! inter&ention y the court u#on re&ie' 2 do ot see how oe ca properl' so characteriFe the iterpretatio of the >oard* The am#iguit' of s* M"$"a$ is ac(owledged ad udou#ted* There is o oe iterpretatio which ca #e said to #e 7right@ the 7ordJ! inter#rettion 'ou$d !ee t $e!t ! re!on$e ! the $ternti&e inter#rettion! !u**e!ted in the Court of A##e$. Certin$y the 7ord cnnot e !id to h&e !o i!inter#reted the #ro&i!ion in +ue!tion ! to @er9 on n in+uiry or n!'er +ue!tion not reitted to it.@
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A commo feature of the )udgmets i these three cases is% of course% their emphasis o statutor' cote;t ad legislative purpose% rather tha o commo law cocepts or presumptios% as the (e' to iterpretig the admiistrative statutes i questio 0ic(so J i 6-PE said the statutor' laguage i dispute 7#ristles with o am#iguities%7 #ut also that 7there is o oe iterpretatio which ca #e said to #e right*7 0ic(so J i 6-PE did ot thi( that it was the resposi#ilit' of the court to o resolve the am#iguit' i issue i that case* This% he said% was a matter for the #oard
.2/E A/TER 6-PE4 TWO STEPS >A6= AN0 ONE /ORWAR0 /irst% despite the presece of a strog privative clause "such as that i the Otario .a#our • Relatios Act% for e;ample$% a agec'+s decisio ma' #e set aside as i e;cess of its )urisdictio if it is #ased o a icorrect iterpretatio of the geeral law OR of a provisio of its ea#lig statute% which% o a pragmatic ad fuctioal aal'sis% the legislature should #e held ot to have left to the coclusive determiatio of the agec' Secod% a agec' e;ceeds its )urisdictio #' placig a patetl' ureasoa#le • iterpretatio o those provisios of its ea#lig statute% which% o a pragmatic ad fuctioal approach to the statutor' scheme% the legislature should #e regarded as havig etrusted coclusivel' to the agec' to iterpret* Third% privative clauses that fall short of outright prohi#itios of )udicial review "such as • those statig that the agec'+s decisios are 7fial ad #idig7$ do ot provide as much protectio from )udicial review* The' are% however% to #e ta(e ito accout as part of the overall statutor' cote;t whe a reviewig court is determiig whether% ad to what e;tet% it should defer to the agec'+s iterpretatio of its legislatio*
Jurisdictioal Provisios4 The 6orrectess Stadard 7yndicat des 'mployes de production du Fuebec et de l@cadie v. Canada =abour (elations Board 2!3"&5 ;7C( referred to hereafter as the CBC case% If there is a statute that left the jurisdiction open—especially when there%s no privative • clause—then the standard of correctness applies
Enion des enployes de service, =ocal ;3" v. Bibeault 2!3""5 ; 7C( !:&" Fue.% Case initiated the pragmatic and functional test to be used to determine the standard of • review >EETQ J4 •
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A mere error of law is a error committed #' a admiistrative tri#ual i good faith i iterpretig or appl'ig a provisio of its ea#lig Act o 6otrast ?mere error of law@ to4 patetl' ureasoa#le iterpretatio4 a fraud o the law or a deli#erate refusal to compl' with it )urisdictioal error4 misappl'ig a provisio which cofers )urisdictio tribunal will exceed its +urisdiction because of error o !. if the uestion of law at issue is within the tribunalGs +urisdiction, it will only exceed its +urisdiction if it errs in a patently unreasonable manner o ;. if however the uestion at issue concerns a legislative provision limiting the tribunalGs powers, a mere error will cause it to lose +urisdiction and sub+ect the tribunal to +udicial review. 2correctness standard5 Pr*tic or function$ te!t to deterine the 1uri!diction of the dini!trti&e triun$ :Court u!t e0ine the intention of the $e*i!$tor y $oo9in* t o (1)the wording of the enactment conferring jurisdiction on the administrative tri!unal$ 5privative clause$ whether it is an entitlement,privilege6 o (2)the purpose of the statute creating he tri!unal$ the reason for the tri!unal%s existence$ o (")the area of expertise of its mem!ers and (#)the nature of the pro!lem !efore the tri!unal. o 7efore decidin* 'hether to ##$y the correctne!! !tndrd or the !tndrd of #tent unre!on$ene!!/ it i! nece!!ry to deterine the triun$J! 1uri!diction u!in* the #r*tic or function$ te!t. Pr*tic OR Function$ Te!t 3re!tted4 o Prec$u!i&e<#ri&ti&e c$u!e o Re!on for triun$
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0E32AT2ONS /RO1 T,E STAN0AR0 Canada @ttorney Aeneral% v. 9ossop ! 7C(>>&Can.% ase where there was no privative clause$ yet the court accorded deference !ased on • expertise .A1ER 6J64 • In !#ite of the i$ity to o&erturn deci!ion! of the 7ord on findin*! of fct/ o thi! Court h! indicted tht !oe curi$ deference 'i$$ ##$y e&en to c!e! 'ithout #ri&ti&e c$u!e! to the #rinci#$e of the !#eci$i>tion of dutie! (!ee /ell anada v. anada) o +hile curial deference will apply to findings of fact$ which the /oard of Inuiry may have !een in a !etter position to determine$ such deference will not apply to findings of law in which the /oard has no particular expertise. .A/ORESTJ4 • 7ut hun ri*ht! triun$ doe! not ##er to e to c$$ for the !e $e&e$ of o deference ! $our ritrtor. These questios of law are the provice of the )udiciar'% ad ivolve cocepts of o statutor' iterpretatio ad geeral legal reasoig which the courts must #e supposed competet to perform*
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&hey must$ therefore$ review the tri!unal8s decisions on uestions of this ind on the !asis of correctness$ not on a standard of reasona!ility .+,E-RE-<80->E J "dissetig$4 despite a geerall' deferetial stace% courts will itervee i the face of a )urisdictioal error% or patetl' ureasoa#le error of fact or law* 0iscussio of the cosideratios ta(e ito accout i the test for the stadard4 3xpertise4 /ell anada v. anada (anadian :adio*television and o &elecommunications ommission) 51DD6 1 0: 1J22$ at p. 1J#K$ Bonthier E o!served that$ even where a court is granted statutory appellate jurisdiction over a !oard$ • =curial deference should !e given to the opinion of the lower tri!unal on issues which fall suarely within its area of expertise Nature of the questio4 more deferece where admiistrative #od' has the o )urisdictio to ma(e polic' choices o 0tandard of orrectness for onstitutional Luestions D of /actG.aw o 2 geeral% deferece is give o questios of fact #ecause of the 7sigal • advatage@ .ess deferece is warrated o questios of law • /irst% the% is a e;amiatio of the statute* What is the purpose of the #oard To what social eeds is it respodig What is the scope of powers that have #ee grated to it Are these i #road or arrow terms 0oes it have polic'8ma(ig powers 2s suggestig that more or less deferece should #e give 2s there a privative clause Secod% it is valua#le to focus clearl' o the #oard whose decisio is #eig impuged* 2s it a specialiFed #oard 0oes it have a developed #od' of )urisprudece that guides it ad fuctios as precedet ,ow are its mem#ers selected% ad how do participate i decisio8 ma(ig 2s there a cote;t i which the mem#ers wor( that provides them with field8 sesitivit' or other advatages Third% the ature of the pro#lem uder scruti' is a importat cosideratio* 0oes the matter squarel' or #' implicatio fall withi the powers of the #oard 0oes it require specialiFed (owledge to aswer Would it #est #e decided i a cote;t specific settig% or is it a questio of geeral applicatio 0oes the pro#lem seem to have ol' oe 7correct7 aswer% or are there a variet' of possi#le ad reasoa#le iterpretatios 0oes the itegrit' of the admiistrative scheme require that the pro#lem #e aswered >oard Are there reasos to thi( that a court would #e #etter to deal with the matter 0oes it ivolve a questio of costitutioal iterpretatio that would #e iappropriatel' left to #e determied #' a #oard •
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Enited Brotherhood of Carpenters and Hoiners of @merica, =ocal >43 v. Bradco Construction =td. 2!33$5;7C($!#*fld.% ,O.02N5 • 0pectrum of privative clauses o Whether or ot the word 7fial7 should #e iterpreted i a' particular case • as cove'ig a itetio to preclude or restrai )udicial review requires a aal'sis of the provisio i light of the purpose% ature ad e;pertise of the tri#ual to the decisio of which it refers*
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Where the relevat legislative provisio is a true privative clause% )udicial review is limited to errors of )urisdictio resultig from a error i iterpretig a legislative provisio limitig the tri#ual+s powers or a patetl' ureasoa#le error o a questio of law otherwise withi the tri#ual+s )urisdictio* 9See >i#eault for tests: 2 the a#sece of legislative itetio that deferece should #e paid to fidigs of law o made #' a ar#itrator% such fidigs would #e reviewa#le o a stadard of correctess* The legislature has grated a appeal right—eve here the courts will #e deferetial o if the tri#ual is e;pert >ut whe it is ot e;pert% ad there is a privative clause% the there will #e less o deferece APP.26AT2ON o No intention of $e*i!$ture y !.(5) to re!trict 1udici$ re&ie' to on$y 1uri!diction$ tter! u#on t9in* into ccount the re$e&nt fctor! of !ttutory 'ordin* nd e0#erti!e ;udici$ deference to the deci!ion of the ritrtor i! nonethe$e!! o 'rrnted here. &he issues to !e resolved 5proper interpretation of >rt. ".M16 in coming • to these conclusions involved the interpretation of the collective agreement and its application to a particular factual situation$ matters which constitute the core area of the ar!itrator8s expertise. @lso the purpose and wording of s. "", which confers upon the arbitrator • exclusive +urisdiction to come to a final settlement of disputes arising out of the interpretation or application of the collective agreement /hus, standard of review is patent unreasonableness o o
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RE8EN/OR62N5 T,E 1O0ERN STAN0AR0 Canadian Enion of )ublic 'mployees, =ocal $:! v. 9ontreal City% 2!3345l7C(43$Fue.% Remedial Jurisdictio of the 6oucil • o ,i$$! the #ro#o!$ tht 'hen de$in* '< reedie!/ the court !hou$d on$y ##$y the correctne!! !i! To determie )urisdictio% must see whether the' acted withi their sphere of o authorit' 0id cousel act withi its )urisdictio stricto seso o /irst use the P/ test to determie whether the pro#lem addressed #' the tri#ual fell o withi the e;clusive ad specialiFed )urisdictio grated it #' the legislature Patet -reasoa#leess • The determie the stadard of review to #e applied 9seems to use the P/ test to o determie whether the stadard as well:
() E0tendin* the Rech of Deference" Sttutory A##e$! )eIim v. British Columbia 7uperintendent of Brokers% 2!33&5 ; 7C( >>4 BC% The Role of the 6ommissio o o ?here triun$ #$y! ro$e in #o$icy de&e$o#ent/ hi*her de*ree of 1udici$ deference i! 'rrnted 'ith re!#ect to it! inter#rettion of the $' 3Fro 7rdco4 7rdco" 3For4 S#eci$i>ed triun$! re!#on!i$e for the re*u$tion of !#ecific indu!tri$ or techno$o*ic$ !#here/ *reter de*ree of deference
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i! due their inter#rettion of the $' not'ith!tndin* the !ence of #ri&ti&e c$u!eB In the case at !ar$ the ommission8s primary role is to administer and apply o the 0ecurities >ct. It also plays a policy development role. Therefore% the decisios of the 6ommissio% fallig withi its e;pertise% warrat o )udicial deferece 9patet ureasoa#leess: 0E62S2ON4 o %&in* re*rd to the nture of the !ecuritie! indu!try/ the Coi!ionJ! !#eci$i>tion of dutie! nd #o$icy de&e$o#ent ro$e ! 'e$$ ! the nture of the #ro$e efore the court/ con!ider$e deference i! 'rrnted in the #re!ent c!e not'ith!tndin* the fct tht there i! !ttutory ri*ht of ##e$ nd there i! no #ri&ti&e c$u!e.
Canada Director of 6nvestigation and (esearch% v. 7outham 6nc. 2!3345 ! 7C( 4&" Can.% ase esta!lished the middle standard of review4 reasona!leness simpliciter • 2A6O>-662 J "for the court$ • Aal'sis • Statutor' Right of Appeal • o There is o privative clause% ad so )urisdictio of the 6ourt to review the tri#ual!s decisio is ot at issue The Nature of the Pro#lem >efore the Tri#ual • /riefly stated$ uestions of law are uestions a!out what the correct legal test is7 o uestions of fact are uestions a!out what actually too place !etween the parties7 and uestions of mixed law and fact are uestions a!out whether the facts satisfy the legal tests 2f the Tri#ual did igore items of evidece that the law requires it to cosider% the o the Tri#ual erred i law* Similarl'% if the Tri#ual cosidered all the madator' (ids of evidece #ut still reached the wrog coclusio% the its error was oe of mi;ed fact ad law* In !hort/ the Triun$ for*ed no ne' $e*$ #rinci#$e/ nd !o it! error/ if o there '! n error/ cn on$y h&e een of i0ed $' nd fcta questio of mi;ed law ad fact suggests a certai degree of deferece The Stadard • 2 m' view% cosiderig all of the factors 2 have cavassed% what is dictated o is a stadard more deferetial tha correctess #ut less deferetial tha 7ot patetl' ureasoa#le*7 Several cosideratios cousel deferece4 the fact that the dispute is over a questio o of mi;ed law ad fact& the fact that the purpose of the 6ompetitio Act is #roadl' ecoomic% ad so is #etter served #' the e;ercise of ecoomic )udgmet& ad the fact that the applicatio of priciples of competitio law falls squarel' withi the area of the Tri#ual+s e;pertise* Other cosideratios suggest review4 the e;istece of a ufettered statutor' right of o appeal from decisios of the Tri#ual ad the presece of )udges o the Tri#ual* Because there are indications both ways, the proper standard of review falls o somewhere between the ends of the spectrum to that of reasonableness simpliciter >n unreasona!le decision is one that$ in the main$ is not supported !y reasons that can stand up to a somewhat pro!ing examination. >ccordingly$ a court reviewing a conclusion on the reasona!leness standard must loo to see whether any reasons support it.
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The difference et'een @unre!on$e@ nd @#tent$y unre!on$e@ $ie! in the iedicy or o&iou!ne!! of the defect. If the defect i! ##rent on the fce of the triun$J! re!on!/ then the triun$J! deci!ion i! #tent$y unre!on$e. 7ut if it t9e! !oe !i*nificnt !erchin* or te!tin* to find the defect/ then the deci!ion i! unre!on$e ut not #tent$y unre!on$e. the cce#ted ##roch of court of ##e$ i! to te!t the findin*! 3of fct4 de t tri$ on the !i! of 'hether or not they 'ere c$er$y 'ron* rther thn 'hether they ccorded 'ith tht courtJ! &ie' of the $nce of #roi$ity. 0E62S2ON 6O11ENT +hen there is a mixed law and fact$ more liely to !e at the reasona!leness o standard Reasoa#le test is ot too differet from the clearl' wrog test o ?ht i! the difference '< the unre!on$e te!t nd the #tent$y unre!on$e o te!t Dont h&e to e ! #roin* to deterine 'hether it i! unre!on$e o
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=aw 7ociety of *ew Brunswick v. (yan ;::$ 7CC ;: *B0 2A6O>-662 J4 • The Pragmatic ad /uctioal Approach • ,ow 1a' Stadards Are Availa#le i Review of Admiistrative 0ecisios • o I not con&inced tht the incre!e in co#$e0ity *enerted y ddin* fourth !tndrd 'ou$d $ed to *reter #reci!ion in chie&in* 1udici$ re&ie' of dini!trti&e ction. The Pragmatic ad /uctioal Approach Applied to the 0isputed 0ecisio • The E;pertise of the 0isciplie 6ommittee • As the 6hief Justice otes i 0r* D*% the questio at this stage of the aal'sis is o whether the decisio8ma(ig #od' has greater e;pertise tha the reviewig court with respect to the questio uder review* Purpose of the .aw Societ' Act ad the 0iscipliar' Process • 6n the case of Dr. F., at para. $!, the Chief Hustice confirms earlier o +urisprudence holding that =5a6 statutory purpose that reuires a tri!unal to select from a range of remedial choices or administrative responses$ is concerned with the protection of the pu!lic$ engages policy issues$ or involves the !alancing of multiple sets of interests * or considerations will demand greater deference from a reviewing court.= Nature of the Duestio i 0ispute4 .aw% /act% or 1i;ed .aw ad /act • The CoitteeJ! deci!ion on !nction i! not one tht 'i$$ deterine future o c!e! e0ce#t in!ofr ! it i! u!efu$ c!e for co#ri!on. T,E STAN0AR0 O/ REASONA>.ENESS S21P.262TER • What 0oes the Reasoa#leess Stadard Require ofa Reviewig 6ourt • o +hen undertaing a correctness review$ the court may undertae its own reasoning process to arrive at the result it judges correct. In contrast$ when deciding whether an administrative action was unreasona!le$ a court should not at any point as itself what the correct decision would have !een. &his does not mean that every element of the reasoning given must o independently pass a test for reasona!leness. &he uestion is rather whether the reasons$ taen as a whole$ are tena!le as support for the decision
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0E62S2ON4 laco#ucci J the foud that #' referece to the stadard of ureasoa#leess% o the 0isciplie 6ommittee+s decisio o sactio was ot reviewa#le* 2t was ot for the court to reweigh the evidece* That would #e the equivalet of o correctess review*
Hudicial (eview )rocedure @ct (7:!33:,c.H.l there is no such evidence and there are no such facts to support findings of fact made by the tribunal in making a decision in the exercise of such power, the court may set aside the decision on an application for +udicial review
ederal Court @ct (7C !3">, c. -4 2as amended by 7C !33:, c. "5 "d$ #ased its decisio or order o a erroeous fidig of fact that it made i a perverse or capricious maer or without regard for the material #efore it*
(c) The Modern Stndrd Articu$ted – Pu!h#nth &. Cnd (Mini!ter of Citi>en!hi# nd Ii*rtion) )ushpanathan v. Canada 9inister of CitiIenship and 6mmigration% 2!33"5 ! 7C(3";Can.%RRR 3* ANA.S2S • A* Stadard of Review • o the focu! of the in+uiry i! !ti$$ on the #rticu$r/ indi&idu$ #ro&i!ion ein* in&o9ed nd inter#reted y the triun$ */actors To >e Ta(e ito Accout • Privative 6lauses • ,owever% the presece of a 7full7 privative clause is compellig evidece that the o court ought to show deferece to the tri#ual +s decisio% uless other factors strogl' idicate the cotrar' as regards the particular determiatio i questio 2 essece% a partial or equivocal privative clause is oe which fits ito the o overall process of evaluatio of factors to determie the legislator+s iteded level of deferece% ad does ot have the preclusive effect of a full privative clause* E;pertise • If triun$ h! een con!tituted 'ith #rticu$r e0#erti!e 'ith re!#ect to o chie&in* the i! of n Act/ 'hether ecu!e of the !#eci$i>ed 9no'$ed*e of it! deci!ion29er!/ !#eci$ #rocedure/ or non21udici$ en! of i#$eentin* the Act/ then *reter de*ree of deference 'i$$ e ccorded. aing an evaluation of relative expertise has three dimensions4 the court must o characteriFe the expertise of the tri!unal in uestion7 it must consider its own expertise relative to that of the tri!unal7 and it must identify the nature of the specific issue !efore the administrative decision*maer relative to this expertise Purpose of the Act as a Whole% ad the Provisio i Particular • Where the purposes of the statute ad of the decisio8ma(er are coceived ot o primaril' i terms of esta#lishig rights as #etwee parties% or as etitlemets% #ut rather as a delicate #alacig #etwee differet iterests #etwee differet parties% this suggests that the court should defer*
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> polycentric issue is one which involves a large num!er of interlocing and interacting interests and considerations as opposed to !ipolar opposition of 2 party%s interests—more deference for polycentric decisions The 7Nature of the Pro#lem74 A Duestio of .aw or /act o In South" if the di!#ute i! o&er *ener$ #ro#o!ition then it y +u$ify ! #rinci#$e of $'/ 'here! if the di!#ute i! o&er &ery #rticu$r !et of circu!tnce! tht i! not #t to e of uch intere!t to 1ud*e! nd $'yer! in the future.B In the usual case$ however$ the !roader the propositions asserted$ and the o further the implications of such decisions stray from the core expertise of the tri!unal$ the less lielihood that deference will !e shown. o
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(d) The Ne' 7tt$e*round – Nture of the Lue!tion /rinity Western Eniversity v. British Columbia College of /eachers 2;::!5 ! 7C( 44; BC%
Canada Deputy 9inister of *ational (evenue% v. 9attel Canada 6nc. 2;::!5 ; 7C( !:: Can.% /A6TS • /he particular uestions of law at issue in this appeal are not scientific or technical. o
6n Dr. F. v. College of )hysicians and 7urgeons of British Columbia, ;::$ 7CC !3 G BC% 5ives the distilled curret law—good for review • 16.A6,.2N 6J • The Primac' of the Pragmatic ad /uctioal Approach • A Review of the Pragmatic ad /uctioal /actors • 'xpertise • o Breater deference will !e called for only where the decision*maing !ody is$ in some way$ more expert than the courts and the uestion under consideration is one that falls within the scope of this greater expertise A !ttutory #ur#o!e tht re+uire! triun$ to !e$ect fro rn*e of reedi$ • choice! or dini!trti&e re!#on!e!/ i! concerned 'ith the #rotection of the #u$ic/ en**e! #o$icy i!!ue!/ or in&o$&e! the $ncin* of u$ti#$e !et! of intere!t! or con!idertion! 'i$$ dend *reter deference fro re&ie'in* court4 see PeFim% ad Southam%
(e) C!e Study
(iii) A##$yin* the Stndrd of Re&ie' 6ORRE6TNESS RE32EW
() Lue!tion! of 8' Canada @ttorney Aeneral% v. 9ossop 2!33$5 ! 7C(>>&Can.% .A1ER •
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It is thus clear that when 'arliament added the phrase =family status= to the 3nglish version of the :> in 1D"$ it refused at the same time to prohi!it discrimination on the !asis of sexual orientation in that >ct. In my opinion$ this fact is determinativeK .A /OREST J *** 9after cosiderig the stadard of review issue% cotiued:4 In sum$ neither ordinary meaning$ context$ or purpose indicates a legislative o intention to include same*sex couples with =family status.= .+,E-RE-<80->E J "dissetig$ U!e rod nd #ur#o!i&e ##roch to inter#retin* %un Ri*ht! $e*i!$tion o Purpose of the Act o Te;tual 2terpretatio o o Purpose ad 2tet The 7livig8tree7 doctrie The 1eaig of 7/amil' Status7 o A purposive approach to the defiitio of famil' var' with legislative purpose% ad deped o the cote;t of the legislatio 7/amil' Status7 i 6ote;t o ,owever% categories of discrimiatio ofte overlap i sigificat measure NOTES For the t'o 1ud*e! conductin* correctne!! re&ie'/ it certin$y $oo9! ! thou*h o they re en**ed in tot$$y fre!h con!idertion of the i!!ue!. o 8J%eureu02Due ;/ ho'e&er/ in conductin* #tent unre!on$ene!! re&ie' i! &ery uch centred on the ho$din* of the triun$. On the other hnd/ her n$y!i! of the $e*$ i!!ue! i! deti$ed. 6O11ENT 'ven though =1eureaux-Dube to apply the standard of patent reasonableness, she o did a great deal of investigation into the ruling, which is a departure from the benchmark of looking for something obvious. o
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*anaimo City % v. (ascal /rucking =td 2;:::5 7C(*ot assigned in (eadings ust give a !road and purposive approach •
(c) Lue!tion! of Mi0ed Fct nd 8' Qurich 6nsurance Co. v. 8ntario 1uman (ights Commission% 2!33;5 All )udges foud that the test applied was icorrect—the #oard applied the wrog legal • aal'sis ad this stadard was too high* SOP2N=A J4 • o The 6ode% however% states i s* L"$ "ow s* LM"$$ that a appeal lies to a court o a' questio of law or fact ad that the court ma' su#stitute its opiio for that of the >oard of 2quir'**** The isurace cote;t is differet from the emplo'met cote;t* o 6n my opinion, a discriminatory practice is JreasonableJ within the meaning of s. ;! o now s. ;;% of the Code if a% it is based on a sound and accepted insurance practice0 @*D b% there is no practical alternative. o 6n my view, this set too high a standard and not one that s. ;! now s. ;;% reuires It 'ou$d therefore e in##ro#rite for thi! Court to find #rticu$r #rctice o to e unre!on$e 'hen no re!on$e $ternti&e e0i!t!
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3In thi! e0#$e of the correctne!! !tndrd ein* ##$ied to i0ed fct nd $'/ So#in9 thou*ht ce u# 'ith the ne' $e*$ #rinci#$e to e ##$ied4 .+,E-RE-<80->E J "dissetig$4 The findin*! of !#eci$i>ed triun$ cn on$y e o&erturned y court if they o re #tent$y unre!on$e. >ut she would defer to the fidigs of fact withi that decisio Court cnnot !u!titute their o'n o#inion! for findin*! of • the 7ord of In+uiry/ e&en in c!e! $i9e thi! one 'here there i! no #ri&ti&e c$u!e nd there re 'ide ##e$ #ro&i!ion! She separated the fidig of fact% fr om the legal aal'sis* 2 coclusio% sice a alterative to the e;istig discrimiator' o classificatio scheme did e;ist% ad the respodet has ot% as the >oard of 2quir' poited out% preseted a' evidece that the classificatio s'stem curretl' i place for drivers over the age of M caot #e used for isured persos who are uder the age of M% 2 must coclude that the respodet has also failed to esta#lish that the discrimiator' s'stem was a reasoa#le #asis for classificatio of drivers—defer to the tri#ual o
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(d) Content of Ptent Unre!on$ene!! 1ethodolog' *ational Corn Arowers @ssn. v. Canada 6mport /ribunal% 2!33:5 ; 7C(!$;&Can.% W2.SON4 • RAT2O • o One u!tnot e*in 'ith the +ue!tion 'hether the triun$J! conc$u!ion! re #tent$y unre!on$eK rther/ one u!t e*in 'ith the +ue!tion 'hether the triun$J! inter#rettion of the #ro&i!ion! in it! con!tituti&e $e*i!$tion tht define the 'y it i! to !et out n!'erin* #rticu$r +ue!tion! i! #tent$y unre!on$e the court should ot aal'Fe the merits of a tri#ual+s iterpretatio of the Act i light of 5ATT* /o embark upon a detailed analysis of the extent to which the evidence will o support the /ribunalGs finding in the face of a privative clause is to engage in the very kind of meticulous analysis of the /ribunalGs reasoning that CE)' made clear courts should not conduct. if one determines that the anadian Import &ri!unal8s interpretation of s. #2 o >ct is not =so patently unreasona!le that its construction cannot !e rationally supported !y the relevant legislation$= then the inuiry must come to an end. APP.26AT2ON • o In y &ie'/ it i! c$er tht the Triun$ '! de$in* 'ith the 9ind of i!!ue tht it '! !et u# to de$ 'ith. It cnnot e !id to h&e een ctin* out!ide it! 1uri!diction. 1oreover% while the Tri#ual+s iterpretatio of s* LM might well #e o usatisfactor' to those cocered to secure a more li#eral iteratioal trade polic'% i m' view it ca hardl' #e descri#ed as a iterpretatio that is 7so patetl' ureasoa#le that its costructio caot #e ratioall' supported #' the relevat legislatio*7 The terms 7su#sid'7 ad 7su#sidiFed goods7 are defied i ver' #road terms ideed ad the determiatio of 7 material i)ur'7 certail'
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caot #e said to preclude the 7#roader7 iterpretatio of s* LM"$ that the Tri#ual favoured* 5ONT,2ER J4 =onthier *oe! on to $oo9 to !ee 'hether there i! e&idence to find teri$ in1ury • Tri#ual+s 2terpretatio of s* LM • o ,avig foud that the rules of statutor' iterpretatio allow cosideratio of a uderl'ig agreemet at the prelimiar' stage of determiig if the domestic legislatio cotais a am#iguit'% 2 do ot hesitate to coclude i this case that the Tri#ual did ot act ureasoa#l' i cosultig the 5ATT* Rule B of the Tri#ual+s Rules of Procedure directs the Tri#ual to 7e;amie *** o the actual ad potential volume of the *** su#sidiFed goods imported ito 6aada7 "emphasis added$* 5ive these requiremets% it was reasoa#le for the Tri#ual to cosider that the o potetial for icreased imports properl' formed part of its iquir' Potetial 2mports ad the 5ATT • ,avig regard to the #road wordig of the 5ATT provisios% it was ot o ureasoa#le ad was therefore ope to the Tri#ual to ma(e a fidig of material i)ur' eve i the a#sece of a icrease i the amout of imports% ad to cosider potetial imports The /idig of 71aterial 2)ur'+ • 5ive the evidece #efore the tri#ual% it was ot ureasoa#le for the Tri#ual o to ifer such that the 6aadia price would #e determied #' the -S mar(et% give the ope ature of the 6aadia mar(et ad give that the -ited States is the ol' via#le source for imports% that America stoc(s ot used for domestic cosumptio would have flowed ito 6aada i greater amouts Hnlie my colleague$ +ilson E$ I do not thin that the &ri!unal8s references to the • provisions of the B>&&$ as well as all other aspects of the reasoning !y which it arrived at its interpretation of 0I>$ are totally irrelevant to a determination of an application for judicial review. 6O11ENT ?ht i! intere!tin* out thi! i! ho' fr you t9e the #tent$y unre!on$e o !tndrd ?i$!on !id tht once it i! found to e #tent$y unre!on$e/ it !hou$d e !truc9 do'n =onthier *oe! further to !y tht 'e !hou$d $oo9 t the e&idence nd to 9e fin$ conc$u!ion Cow the law is that the court will loo to see whether there are some facts to o support the decisionNNN
City of /oronto ;::$ 7C( 44 .e>el 4 • E&en 'hen you *ree on 'ht the !tndrd i!/ the ##$iction cn &ry !o uch o tht there i! !ti$$ *ret de$ of con!i!tency No c$er di!tinction '< n$y!i! of re!on$e !i#$iciter/ nd #tent$y o unre!on$y My e etter to *o c9 to 5 !tndrd o
S->STANT23E RE32EW S-11AR &hree 0tandard •
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orrectness$ :easona!leness 0impliciter(0outham)$ 'atent Hnreasona!leness5H'36 'ragmatic and 9unctional 9unctional &est(/i!eault) (1) 3xpertise o M9eu# Lu$ifiction Fie$d e0#erti!e:e0#erti!e y coe fro h&in* herd $ot of c!e! o (2) Cature of ecision 'rovision,nature of L,law$ mixed law and fact,fact fact,fact 'rovision,nature Is there an entitlement (")'reclusive,privative (")'reclusive,privative clause o (#)'urpose of egislation,:eason for &ri!unal o Further nunce! in Pu!h#nthn/ Ryn/ Dr. L 9or general uestions of law$ constitutional and human rights issues$ they apply the correctness standard 5get !etter definitions from the ases6 o Correctne!! the court n$y>e! it fre!h $o!t ('here! the court $'y! !hou$d refer to the deci!ion of the triun$ in c!e of re!on$ene!! !i#$iciter or #tent unre!on$ene!!) o Re!on$ene!! (South) South" !oe'ht #roin* n$y!i! o Ptent Unre!on$ene!! (CUPE) 8oo9 t the *nitude Mu!t e o&iou! P$#$e nd o&erridin* error of triun$ o
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?here Correctne!! 'i$$ ##$y tody" (-)If it i! %R triun$/ then it i! *ener$$y the correctne!! !tndrd o o (5)the triun$ i! inter#retin* *ener$ $'/ then they 'i$$ ##$y correctne!! !tndrd o A$!o ##$y correctne!! if tht i! the conc$u!ion fter the PF te!t Not !o uch ##$yin* to reedie! nyore/ !ee CUPE &. Montre$ o
(i&) Re&ie' of the U!e
It must suffice here to say that !y !y discretion we mean an express legal power power to choose a course of action from a range of permissi!le options$ including the option of inaction. 5see /aer for a definition too6 too6
() Au!e of Di!cretion ! =round of ;udici$ Re&ie' •
6osideratios4 /irst% ad most o#vious% is the statutor' laguage i which the discretio is o grated* 2s it couched i o#)ective or su#)ective terms 2s it related to a specific purpose or is it grated for more more geeral purposes
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Secod is the ature of the iterest affected #' the discretioar' power* 2s it oe to which our legal s'stem ormall' gives a high degree of protectio ,ow seriousl' is it affected #' the decisio Third is the character of the decisio* Are there effective alterative chec(s% such as political accouta#ilit'% accouta#ilit'% that will prevet the a#use of discretio discretio /ourth is the character of the decisio ma(er* E;pertise
(oncarelli v. Duplessis Duplessis )re-Baker =aw 18=D6*A • ?0iscretio7 ecessaril' implies good faith i dischargig pu#lic dut' o Rule of .aw4 No matter how discretioar' a decisio is i terms of the wordig% the o decisio8ma(er caot defie the limits of its ow powers 0iscretio is su#)ect to )udicial review ad there is o a#solute discretio o 6ourt to esure that he is actig withi the scope of his authorit' "ultra vires$
7ummary of )re-Baker )re-Ba ker =awfound =awfou nd not to be ultra vires 8*=S 6 the use of discretion disc retion is +ithin authority o o In Bood faith Hn!iased,uninfluenced,unfettered Hn!iased,uninfluenced,unfet tered decision*maer o Cot taing into account extraneous,irrelevan extraneous,irrelevantt factors o whether a factor considered !y the agency was relevant or a purpose pursued was • authoriFed is reviewa!le !y a standard of correctness$ not unreasona!leness.
Eter >a(er 9KKK: %o'e&er/ ! 'e !' er$y in thi! c!eoo9/ $$ of tht chn*ed drtic$$y in /aer in /aer . • &his then led to the court recogniFing for the first time explicitly that the o =pragmatic and functional approach= was also of use in determining the intensity with which reviewing courts should !e approaching decisions in the discretionary section of the spectrum spe ctrum !etween !etwe en pure uestions ues tions of law $ law $ at one end$ and completely unfettered discretion to !e exercised on the !asis of the su!jective judgment of the repository of power$ at the other end. NNNNN0ee the /aer case a!ove on this issueNNNNN • The Relevace of the Pre8>a(er priciples o discretio toda'4 toda'4 • The old legal priciples mea little or othig i the case of #ad faith% actig uder o dictatio% ulawful su#delegatio% su#delegatio% ad wrogful fetterig% give that these are largel' fact8#ased grouds of a#use of discretio review* ,owever% i the realm of failig to ta(e accout of relevat factors% ta(ig accout of o irrelevat factors% ad eve actig for a improper purpose% it is ow ecessar' to as( whether the stadard of review is that of icorrectess% ureasoa#leess% or patet ureasoa#leess*
7uresh v. Canada Ca nada 9inister 9inist er of CitiIenship CitiIens hip and 6mmigration% 6mmigrati on% 2;::;5 2;:: ;5 ! 7C( 7C ( $ Can.% Can .% ,O.02N5 • o FIRST ISSUE" ?%ET%ER %IS PRESENCE ?AS RIS, TO NATIONA8 SECURIT (NO CONSTITUIONA8 ISSUE) The first factor suggests that Parliamet iteded ol' a limited right of appeal* o
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Although the 1iister+s s* "l$"#$ opiio is ot protected #' a privative clause% it ma' ol' #e appealed #' leave of the /ederal 6ourt Trial 0ivisio "s* M*"$$% ad that leave decisio ma' ot itself #e appealed "s* M*M$$* The secod factor% the relative e;pertise of the decisio8ma(er% agai favours deferece it was the miister!s decisio% ad he has special iformatio The third factor4 the purpose of the legislatio agai favours deferece* This purpose as discussed i Pushpaatha is to permit a 7humaitaria #alace7 of various iterests 7the seriousess of the dager posed to 6aadia societ'7 o the oe had% ad 7the dager of persecutio upo refoulemet o the other* Agai% the 1iister is i a superior positio to a court i ma(ig this assessmet* /iall'% the ature of the case poits to deferece* /ourth% The iquir' is highl' fact8#ased ad cote;tual* lt is the 9inister who was obliged to give proper weight to the relevant factors and none other warrats warrats deferece—patet ureasoa#leess stadard )rovided the s. >$! %b% %b% decision is not patently unreasonable unreasonable on its its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures it should be upheld. 2) SECOND ISSUE" ?OU8D IT INFRIN=E S. IF T%E PERSON ?AS DEPORTED stadard of review for decisio of the 1iister!s decisio o whether the refugee faces a su#statial ris( of torture whe deported whether there is a substantial risk of torture is a fact-driven inuiry. Such issues are largel' outside the realm of e;pertise of reviewig courts ad possess a egligi#le legal dimesio* &herefore apply the correctness standard on constitutional issue &he court may not reweigh the factors considered !y the inister$ !ut may intervene if the decision is not supported !y the evidence or fails to consider the appropriate factors.
(e 7heehan and Criminal Criminal 6n+uries Compensation Compensation Board !34$%, !34$%, $4 D=( $d% $$# 8nt. Div. Ct.%, revGd. !34>%, >; D=( $d% 4;" 8nt. C@% An e0#$e of Pre279er 8':t9in* ccount of irre$e&nt fctor! • No Right to 6ompesatio 6ompesatio o No idicatio of which which factors to cosider cosider o o 7ord cnt con!ider #tent$y irre$e&nt con!idertion!/ ut tht i! not the c!e here. With respect 6 do not construe the @ct as authoriIing the Court to review o the correctness of the BoardGs decision made within the scope of its authority o In y o#inion the Di&i!ion$ Court erred 'hen it con!idered tht it! t!9 '! to deterine if the !id circu!tnce! 'ere re$e&nt. In the $i*ht of the di!cretion &e!ted in the 7ord to h&e re*rd to $$ circu!tnce! 'hich it con!idered re$e&nt !o $on* ! it cted in *ood fith/ the deci!ion of the 7ord ! to 'ht con!idertion! re re$e&nt re unch$$en*e$e
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NOTES Dalton v. Criminal 6n+uries Compensation Board !3";%, $# 8( ;d% $3& Div. Ct.%, o @lthough the Board could properly find that her behaviour contributed to her in+ury, to hold that she was the exclusive cause of this particular in+ury was legal errorthey failed to take account of other relevant considerations RE1E02ES 0G su#stitute it ow decisio% ol' ordered it to #e re8tried • Whe it is a discretioar' decisio% the court will rarel' su#stitute its • ow decisio—this will happe ol' whe there is ol' oe decisio that could possi#l' #e reached
7hell Canada )roducts =td. v. Pancouver City% 2!33&5 !7C(;$?BC% • Decided efore 79er:'ron*fu$ #ur#o!e #rinci#$e 1c.A6,.2N J "dissetig$4 • /hese considerations lead me to conclude that courts should adopt a o generous, deferential standard of review toward the decisions of municipalities —part of democrac'—Judicial itervetio is warrated ol' where a muicipalit'+s e;ercise of its powers is clearl' ultra vires% or where coucil has ru afoul of oe of the other accepted limits o muicipal power* I would cast the proper functions of a municipality in a larger mould. &he o term =welfare of the citiFens$= it seems to me$ is capa!le of em!racing not only their immediate needs$ !ut also the psychological welfare of the citiFens as mem!ers of a community who have an interest in expressing their identity as a community SOP2N=A J4 • o Reviewa#ilit' /he decision was made under its corporate power procurement% and hence not through the Councilwas this a determinative factor 2mpermissi#le Purpose o The cit' was see(ig to use its powers to do #usiess 7to affect matters i aother part of the world7 "pp* L8LK$% a purpose which is directed at matters outside the territorial limits of the 6it'* 0o far as the purpose of the Gancouver harter is concerned it is perhaps !est expressed in s. 1D$ which provides that =ouncil may provide for the good rule and government of the city.= Any #o'er! i#$ied fro their *ener$ $n*u*e u!t e re!tricted to unici#$ #ur#o!e! nd cnnot e0tend to inc$ude the i#o!ition of oycott !ed on tter! e0tern$ to the intere!t! of the citi>en! of the unici#$ity.
/ailure To 6osider Relevat /actors A more limited ad plausi#le versio is that% while a agec' ma' lawfull' cosider a large • um#er of factors i the e;ercise of a discretioar' power "permissive relevat cosideratios$% it is required to cosider ol' some of them " madator' relevat cosideratios$* >n exercise of discretion will therefore !e ultra vires only if the agency o has overlooed a factor that its ena!ling statute expressly$ or more usually$ impliedly$ o!liged it to consider.
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1ultiple Purposes ad 6osideratios Pre&i$in* &ie' ##er! to e tht the court 'i$$ on$y ho$d !uch deci!ion! to e u$tr • &ire! if the un$'fu$ #ur#o!e or con!idertion #$yed doinnt or teri$ ro$e in the e0erci!e of di!cretion Purpose ad Proof Whe a agec' e;ercises its discretio after receivig a report from a seior official or • committee% the court ma' attri#ute to the agec' a' statemet of purpose cotaied i that report
(c) Di!cretion nd the Chrter" Unre!on$ene!! Re&i!ited •
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2 the a#sece of e;press words or ecessar' implicatio% it was presumed that the legislature did ot ited a discretio to #e e;ercised so as to curtail #asic li#erties* 0iscrimiator' practices struc( dow through misuse of discretio priciple ,owever% the mere fact that a statutor' discretioar' has the potetial to #e e;ercised i a wa' that ifriges 6harter rights ad freedoms does ot give rise automaticall' to ivalidatio* 2 such cases% the attac( will have to #e o the idividual e;ercise of discretio% ot the authoriFig provisio 3er' limited use of the 6harter to stri(e dow legislatio as void for vagueess uder
7laight Communications 6nc. v. Davidson 2!3"35 ! 7C( !:$" Can.% 026=SON 6J4 • The Relatioship >etwee Admiistrative .aw Review ad Review -der the 6harter • urthermore, not only am 6 of the view that the negative order is reasonable in the o administrative law sense but 6 also believe that it is reasonable and demonstrably +ustified in the sense of s. ! of the Charter. o +hile patent unreasona!leness is important to maintain for uestions untouched !y the harter (such as review of determinations of fact in the realm of value inuiry)$ the courts should have recourse to this standard only in the clearest of cases in which a decision could not !e justified under s. 1 of the harter .A1ER "dissetig i part$ • Though the ad)udicator clearl' had )urisdictio to ma(e a order he felt to #e o equita#le ad proper% he lost this )urisdictio whe he made a patetl' ureasoa#le decisio* .egislatio coferrig a imprecise discretio must therefore #e iterpreted as ot o allowig the 6harter rights to #e ifriged* If the exercise of discretion that affects harter rights passed the section 1 o analysis$ it must still !e determined whether it was a patently unreasona!le application NOTES • 0u!seuently in :oss v. Cew /runswic 0chool istrict Co. 1A$ 51DDK6 1 0: o 2A (C/)$ the court indicated that the icson approach represented the invaria!le rule7 that if the exercise of a discretion that affected harter rights and freedoms passed muster !y reference to section 1$ it was thereafter redundant to inuire whether it was$ nonetheless$ patently unreasona!le. OT,ER 21PORTANT 6O1PONENT O/ T,2S 6ASE • o If decision maer is given a wide degree of discretion under the statute and argua!ly he has a choice of how to interpret how far he can go$ then he must exercise his discretion within the !ounds of the harter
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ourt indicated it is not re*weighing factors that the discretionary decision maer has taen into account—if discretionary decision maer has applied appropriate factors$ the court will not overturn it even if it would have come to a different decision on those factors itself
The Jurisdictio of Tri#uals ad the 6ostitutio T,E J-R2S026T2ON O/ TR2>-NA.S TO 0E620E 6ONST2T-T2ONA. 6,A..EN5ES &ri!unals should interpret their legislation in a way that is consistent with the • constitution. > statutory power that may seem wide enough to authoriFe the infringement of a harter protected right should !e =read down=
*ova 7cotia Workers compensation v. 9artin 2;::$5--missing thisdownload this case 1arti ad .esseur • ,O.02N5 • O&erru$ed Coo#er nd c$o!er to Cuddy Chic9!. o If the legislature has granted authority to consider the law$ then it has jurisdiction o to address constitutional law /or costitutioal )urisdictio—must cosider the madate of the tri#ual through o statutor' iterpretatio su!ject to a correctness standard for a constitutional determination o o re!utta!le presumption that if it can decide legal uestions$ it can decide constitutional uestions can !e re!utted !y legislation (statute) excluding it • practical considerations—whether the tri!unal was supposed to • mae decisions expeditiously
)aul v. British Columbia2appeals level5 ,O.02N5 • Same iterpretatio as 1arti v* .esseur* o o Sttutory inter#rettion:did the $e*i!$ture *i&e the uthority to deterine +ue!tion! of $' If !o/ they cn de$ '< e0i!tin* ori*in$ ri*ht! ! 'e$$ APP.26AT2ON • o The' had power to decide questios of law—ad there was othig to re#ut this* 6O11ENT • =ook for conduct that infringes the charter, or legislation that infringes the charter o o 6n 9artin, the legislation itself was found to infringe the Charter
Hane patient 2Divisional Court5 ,O.02N5 • 6ourt applied the Mrtin te!t o 8oo9ed t Ment$ %e$th Act:$oo9ed t the #ur#o!e of the $e*i!$tion o 'ointed to the need to have decisions made in a timely way
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+hich was not contemplated to try harter claims$ which are a lengthy process
Cooper v. Canada 1uman (ights Commission% 2!33#5 $ 7C( ">& Can.% .A1ER 6J4 • 2troductio • o 5eerall' accepted priciple4 that tri#uals which have )urisdictio over the geeral law% have )urisdictio to refuse to appl' ad hece effectivel' to reder ioperative laws that the' fid to #e ucostitutioal—.amer challeges this o @s a matter of constitutional principle that power must be reserved to the courts and should not be given over to bodies that are mere creatures of the legislature The 2ssue i this 6ase • .a /orest J relies o the o8ad)udicator' ature of the 6ommissio to de' it o )urisdictio over the geeral law% ad hece over the 6harter* ,e ifers as a matter of logic that tri#uals appoited #' the 6ommissio caot cosider 6harter challeges to the 6aadia ,uma Rights Act% #ecause 6harter challeges will ot get past the 6ommissio* As well% he fails to fid i the provisios of the Act the #asis for impl'ig a legislative itet that tri#uals have )urisdictio over the geeral law* 1c.achli J% #' cotrast% focuses o specific provisios i the Act which gover the o 6ommissio ad tri#uals% to ifer the itet #' Par liamet that these #odies ca cosider the geeral law% ad hece 6harter challeges to their ea#lig legislatio* The Separatio of Powers • 6udd' 6hic(s sa's that a tri#ual could ot ma(e a declaratio of ivalidit'% o #ecause it was ot a court .a /OREST J "Sopi(a% 5othier ad laco#ucci JJ cocurrig$4 • Aal'sis • &he essential uestion facing a court is whether the ena!ling statute (expressly$ or o implicitly) grants the power to determine uestions of law 2f it is ot e;pressl' provided% determie whether this power is implied #' If a tri!unal does have the power to consider uestions of law$ then it follows o !y the operation of s. A2(1) that it must !e a!le to address constitutional issues$ including the constitutional validity of its ena!ling statute.5clearly enunciated !y this ourt in uddy hics6 The Scheme of the Act • The Jurisdictio of the 6ommissio • Practical 6osideratios • o practical considerations may !e of assistance in determining if the intention of 'arliament$ !ut they are not determinative. the co#o!ition nd !tructure of the triun$/ the #rocedure efore the triun$/ the ##e$ route fro the triun$/ nd the e0#erti!e of the triun$. The Jurisdictio of a Tri#ual uder the Act • 1c.A6,.2N J ".+,eureu;80u#e J cocurrig$ "dissetig$4 *** • 2 m' view% ever' tri#ual charged with the dut' of decidig issues of law has the o cocomitat power to decide 6harter issues too* NOTES • O&erru$ed in Mrtin c!e o&e o
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Where a statutor' authorit' does have )urisdictio to cosider the relevat 6harter questio% all of the idicators are that the statutor' authorit' 7ot ol' has the authorit' #ut a dut' to ascertai7 the aswer to the costitutioal challege74
PART IV – CONSTITUTIONA8 ISSUES (i) Triun$! Authority to Decide Con!titution$ I!!ue! Weber v. 8ntario 1ydro 2!33> 5;7C(3;3 2A6O>-662 J ".a /orest ad Sopi(a JJ cocurrig$ "dissetig o the cross8appeal$4 • A Ar#itrator 2s Not a 76ourt7 • Tri#uals is ot court uder s*ML"$ due to followig differeces o Eve if a 6ourt% a Ar#itrator 2s Not a 6ourt 7of 6ompetet Jurisdictio7 • Although 2 do ot dispute the a#ilit' of ar#itrators to decide 76harter issues%7 this o a#ilit' does ot iclude the a#ilit' to grat 6harter remedies* o +hile I agree that ar!itrators must not apply an invalid law$ an ar!itration decision cannot have the effect of actually striing down the law7 only a court can mae such a declaration (uddy hics)$ In short$ it cannot remedy the fact that the law (or !ehavior) violates the harter$ it o can only remar that it is so. Ol' courts ca grat such 6harter remedies o 1c.A6,.2N J "5othier% .+,eureu;80u#e% ad 1a)or JJ cocurrig$4 • "#$ The 6harter 6laims • o It fo$$o'! fro Mi$$! tht !ttutory triun$! creted y Pr$ient or the 8e*i!$ture! y e court! of co#etent 1uri!diction to *rnt Chrter reedie!/ #ro&ided they h&e 1uri!diction o&er the #rtie! nd the !u1ect tter of the di!#ute nd re e#o'ered to 9e the order! !ou*ht. > tri!unal will !e a court of competent jurisdiction if its constituent legislation o gives it power over the parties$ the issue in litigation and power to grant the remedy which is sought under the harter. (ills) NOTES • 9ooring v. Canada *ational )arole Board% 2!33#5 6 7C( 3> BC% determined that o the *ational )arole Board was not a Jcourt of competent +urisdictionJ i the cote;t of a argumet that the #oard should have e;cluded illegall' o#taied evidece i parole revocatio proceedigs #' referece to sectio ML"M$ of the 6harter .i(e the #asic structure ad fuctio of the Parole >oard% the laguage of the >oard+s% ea#lig statute ma(es it clear that the >oard lac(s the a#ilit' or )urisdictio to e;clude relevat evidece
T,E STAN0AR0 O/ RE32EW >lso$ once the courts have acnowledged that an administrative tri!unal has jurisdiction to • determine a constitutional challenge to its ena!ling legislation$ either on its face or as applied to the particular dispute$ they have often added that the tri!unal8s decision on the constitutional uestion is su!ject to judicial review for correctness. 2 fact% i aother cote;t% the Supreme 6ourt has recogiFed the eed for o )udicial deferece to agec' fidigs of costitutioal or 6harter facts* This was i Suresh . 'rovided it was taen into account and the decision was not patently unreasona!le$ o the court =should not reweigh= the correct factors.
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PART V – REMEDIA8 ISSUES (i) Stndin* STAN02N5 2N J-0262A. RE32EW PRO6EE02N5S 5eeral Turig poits4 2 each case% the Supreme 6ourt upheld the applicat+s status to commece • the particular declarator' proceedigs ad% more geerall'% the court held that )udges had a #road discretio% at least i costitutioal matters% to allow proceedigs to #e commeced #' private idividuals with o particular sta(e* o Thorso v* Attore' 5eeral of 6aada% 9KC: 2 S6R "Ot*$ "laguages act$& Nova Scotia >oard of 6esors v* 1cNeil% 9KCB: M S6R MB "NS$& "movie cesor$ ad 1iister of Justice of 6aada v* >orows(i% 9K: M S6R C "Sas(*$ "therapeutic a#ortio committee$ 'ach of these cases involved attempts to challenge the constitutionality of legislation by private individuals with no particular stake beyond that of being citiIens and taxpayers.
inlay v. Canada 9inister of inance% 2!3"#5;7C(#:4Car ,O.02N5 • A #$intiff cn !ue 'ithout 1oinin* the Attorney2=ener$ in t'o c!e! (c$!!ic ru$e) • fir!t/ 'here the interference 'ith the #u$ic ri*ht i! !uch tht !oe #ri&te ri*ht o of hi! i! t the !e tie interfered 'ith. 3*ener$ ru$e4 !econd$y/ 'here no #ri&te ri*ht i! interfered 'ith/ ut the #$intiff/ in re!#ect of o hi! #u$ic ri*ht/ !uffer! !#eci$ d*e #ecu$ir to hi!e$f fro the interference 'ith the #u$ic ri*ht. Ol' the persos most directl' affected should have stadig% therefore there should #e o • other reasoa#le ad effective maer i which the issue ma' #e #rought #efore a court* he i! #er!on 'ith *enuine intere!t in the!e i!!ue! nd not ere u!yody. • Cot necessary to have prior reuest of >ttorney general where it is clear from the position • adopted !y the >ttorney Beneral in the case that he would not have consented to the institution of proceedings—such as the case here. Whether a plaitiff should #e grated either declarator' relief or i)uctive relief i a • particular case is a matter of )udicial discretio to #e e;ercised accordig to criteria ad cosideratios which are somewhat differet for the two forms of relief* The respodet should i m' opiio #e recogiFed as havig stadig to see( the i)uctive • relief pra'ed for i his statemet of claim* NOTES • Oe of the implicatios of the /ila' )udgmet seems to #e that the discretio of the o court ol' comes ito pla' whe the applicat or plaitiff fails to esta#lish stadig #' referece to the traditioal commo law rules or a ' relevat statutor' provisios with respect to stadig* P->.26 2NTEREST STAN02N5
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Canadian Council of Churches v. Canada 9inister of 'mployment and 6mmigration% 2!33;5 ! 7C(;$#Can.% ,O.02N5 • Should the 6urret Test for Pu#lic 2terest Stadig >e E;teded • o The *rntin* of #u$ic intere!t !tndin* i! not re+uired 'hen/ on $nce of #roi$itie!/ it cn e !ho'n tht the e!ure 'i$$ e !u1ect to ttc9 y #ri&te $iti*nt. o The deci!ion 'hether to *rnt !ttu! i! di!cretionry one 'ith $$ 'hich tht de!i*ntion i#$ie!. The Applicatio of the Priciples for Pu#lic 2terest Stadig to this 6ase • o ?hen #u$ic intere!t !tndin* i! !ou*ht/ con!idertion u!t e *i&en to three !#ect!. 9irst$ is there a serious issue raised as to the invalidity of legislation in uestion? 0econd$ has it !een esta!lished that the plaintiff is directly affected !y the legislation or if not does the plaintiff have a genuine interest in its invalidity? &hird$ is there another reasona!le and effective way to !ring the issue !efore the court? Serious 2ssue of lvalidit' • ,as the Plaitiff 0emostrated a 5euie 2terest • Whether There is Aother Reasoa#le ad Effective Wa' to >rig the 2ssue >efore the • 6ourt These issues will #e discussed i the course of the umerous claims with a factual o poit of referece—There are other reasoa#le methods of #rigig the matter #efore the court* 2 would haste to add that this should ot #e iterpreted as a mechaistic applicatio o of a techical requiremet* Rather it must #e remem#ered that the #asic purpose for allowig pu#lic iterest stadig is to esure that legislatio is ot immuiFed from challege*
Priend v. @lberta !33"5 ! 7C( &3$ @lta.% 6ORJ"for ma)orit'$4 • Stadig o 6aadia 6oucil of 6hurches "at p* M$4 the three cosideratios o irst, is there a serious issue raised as to the invalidity of legislation in uestionK o 7econd, has it been established that the plaintiff is directly affected by the legislation o or if not does the plaintiff have a genuine interest in its invalidityK /hird, is there another reasonable and effective way to bring the issue before the o courtK The on$y other 'y the i!!ue cou$d e rou*ht efore the Court 'ith re!#ect to the other !ection! 'ou$d e to 'it unti$ !oeone i! di!criinted *in!t on the *round of !e0u$ orienttion in hou!in*/ *ood! nd !er&ice!/ etc. nd ch$$en*e the &$idity of the #ro&i!ion in ech ##ro#rite c!e. Thi! 'ou$d e '!tefu$ of 1udici$ re!ource! -fair4 #urdes of dela'% cost ad persoal vulera#ilit' to discrimiatio for the idividuals This caot #e a satisfactor' result*
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'rovisions are all very similar raise the same constitutional issue and don%t depend on any particular factual context—so no need to wait for e&idence of di!criintion in re! other thn e#$oyent
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further dien!ion to the !tndin* doctrine Canadian 'gg 9arketing @gency v. (ichardson,2!33"5 $ 7C( !>4 *W/%. 6n delivering the )oit ma)orit' )udgmet% laco#ucci ad >astarache JJ stated4 +here a case has !een fully argued on the merits then$ notwithstanding that in the general argument it may appear that the plaintiff has no status to maintain the action$ if the uestion involved is one of pu!lic importance then the ourt has a discretion to decide the case on the merits.
1arris v. Canada 2;:::5 & C $4 C@% 6oclusio o Stadig • A ere $e*$ o#inion on inter#rettion of !ttute/ 'ithout ore/ 'ou$d e o in!ufficient for court to e0erci!e it! di!cretion to reco*ni>e #u$ic intere!t !tndin*. NOTE • 6ourt also idicates that% if the allegatio had merel' #ee that the miister had erred o i law i his iterpretatio of the Act% the situatio would have #ee differet* So a mere error of law ma' ot cout for as much as assertios of a#use of discretio*
T,E RO.E O/ T,E ATTORNE 5ENERA. 'nergy )robe v. Canada @tomic 'nergy Control Board% 2!3"&5;C!$"/D% 2SS-E4 • The applicat% Eerg' Pro#e% does ot o#)ect to the Attore' 5eeral ma(ig o argumets to the 6ourt o the issues #ut coteds that he should do so ol' as a amicus curiae* The Attore' 5eeral o the other had wats full part' status—so that he ca have o rights to appeal REE0 J4 • o Duty of A= i! to en!ure tht the dini!trtion of #u$ic ffir! i! in ccordnce 'ith $'/ nd thi! in&o$&e! the ri*ht to r*ue either !ide of c!e: direct intere!t in c!e 2t is a 7questio of geeral importace is raised7 sice it is a cotiuig #usiess activit'—ot )ust this istace Second$y the i!!ue efore the Court i! one of *ener$ #u$ic i#ortnce: o enefici$ to her A=! #er!#ecti&e
2NTER3ENORS 2terveer has status to participate i litigatio to which the applicat has ot #ee amed as • a part'* T'o for! of inter&enor!" • o (-) Inter&enor Prty:*i&en $$ the ri*ht! of the ori*in$ #rtie! to the $iti*tion/ inc$udin* the ri*ht to ##e$
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(5) Friend of the Court (icu! cure):re!tricted to the $e&e$ of #rtici#tion !#ecified y the court nd doe! not e0tend to conferrin* ##e$ ri*ht!. the curret Otario Rules of 6ourt "Rules of Practice$4 *"$ Where a perso who is ot a part' to a proceedig claims a iterest i the o su#)ect matter of the proceedig% "a$ a iterest i the su#)ect matter of the proceedig* "#$ that he or she ma' #e adversel' affected #' )udgmet i the proceedig& or "c$ that there e;ists #etwee him or her ad oe or more of the parties to the proceedig a questio of law or fact i commo with oe or more of the questios i issue i the proceedig% the perso ma' move for leave to itervee as a added part'* "M$ O the motio% the court shall cosider whether the itervetio will udul' dela' o or pre)udice the determiatio of the rights of the parties to the proceedig ad the court ma' add the perso as a part' to the proceedig ad ma' ma(e such order as is )ust* &his is a iscretionary power of the court Possi#le e;ceptio of itervetios #' the Attore' geeral o 0iscrectio regardig status ad the e;tet of participator' rights% su#)ect to the o limitatios imposed #' the laguage of the relevat rules Try to &oid du#$iction/ or *rnt inter&enor !ttu! ut on$y $$o'in* 'ritten r*uent nd no or$ r*uent =ener$$y inter&enor! re not $$o'ed to introduce ne' i!!ue! fter the fir!t $e&e$ deci!ion (7C):they 'nt fin$ity o 7ut y $$o' ne' i!!ue if it doe! not #re1udice nd on other con!idertion! o
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(i&) Inter$ocutory Re$ief nd Sty! 2troductio ;udici$ Re&ie' Procedure Act:##$ie! in Ontrio/ ut not to feder$ #rocedure! • Certiorri/ ndu!/ nd heu! cor#u! o o Ne' one! dded" to 9e dec$rtion! nd in1unction! 6n ( v. Batchelor, 2!34"5 ; 7C( 3"" 8nt%, • service of a motion for prohi!ition and to uash proceedings under the -ntario o riminal >ppeal :ules was to suspend the jurisdiction of the provincial court until review proceedings were disclosed or disposed of the provincial court o /atchelor is inapplica!le in civil matters !y caselaw The Otario SPPA% sectio M"$—lauchig of a appeal sta's the implemetatio of the • decisio uder appeal "a#set a statutor' provisio to the cotrar' or a order from the appellate #od'$* ,owever% sectio M"M$ sa's that a applicatio for )udicial review does ot qualif' o as a appeal for these purposes* Applicatio to the )udge If the #rty need! re!u$t nd you cnt *o throu*h tht #roce!!:!. !y! tht you cn • ##$y to !in*$e 1ud*e ! tter of ur*ency Sta'ig the Admiistrative Process /or iterim relief% 6ourt applies the same test as i i)uctio cases • &o get an interim injunction (>merican yanamide) •
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(1)Ceed to show that there is a serious case to !e made (2)&hat the applicant seeing injunction will suffer irrepara!le harm o (")&he !alance of convenience favours granting the injunction (!w, applicant O o respondent) Metro#o$itn !tore! confir! tht thi! i! the te!t to ##$y in pu!lic cases with the addition of consideration of pu!lic interest. 6odificatio of writs uder JRPA% that these writs are still e;istet of grouds to refuse i)uctio 0ela'—laches o o 6oduct of the parties 2f it is icosequetial o o
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9anitoba @ttorney Aeneral% v. 9etropolitan 7tores 9/7% =td. 2!3"45 l7C(!!:9an, >EETQ J4 • >eetF J re)ected the argumet there should #e a presumptio of validit' for the • purposes of iterlocutor' relief where a statutor' regime was #eig challeged for lac( of coformit' with the 6aadia 6harter of Rights ad /reedoms* The -sual 6oditios for the 5ratig of a Sta' • >merican yanamid o. v. 3thicon td K 3-Q4 - A$$ ER H (En*. %8)" • (-)nece!!ry to eet thi! te!t '! to !ti!fy the Court tht there '! !eriou! o +ue!tion to e tried ! o##o!ed to fri&o$ou! or &e0tiou! c$i. (5)?hether the $iti*nt 'ho !ee9! the inter$ocutory in1unction 'ou$d/ un$e!! the o in1unction i! *rnted/ !uffer irre#r$e hr/ tht i! hr not !u!ce#ti$e or difficu$t to e co#en!ted in d*e (6)7$nce of con&enienceB or $nce of incon&enienceB:deterintion of o 'hich of the t'o #rtie! 'i$$ !uffer the *reter hr fro the *rntin* or refu!$ of n inter$ocutory in1unction/ #endin* deci!ion on the erit "M$ The >alace of 6oveiece ad the Pu#lic 2terest /OR A 6ONST2T-T2ONA. 6ASE • "i$0ifficult' or 2mpossi#ilit' to 0ecide the 1erits at the 2terlocutor' Stage • At the iterlocutor' stage% the court is ot i a adequate positio to decide the merits o of a case eve though the evidece that is li(el' to #e adduced uder s* seems of little weight "ii$The 6osequeces of 5ratig a Sta' i 6ostitutioal 6ases • "iii$6oclusio • 9or !oth suspension cases and exemption constitutional cases an interlocutory o stay of proceedings ought not !e granted unless the pu!lic interest is taen into consideration in the !alance of convenience and weighted together with the interest of private litigants—to a serious challenge of statute /his is so, even if there is a prima facie case against the law Too hi*h !tndrd in e0e#tion c!e! to !y tht it i! on$y in @e0ce#tion$@ or o @rre@ circu!tnce! tht the court! 'i$$ *rnt inter$ocutory in1uncti&e re$ief. 7ut the !tndrd y e o9y for !u!#en!ion c!e! o NOTES (H(-9acDonald =td. v. Canada @ttorney Aeneral%, 2!33&5 ! 7C( $!! Fue.%, >* The Stregth of the Plaitiff!s 6ase • E0ce#tion! to the ##$iction of the Aericn Cynid te!t in o Chrter $iti*tion (-)'here the re!u$t of the inter$ocutory #roceedin*! 'ou$d effecti&e$y re!o$&e the tter in di!#ute nd
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(5)'here the +ue!tion of con!titution$ity #re!ented ! @!i#$e +ue!tion of $' $one. Refiig the cocept of 7irrepara#le harm7 meat i a pu#lic law settig4 o The fiacial damage which will #e suffered #' a applicat followig a refusal of relief% eve though capa#le of quatificatio% costitutes irrepara#le harm 1oetar' loss of this ature will ot usuall' amout to irrepara#le harm i private law cases* * The Pu#lic 2terest o @Pu$ic intere!t@ inc$ude! oth the concern! of !ociety *ener$$y nd the #rticu$r intere!t! of identifi$e *rou#!. Whe a private applicat alleges that the pu#lic iterest is at ris( that harm must #e o demostrated o If #u$ic uthority i! chr*ed 'ith the duty of #rootin* or #rotectin* the #u$ic intere!t nd tht the i#u*ned $e*i!$tion/ re*u$tion/ or cti&ity '! undert9en #ur!unt to tht re!#on!ii$ity/ the court 'i$$ redi$y cce#t it! !tteent on 'hether #u$ic hr i! deon!trted. 6osideratio of the pu#lic iterest ma' also #e iflueced #' other factors such as o whether it is a 7suspesio7 case or a 7e;emptio7 case* 7imilarly, even in suspension cases, a court may be able to provide some relief if it can sufficiently limit the scope of the applicantGs reuest for relief so
('9'D6'7--@pplication to Areenfield exam F Applicatio of JRPA writs • De$y • 2f parties came M 'ears after the pro#lem% the the court would sa' that the'!re out of o time #ecause of the writ of laches"dela'$—facts stale% ufair No time limit% #ut ot allowed if it is ufair* I!!ue 'ou$d e 'ht court! e0#ect i! re!on$e tie Normal appeal provisios are or B da's—so 'ou ca argue that it is withi a reasoa#le rage Conduct • There '! !oe underhndedne!!:!ee %oe0 c!e o Inconseuential • If the defect is a real defect !ut has minimal impact on the overall result—then no o remedy granted o +ill happen where there was a procedural fairness defect$ !ut court is confident that the result would !e the same. • If it i! e&idence tht '! not herd —the 'ou ca as( that it #e set #ac( to the tri#ual to coduct the hearig i accordace with fairess Beneral rule4 courts do not su!stitute their own opinion for that of the tri!unal • o 3xception4 when there is only one possi!le outcome 1a' as( for madamus% or prohi#itio—which is what follows from old writs • 6f it is bias, it is very important to ask for a different decision maker • COSTS • ?innin* #rty i! entit$ed to co!t!:!u!tnti$ nd #rti$ indenity o o 7ut no co!t! if it i! no&e$ or te!t c!e o If it i! #u$ic intere!t c!e:u!u. the !e ru$e!:on occ!ion/ the court
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