REMEDIES Unreasonable delay: Prejudice to the fairness of a hearing? –Blencoe To get an admin law remedy need to show more than delay in the hearing Must show that there has been prejudice to the hearing, b/c of the delay o Examples: Proof of significant prejudice which results from an unacceptable delay” (i.e. evidence lost, memories fade, witnesses died) *not *not met here; no sig. prejudice to hearing or “other” prejudice Remedies may include: stay of proceedings (normal CL remedy for abuse of process), order for expedited hearing, costs
CONTENT Duty to Disclose –disclosure of info - What if the report to the Minister could be characterized as a legal opinion? In Suresh In Suresh S was entitled to disclosure only to extent that public security was o safeguarded or safeguarded or other privilege was protected) i.e. earlier case (under CL, not Charter) held that the CL doctrine of Solicitor o & Client privilege (LEGAL PRIVILEGE) prevented disclosure (Prichard ( Prichard v. Ontario HR Commission) Commission) in Prichard (SCC) legal opinions given to an agency by the staff counsel are the subject of lawyer-client privilege - In principle ordinary statute can oust privilege, b/c privilege is CL o *BUT: in Prichard , court found that procedural fairness does not require that privilege be pierced* o QUESTION: What if procedural fairness (in CL) is distinguished from procedural fairness under s.7? Can it be? Duty to Give Reasons - Baker : duty to give reasons whenever important interests are at stake in Baker Justice Baker Justice L’Heureux-Dube L’Heureux-Dube wrote extensively regarding the o importance of reasons, even though traditionally the CL position on duty of fairness, as a general rule, does not require the provision of reasons by admin decisions usefulness of reasons = ensuring fair and transparent DM; fosters better DM by ensuring that issues and reasoning are well articulated and more carefully thought out; reasons allow a llow parties to see the applicable issues have been carefully considered, reasons are invaluable if decision is appealed, questioned or considered on JR; those affected more likely to feel they were treated fairly and appro. If reasons aregiven advantage of written reasons = in cases such as (1) where the decision has important significance for the individual, (2)
-
where there is a statutory right of appeal or in other circumstances, some form of reasons should be required. HERE: profound importance of H&C decision to those affected –decision critical to their future o *BUT the reasons do not always need to be “formal” : in Baker –the notes of a junior officer were sufficient even though he did not make the final decision; he played a key role in process though Suresh: the Minister (not a delegated officer) MUST provide RESPONSIVE reasons o Suggestion: the duty to give reasons is likely to become heavier in rough proportion to the significance of the interest (even in non-Charter context)
Right to State-Funded Legal Counsel - Procedural fairness or RoL ≠ right to legal representation - However, if s.7 is triggered PF might include this as a right *NB (Minister of health and Community Service) vs. G (J) – “fair hearing” may require requirement of legal counsel => CONTEXT: i.e. “security of person”?* Important factors: right to security of person engaged? Hearing adversarial? o Seriousness of the interest? Complexity? Individual has lmtd capacity?
Preliminary Questions: It is important to understand the statutory regime and always ask the following questions when reviewing these cases/hypos:
Generally, what is the nature of the whole decision-making process? Is it a multi-stage process and what generally happen at each stage? Proximity issue: how are the processes at the different stages inter-related? High or low? How does this one stage impact on the final decision? Even if the procedure is not dispositive/final, it may have a large impact on the final decision Based on the nature of the interest at stake at the different stages, how does the process impact on the individual (exposure to harm at each stage)? What kind of procedures is the applicant looking for (where do they fit in the process?) nd rd and what is the procedure accorded at the 1st stage (and 2 , 3 , etc… stage) of the process?
Decide: is PF required at first stage of D/Making Process? Determine: Were the procedures provided, adequate to meet the duty of PF?
Common Law Procedural Fairness — when statute is silent on the matter and does not exclude any of the CL procedural entitlements WHETHER PF APPLIES: RULE [threshold] L‘HD in Baker (SCC 1999): ―The fact that a decision is administrative and affects ―the rights, privileges or interests of an individual‖ is sufficient to trigger the application of the duty of fairness.‖ (so long as the statue does not state otherwise)
Cardinal v Director of Kent Institution SCC (1985)= Le Dain JJ : ‗At common law, a duty of procedural fairness lies on every public o authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual.‘ This is a LOW threshold that is easily met nowadays o See Homex , Lafontaine, CPR the legislative VS administrative decision distinction is a factor but in the end, must look at substance, not form; must look at impact of what is happening on individuals. Universities (committees and senate) are bound by PF requirements – since o universities are bound by statutory regimes thus admin law applies [ see Khan] o See page 34 of NOTES for guidance btw admin vs. general legislative policy making o NOTE: just b/c the DM is Cabinet, a Premier etc does not mean they are auto beyond realm of PF — it depends on the kind of decision being made (recall: Roncarelli v Duplessi 1959 SCC ) o See Canada v Inuit Tapirisat of Canada 1980 SCC = ex. Of legislative decision that affords no PF; was a generalized decision (affects hundreds of 1000s)
o
o
o
Broad discretionary power affecting the public interest – based on politics and public policy choices; Cabinet is supposed to be responding to political, social, and economic circumstances of the day! Not practical and is inefficient for Cabinet to hold oral hearings like this for every time this kind of appeal – Cabinet is entitled to rely on committee reports and recommendations from Cab members and individuals THUS only practical procedures will be implemented See Vancouver Island Peace Society v Canada 1994 FCTD page 37 of notes) At the very least, a legislative decision must be: (1) discretionary (2) Usually general in its application (3) polycentric see Canadian Association of Regulated Importers v Canada (1993 FCCA) if the decision is essentially a legislative or policy matter (including a general quota policy) involving general or broad discretionary powers, PF will not be applicable (i.e. threshold will not be met). On Bylaws see Homex Reality (SCC 1980) Although bylaws are ―in form legislative‖ (Dickson J) ―Where the bylaws in question directly affect the land or property of specified individuals, the Courts have implied a common
law right to be heard... One cannot label an act ‗legislative‘ for the purpose of dispensing with fairness.‖ (except where a statute expressly takes it away) Even though this was a government/legislative decision, it was not a generalized decision that affected the public – the bylaw was narrow, specific, and targeted an individual.
Examples: Where a ‘right, interest or privilege’ is triggered Re Webb (OCA) = had a real and substantial benefit as welfare r ecipient to subsidized housing (interest) She was not applying for the benefit, she already had the benefit, and now risk o losing it THUS entitled to PF o BUT PF here was not breached; was given verbal notice and written Hutfield (A QB) = Doctor applying for medical privileges; decision affected the doctor‘s reputation that result in a ‗slur‘ THUS entitled to PF (to be heard and given reasons for refusal and opportunity to respond to reasons) General Rule: Must be a final disposition on the matter and NOT an interim decision Exception: If the interim decision has de facto finality AND there is a serious interest at stake — the interim decision will be relied on at the final disposition ( Re Webb) – the recommendation of the review board was the basis of the final decision made by the Lieutenant Governor on whether patient would be released o Consider: Degree of proximity btw interim step and final decision Nature of the interest at stake: Exposure to harm Opportunity to know case against you does NOT always mean full disclosure ADM must at least consider disclosure then give principled reasons why not disclosing Knight 1990 SCC combined notions of natural justice and modern notions of fairness; SCC no longer relies on ―natural justice‖
The Knight Doctrine: How to determine if this doctrine applies? o 3 factors to consider: nature of decision: o no = Is the decision made by the DM of a legislative/general nature (policy)/preliminary nature? Or… o yes = Is the decision an administrative and specific nature (i.e. specific to the individual) and or does it carry an aspect of finality? Relationship btw DM and the individual o Ridge no longer applies! Even office holders at held at pleasure should receive PF o Here: office holder and admin body determining outcome of K Impact of decision on individual Greater = points to YES PF applies o
Legitimate Expectation? For requirements of est. LED for PF see Mount Sinai SCC Notes = p48
Look at the conduct and past conduct, representations of the public authority Expectation cannot conflict w/PA‘s statutory remit No need to prove that you were aware of the practice that you are now relying on or that the promise was made to you individually o No need to show that you had express knowledge of the practice/conduct that is alleged to create the LE o No need to show that you relied on the conduct, promise, representation to your detriment
Must have a clear, unambiguous and unequivocal practice in order to claim LED — CUPE v Ontario (Minister of Lavour) 2003 SCC
[Reasonable Apprehension of Bias]: RAB Test: whether a reasonable (objective), well informed person having thought the matter through would conclude that an administrative decision maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments (Committee for Justice and Liberty) Admin tribs don‘t have to meet the same degree of independence as the courts do – doesn‘t have to be 100% independent; just ―sufficiently free‖ Break down of the RAB test: Committee for Justice and Liberty o If reasonable person with an informed understanding of how the ADM functions perceives that the decision making is biased = enough to have the decision quashed o Apprehension of bias must be a reasonable one held by reasonable and right minded persons o Grounds for the apprehension of bias must be substantial – real likelihood or probability of bias should be demonstrated Mere suspicion of bias is insufficient to meet the test o
[Independence of DM]:
3 components of judicial independence apply to ADM ( Matsqui Indian Band ) o (1) security of tenure o (2) financial security (3) administrative/institutional control o Standard is lower than for judges o ―requisite level of institutional independence will depend on the nature of the trib, the interests at stake, and other indices of independence such as oaths of office‖ ( Matsqui Indian Band ) ―test for institutional independence must be applied in light of the functions being performed by the particular trib at issue.‖ ( Matsqui Indian Band )
There is no general constitutional guarantee of independence for ADM (Ocean Port) o BUT if Charter rights are triggered this can trump ES ADM independence is a CL principle of natural justice – the amount of independence required at CL could be ousted by express statutory language or necessary statutory implication as long as constitutionally valid ( Ocean Port) Degree of independence of ADM is determined by ES (Ocean Port) o It is not open to the courts to apply the CL rule if there is clear statutory language determining degree of independence
Emergencies Exception When the state has to act quickly to protect public‘s interest for whatever reason.
R v Randolph (1966 SCC) an interim order to w/d provisions of mail Interim orders – services to an individual was made w/o a hearing b/c it was believed that the mail service was being used for criminal purposes o NOTE: once PF threshold is est. the state is obliged to review and reassess this decision; action in question is interim only Emergency nature of the decision – Cardinal v Dir. Of Kent Instit. (1985 SCC) b/c of the emergency nature of the decision to impose segregation in the prison due to the appellant‘s participation in a hostage situation, no prior notice or hearing was provided/required o BUT after the Segregation Review Board reviewed their segregation, and recommended their release into general prison population, the Director was under a duty of PF (content determined to be giving reasons for his intended decision and give them opportunity to be heard before him) Courts will allow the gov‘t to not follow the ‗niceties‘ of PF in cases where: o It involves prison decisions, mental health decisions, decisions that are drastic and must be made ASAP because of some kind of threat Court will pay considerable deference to the judgment as to the urgency of the situation
DOES A STATUTORY OVERRIDE APPLY?
―To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument.‖ ( Kain v. Board of Governors of UBC 1980 SCC- page 97).
e.g. in Nicholson, even though the statute said ―no hearing and no appeal rights for probationary constables‖, the majority still read in some PF CL PF cannot be incompatible with the DM scheme set up by Parliament! (see Singh) in the Immigration Act s45(4) the process set out by Parliament left no room for o CL PF — process was exhaustive
CONTENT:
―No man should be deprived of his property without being heard‖ (Cooper, UK) (early CL case) ―…where statutory bodies seek to limit property rights, the Courts will imply a right to be heard unless there is an express declaration to the contrary.‖ (Dickson J in Homex Reality 1980 SCC )
The seriousness of a decision was a key factor for imposing PF obligation (here hearing) (Cooper) (early CL case)
―Like the principles of natural justice, the concept of PF is eminently variable and its content is to be decided in the specific context of each case‖ (LHD in SCC Knight 1990) On Employment contracts: Knight is no longer good law! statutory office holders no longer treated differently (as in requiring higher level of PF) , they are to be dealt with under ordinary Contract law ( Dunsmuir)
NOTE: content of PF ranges from, mere reasons, notice and opportunity to be heard (incl. opp to make case and respond to other side), oral hearing General requirements of a duty of fairness (PF): (1) right to be heard and (2) right to an independent and impartial hearing **these requirements may be overridden by specific legislative direction** 5 factors from Baker (1999) to determine the level (content) of PF obliged: (non exhaustive list ) 1. Nature of the decision and the process followed a. How close is it to a judicial process? 2. Nature of the statutory scheme and terms of the statute pursuant to which the body operates a. Final determination scheme w/no appeal? = tips towards More PF b. Discretionary powers? 3. Importance of the decision to the individual affected 4. Legitimate expectation of the person affected 5. Must take into account and respect choices of procedures made by the agency itself and also to its institutional constraints [Discovery]: Pre-hearing
Normally done after delivery of notice but not always Is pre-hearing discovery required in the circumstances? o Where high-end rights are at stake and when the process closely resembles litigation-adversarial process (e.g. Human Rights), discovery is often required [Ontario (HR Comm.) v Ontario (Bd. Of Inquiry into NTW Gen Hospital 1993 Ont Div Crt. Allows knowledge of case against person Gives them opportunity to test/challenge part of the case against him Allows judge to make decision will all facts (better decision) Is there a statutory that can provide direct right to pre-hearing discovery? [ Northwestern General Hospital ] Does privilege apply to limit/prevent discovery being disclosed? o Litigation privilege = was info collected/created by lawyer with litigation in mind? [ Board of Inquiry into Northwestern General Hospital On Div Crt.] Content: Info necessary so person is able to participate effectively in admin process o Degree of discovery one is entitled to depends on nature of the case o
Is it like a prosecutorial type of system? Stinchcombe standard does not apply in Admin law cases [ May v Ferndale Institution SCC] BUT the underlying rationale for discovery in admin processes are similar to that in Stinchcombe [ May v Ferndale Institution SCC] o ―The individual must know the case he has to meet.‖ [Majority in May v Ferndale Institution SCC] Does it involve security claims — state secrets? Suresh; Charkaoui; Re Able
[Notice]: Pre-hearing General rule (CL or stat): admin decision maker must give notice to all those who have interest in the case and/or who may be affected by decision
Whether notice is adequate depends on context Be made known throughout the district generally so that it can reasonably be expected to come to the attention of interested persons and that they be accorded sufficient time/opportunity to fairly present their side of the case before a final decision is taken. [ McLachlin J in Re Hardy and Minister of Education BCSC 1985] Was notice reasonable? o Would reasonable person have understood it in the circumstances, notwithstanding its inadequacy? [ Re Central Ontario Coalition and Ontario Hydro O Div Crt.(non SCC)] Was notice adequate in the circumstances? o In light of the interest/right/privilege at stake Krever SCC only reputational interest was at stake thus notice (that allegations have been made against them) was not given too late (given at end of the inquiry process, 3 weeks until hearing) and it was sufficient Was wording ambiguous? [like in Chester OHC (non SCC)] o Notice given sufficiently in advance of the hearing? If using mail cannot rely on mail being received on time, can = as if notice has o not been given if no extension/variation of the date of hearing is made [ Re City of Winnipeg and Torchinsky Man QB (non SCC)] Enough info in the notice? o Does the notice est. what was at stake so you can adequately respond? [e.g. Ontario Racing Commission, ex parte Taylor OCA(non SCC)] – he lost b/c in his circumstances, he was a experienced trainer and should have known what was at stake
[Hearing]: No presumption in favour of an oral hearing for meeting PF
Whether an oral hearing is required depends on circumstances [go through Baker factors] o
SCC CASES: Nicholson – it will be up to police board to determine if they will proceed with written or oral process – either way will meet requirements for PF
o
Baker – written process was enough Singh – written process was NOT enough to meet level of PF in that case Assessment of credibility Credibility was at issue and the nature of the case was serious enough to warrant an oral hearing. However court also maintained that oral hearing will NOT always be required just because s. 7 of Charter or 2(e) of CBR is at issue; sometimes writing will be good enough Other Cases: Khan (1997 OCA) -- where a decision turns on credibility, the decisionmaker should not make an adverse finding on credibility without an oral hearing
[Right to Counsel]: General rule: right to counsel will arise from PF when you can say that such a right is necessary to give a person a reasonable opportunity to be heard in all the c ircumstances In most hearings (that are further along the end of PF spectrum), right to counsel or an agent will be assumed and statutes will often state right to counsel/representation. Does a right to counsel exist to fulfil PF duty? Consider 3 factors from NB Minister of Health v JG: o (1) What is at stake? Serious issue and impact of decision o (2) Complexity of process — complexity of process and law (3) Capacity of person affected – do they understand the process and able t o participate effectively w/o assistance of counsel? o Offsetting factors – need for speed, informality, will it impair goals? o *factors are not exhaustive! NB v JG: state funded counsel was found to be part of PF in case involving potential loss of parental rights at stake (child custody case) Thurlow J in FCA in Howard v Stony Mountain Institution (1985) = No absolute right to counsel under s7, but the right may be required to meet PF standard — to have opportunity to present case adequately Application of NB Minister of Health 3 factors o Rouleau J in FCTD in Re Parrish (1993) = o Duty to act fairly requires presence of counsel when combo of some/all elements are met: where a witness is subpoenaed , required to attend and testify under oath with a threat of penalty ; where absolute privacy is not assured and the attendance of others is not prohibited ; where reports are made public ; where an individual can be deprived of his rights or his livelihood ; or where some other irreparable harm can ensue .‘ o Ratio: even in the investigation stage, PF standard can be high IF there is a threat to reputation and livelihood (serious interest at stake), such as counsel rights, will be afforded
[Disclosure of the Case against on the Record]:
Part of the principle of natural justice, maxim ‗ audi alteram partem’
In higher end PF matters (facts, individualized, penalty, etc…), a higher level of disclosure of ―the case against‖ will be required for the respondent to adequately respond to the allegations against him/her. In a lower end discretionary, policy-driven, general/legislative, etc… decisions, there will be a lower level of disclosure required. [ Kane v Board of Governors of the UBC 1980 SCC
SCC in Kane: o
o
o
o
o
o
1. It is the duty of the courts to attribute a large measure of autonomy of decision to a tribunal pursuant to legislative mandate. 2. The tribunal must observe natural justice. To abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument. 3. A high standard of justice is required when the right to continue in one's profession or employment is at ' stake. A disciplinary suspension can have grave and permanent consequences upon a professional career. 4. The tribunal must listen fairly to both sides giving the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their views. 5. Unless expressly or by necessary implication empowered to act ex parte, an appellate authority must not hold private interviews with witnesses or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. 6. The Court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so.
Cases: Re Napoli (1981) (BCCA): high end PF duty found Right to full disclosure of medical files part Serious interests: Livelihood at risk, summaries are not enough (need full disclosure of medical files), risk of damaging reputation o Re Abel (OCA): Psych ward; how could the person at issue (patient) possibly know the case against him without knowing what‘s in the report; court held it needed to be released even though the Board was only going to make representations to the Gov in Council. Note: Board was not prohibited by statute to disclose unlike the mental health facility o Suresh (SCC): report and recommendations of IO; Suresh claims he needs report… CIBA Geigy: staff report NOT disclosed to parties – but only because they o would not be relying on it for the decision. Exception to disclosure –‘Official Notice’ DM can go beyond the record to take official notice of certain material facts/general principles/concepts/knowledge/opinions, and bear on the decisions o
Rule of Thumb: if doubt about whether one should take official notice and potentially breach the disclosure principle, the better course is to simply let the parties know – ―we are relying on ‗such and such‘ even though we didn‘t hear evidence about it… if you have a problem with that, let us know.‖
Can take notice of: o Facts so notorious that they are not in dispute o Facts capable of accurate and immediate demonstration of indisputable accuracy Can rely on own expertise and knowledge w/r to their DM o
[Cross-Examination]: The more the matter is towards a specific individual matter and the more it involves an adversarial aspect, the more you can claim court-like rights including X-examination Must claim right to cross examine as part of the opportunity to be heard and to address/rebut case alleged against you o Issue will always be has A been afforded a fair opportunity to correct/contradict (respond) the evidence against [see County of Strathcona ASCAD] Cross examination might not be the only way to achieve this [ see County of Strathcona ASCAD] Processes involving community interests at large, policy matters, policy development or elaboration, discretionary decision-making will usually not require X-examination rights. In Court like processes, PF will require cross examination rights Again, it is about where you are on the PF spectrum and the nature of the case and what is at stake at the point of the process. Are you at the fact gathering stage? o o Is a serious interest at stake? Credibility Is the process somewhat adversarial? (Etsey J in Innisfil v Vespra) (1981 SCC) o Are their live issues that must be determined? (Etsey J Innisfil v Vespra) (1981 o SCC) o Are there statutes providing cross-examination rights at a particular stage of the process? (Etsey J Innisfil v Vespra) (1981 SCC)
[Reasons]: Baker SCC: there is a duty to provide reasons in admin law in some circumstances Where there is a statutory right of appeal and DM has a serious impact on the individual, the duty of PF will require written reasons Prior to Baker, the traditional CL principle was that there was NO general duty to provide reasons in admin law
Baker (SCC):
L‘Heureux Dube in Baker: Instrumental value in reasons = where 1 st decision is not final, reasons required to o have substantive right to appeal o Reasons = better decisions b/c must justify
BUT requirement must be flexible in admin law to account for nature of DM Admin DM have huge load, more informal, cheaper and supposed to be quicker thus must be efficient = archival (judicial) reasoning not required THUS a right to reasons may not always be required When are Reasons required? (note still have to go through the Baker factors) o Where there is a statutory right of appeal and DM has a serious impact on the individual, the duty of PF will require written reasons [ Baker] o Is it a ‗danger opinion‘? Where a Minister deciding on deporting a person to former home, b/c they are deemed a danger to Canada MUST provide reasons to articulate and sustain the decision to send someone back to place where there is a risk of torture/death; appeal process is statutorily available too [ Suresh SCC ] Are the Reasons sufficient? o Do they adequately explain why the decision was made? o If there is a right to appeal can ask were the reasons sufficient to allow a CoA or JR court to understand the reasons and rule on them? o
Clifford v OMBERS (applying Baker)
Reasons must: o ID live issues in the case o Show that the ADM grappled with those issues
Evidence that favoured PF of being informed of the reasons of where he went wrong and be given an opportunity to address it: ( Nicholson 1979)
status in office deserves this kind of fairness offices = seen at CL as a kind of property interest (statutory status) no appeal process — making it even more important that review procedures exist at the front end doesn‘t get a hearing b/c in statute that was a right only held by officers serving at least 18mths of service
PF may be available at even earliest stages of the decision making process General Rule: LHD in Knight: a ―decision of a prelim nature will not in gene ral trigger the duty to act fairly.‖ Is this an Exceptional case? Look at: ( Irvine SCC)
Have you exhausted all internal admin remedies (if applic.) before going to court? (1) Nature of the decision making process: Is it multistage? If so, which stage are you at--investigative? o Recommendatory/binding decision? What is the purpose of the present stage? (2) proximity — interrelationship between this stage and the final stage (the decision) o Is the stage your at purely investigatory/fact gathering? o Or does it make determinative/binding findings that will have a great effect on the later stage of the process? (3) Nature of interest at stake & potential for harm?
Physical/reputation/credibility o How does this stage affect the interest of the individual? (4) What kind of procedure is the applicant looking for — where does this fit in? What is the procedure afforded at this particular stage? What is it at a later stage? (5) Determine whether the procedures provided, were adequate to meet duty of PF. o
Cases
Re Abel 1979 Ont. CA (pre-Charter case (note that this case would now be covered under s7 of Charter) Irvine (SCC 1987) very little PF at early fact-gathering stage owed, without making any determinations, recommendations, or binding findings of fact, no charges are being laid o BUT it was met w/right to counsel, PF did not include right to cross examine Mere exposure to the possibility of further proceedings is not enough to o trigger higher PF obligations
Was the PF duty owed (content) met? (factual question)
Remedy Corrections made w/in Admin system itself rendering JR application denied
To determine if a fair procedure has been followed, the whole admin proceeding — all the stages must be examined ( E.g. Irvine SCC ) (1) Self-correction at initial stage: in course of proceeding, can usually correct own deficiencies: o e.g. inadequate notice of the proceeding OR ‗case to be met‘ hasn‘t been given tribunal can adjourn until proper notice/fuller info has been given to cure default (2)Self-correction on reconsideration: IF tribunal has express jurisdiction (via statute) to reconsider matter, it may be able to correct own procedural error through reconsideration o note: may be doubtful whether there is a n implied reconsideration power (3) Internal review OR appeal to 2nd admin body: IF statute provides that initial admin nd nd decision can be reheard by/appealed to 2 admin DM (internal or appeal), AND in the 2 admin proceeding a fair procedure IS followed – this may remedy the denial of PF in the 1st decision Depends on ALL circumstances: o IF 2nd admin hearing/appeal is a full new hearing on the merits – like de st novo should cure any PF defects in 1 THUS a JR for breach of PF in st 1 proceeding will likely NOT succeed st nd IF 2 admin proceeding is conducted ‘on the record’ of the 1 proceeding not de novo —w/o new hearing process, where ―record‖ is arguably deficient b/c of breach of PF, 2nd proceeding likely will NOT be sufficient to correct THUS application for JR for breach of PF in 1st proceeding likely to succeed o Exhaustion principle: Courts often require applicants for JR to exhaust internal appeal OR other review remedies before seeking JR
JR is regarded as a last resort and IF an ‗adequate alternate remedy‘ is available, court will normally require person to use that remedy before seeking JR Discretionary Nature of JR Remedies: o Appellant‘s own misconduct (clean hands principle) E.g. Homex = courts refused to grant H their remedy even though a breach of PF was found, b/c of H‘s misconduct in dealing w/municipality and their attempt to evade responsibility over costs in providing services to residential lots in a sub-division o Mootness and Hypothetical Questions Courts may exercise their discretion to refuse relief in judicial review proceedings if the question is, or has become, hypothetical or moot Exception: where there is a public interest in having a court rule on an important matter, particularly if the problem complained about is likely to recur and the court is otherwise in a position to issue a decision o E.g. NB Minister of Health v JG (SCC) Court exercised discretion and heard case even though case was moot; custody hearing already gone forward and the indigent woman received pro bono counsel E.g. Howard v Stony Mountain Instit. (FCA) Case o was moot – H was already out of prison but was serious case so court looked at it (risk of losing statutory remission AND risk of solitary confinement but was denied right to counsel Prematurity – when the proceeding has yet to be completed (prior to or in midst o of) JR remedy may be refused to avoid fragmentation and protraction of admin processes o Waiver of PF rights by the person Person who has knowledge of all facts, their legal rights in the matter can waive breach of PF Waiver can be express or implied depending on circumstances A mere failure to object will NOT readily be construed as waiver though, unless party is represented by counsel and the right to object was clear Party‘s continued participation in proceeding even after an objection has been made will NOT be construed as a waiver Delay in bringing application for JR o Remedy may be denied If others would be prejudiced by allowing app to proceed (e.g. detrimental reliance on admin decision at issue; difficulties in mounting a defence to app after passage of time) Ss18.1(2) Federal Court Act : app for JR must be brought w/in 30days of the decision BUT court has discretion under this provision to extend time for bringing app S57 ATA (B.C): where it applies to a particular tribunal, app must be commenced w/in 60days of the decision BUT court can e xtend time if satisfied ―that there are serious grounds for relief, there is a reasonable explanation for the delay and no substantial prejudice or hardship will result to a person affected by the delay”
S11 Judicial Review Procedure Act (B.C): an app for JR is not barred by passage of time UNLESS an enactment otherwise provides and Court considers that substantial prejudice or hardship will result to any person affected by reason of the delay BUT this doesn‘t prevent court from exercising discretion can still exercise it to REFUSE relief on grounds of unreasonable dealy
If CL is unavailable (e.g. Statute limits/excludes/procedures are exhaustive) or where the CBR or CCRF PF may provide stronger PF or alternate argument for PF:
Still need to be an administrative decision and not legislative* Fact scenarios: immigration/refugee cases (forcibly removed), mental health cases
CBR:
S2(e) what would const itute a ―fair hearing‖ in accordance with P FJ = look at nature of rights and severity of possible consequences to determine this (Beetz J in Singh) Nature of right in Singh was extremely important THUS procedures are very o important to ensure decision is not wrongly made Oral hearings are not always necessary* o In Singh credibility was at stake (his fear of persecution) THUS needs oral hearing to determine if this was bona fide
Authorson 2003 SCC CBR case
CBR has 2 protections not in Charter s1(a) enjoyment of property and 2(e) guarantee of fair hearing according to P of FJ for the ―determination of rights and obligations‖ Failed 2(e) argument b/c: fair hearing for determination of R & O 2(e) only applies to guarantee the fundamental justice of proceedings before any o tribunal or administrative body that determines individual rights and obligations NOT Parliament! o Protection of these rights ONLY in context of courts, tribunal (or similar body) Context here was legislative enactment and non-discretionary app of law to o incontestable facts Failed 1(a) argument b/c: right to due process (notice and hearing) to protest the deprivation of his property o The decision depriving him of his property = s5.1(4) of the legislation o BUT CBR only protects rights that were present in 1960 —citizen‘s don‘t have a right to notice and hearing prior to the passage of legislation by Cabinet Parliamentary tradition = clear that the only procedure due to any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. o Re application of Legislation = CBR provides only a degree of protection of procedural due process (notice and some opportunity to contest) AND this protection is ONLY in context of adjudication of individual rights and obligations before court/tribunal No protection against non-discretionary application of law
o
There is no substantive right against the expropriation of property interest such right existed prior to 1960 via passing CLEAR unambiguous legislation, parliament CAN expropriate property interest CBR offers no due process protection right against this
no
Charter: S7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Charter protection extends to non-citizens in Canada! (Singh 1985 SCC) Utilitarian constraints about IAB is not enough to justify a process not in accordance with PFJ (Wilson J in Singh) PF under s7 of Charter at minimum includes CL PF = Fauteux CJ in Duke [1972] SCC as cited by Wilson J in Singh SCC ‗…generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, w/o bias… and must give to him the opportunity adequately to state his case.‘ o
o
S7 requires that laws that interfere with LLSOP conform to the P of FJ, these principles include a guarantee of PF, having regard to the circumstances and consequences of the intrusion on LLSOP [Suresh] S7 requires a fair process having regard to the nature of the proceedings and interests at stake [Charkaoui 2007]
PoFJ (includes PF): Before the state can detain people for significant periods of time, it must accord them a fair judicial process [Charkaoui 2007] Each of these must be met in substance (how it does varies w/context): (1) right to a hearing (2) hearing be before an independent and impartial magistrate (3) demands a decision by the magistrate on the facts and law (4) entails the right to know case put against one, and the right to answer that case Decision made on secret info where person doesn‘t have kn owledge of the case against him doesn‘t have opportunity to test and challenge the case; the judge is making a decision w/o access to all facts b/c person doesn‘t have adequate opportunity to put other facts t issue = UNFAIR process [Charkaoui 2007]
PF is contextualized – may demand diff things in diff contexts (Wilson J in Singh) When s7 is triggered and involves admin DM and procedures Use CL Baker factors to determine level of PF to then determine P of FJ [ as done by SCC in Suresh] o
**Security concerns cannot be used to excuse procedures that do not conform to FJ at s7 stage of analysis; balance of interests at s1 analysis!
Triggers: o
o
―LIBERTY’ = broader than physical constraint, may incl. ―personal autonomy & fundamental life choices‖; fundamental things affecting person's personal decisions ( Blencoe, SCC 2000) o
[SoP; Liberty] Deportation to place where they face substantial risk of torture, possible threats [Singh , Suresh] Detention on grounds of security [Charkaoui] [SoP] Status of parent raising a chid in home is triggered by this ( NB v JG 1999 SC) Parent stigmatized as unfit when custody is taken away, the severance of parent‘s ability to raise child likely to cause psychological harm and severe stress to average parent Serious state imposed psychological (and physical) stress [ Morgentaler; Blencoe; NB v JG]
does not include protecting dignity and reputation interests (Bastarache J in Blencoe)
= protects both physical and psychological integrity of the individual ( Morgentaler 1988) o BUT not all State interference with an individual‘s psych integrity will engage s. 7. Does not protect dignity and reputation interests (Bastarache J in Blencoe) Where psych integrity of a person is at issue, SOP is restricted to ―serious state-imposed pscyh stress ‖ (Dickson CJ and Lamer in Morgentaler 1988) (followed by Blencoe, NB vJG) focus is on bodily integrity and state interference with regards to the control of a person‘s body this is when s7 is triggered Involves right to be free from serious state-imposed psychological & physical stress ( Blencoe) Need to make out (1) sufficient causation by state of the harm and (2) o seriousness of interference Stigma when HR complaint is lodged will not be sufficient to create ―state caused harm‖ (as evidenced in Blencoe) ―in order for security of the person to be triggered in this case, the impugned state action must have had a serious and profound effect on the respondent‘s psychological i ntegrity.‖ (Bastarache J in Blencoe) Effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility ( Blencoe) o This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. o May include right to state funded counsel [ NB v JG] “SECURITY OF PERSON”
MUST satisfy 3 factors: Seriousness of interest at stake and issues and impact of decision Complexity of the proceedings in terms of the process and the law Capacity of the appellant/person affected by the proceedings Balance 3 factors on ‗case by case basis‘ ―Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent.‖ [ NB v JG] When government action triggers a hearing in which the interests protected by s. 7 are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair. In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel. (Lamer CJ in NB v JG] REMEDY: Under s24(1) of Charter court has power to order Gov‘t to provide parent with state funded counsel If situation involves child custody, are facts like NB v JG ? If s7 is violated, Can it be saved by s1? Are the procedures proportional? o o Did it minimally impair the rights? o Are there less intrusive measures? Could special counsel be used to still maintain critical info confidential? o Balance of interests between state and appellant‘s rights under PFJ? If security concerns are present were there no less intrusive measure that was feasible? o Note: s7 violations are not easily saved by s1 s7 rights are very significant; can‘t ordinarily be overridden by competing social interests; rare for violation of P of FJ esp. right to fair hearing be upheld as a reasonable limit justified in a free and democratic society
SUBSTANTIVE FAIRNESS LED Mount Sinai (2001 SCC) ( Binni J ( McLachlin CJ concurring)) LED is unavailable for substantive remedies in Canada! We do not follow the UK approach.
REMEDIES:
Is there a delay? CL admin remedies available to stay proceedings IF proof of significant o prejudice from an unacceptable delay ( Blencoe) Actual or delay amounting to abuse of process (see page 59 of notes)
o
Delay may amount to an abuse of process, even where the fairness of the hearing itself has not been compromised, if the delay is (1) inordinate (unjustified) & unreasonable and (2) caused serious psych harm/stigma to reputation and (3) delay would bring the HR system into disrepute Remedy for abuse of process arising from delay will be RARE! (majority in Blencoe)
