LAW210: Administrative Law Professor Christie Ford Fall 2006 CAN: Case Briefs Nonet, Administrative Justice (1969)

@ 1054...............................................................................................................................1 Davis, Discretionary Justice (1969) @ 1058.................................................................................................................................1 Jo e!!, "a and #ureaucracy (19$5) @ 1064...............................................................................................................................% &rai', Administrative "a (1999) @ 10$0....................................................................................................................................% (ossin, )*e +o!itics o, Discretion (199-) @ 10$-.........................................................................................................................% .a!!i'an, Discretionary +o ers (1986) @ 108-...........................................................................................................................% MAJORITY (SOPINKA): DECISION IS REVIEWABLE TO THE EXTENT THAT THE DECISION IS INTRA VIRES. CITY ONLY HAS JURISDICTION TO DO THINGS FOR A "PROPER PURPOSE". APPEARS TO USE CORRECTNESS STANDARD: ESSENTIALLY DECIDING WHETHER CITY HAD JURISDICTION TO MAKE DECISION. READS PURPOSE NARROWLY: CITY ONLY ALLOWED TO OPERATE WITHIN LOCAL PURPOSE NO CXN B T SA ! HEALTH AND WELFARE OF VANCOUVER CITI"ENS. LACK OF RATIONALITY IN DECISION AS CITY WASN#T BOYCOTTING ALL GAS COMPANIES INVOLVED W SA$ ONLY SHELL........................................%& Introdu tion to Administrative Law !heoreti al A""roa hes to Admin Law #e ision$%a&in' Nonet( Administrative Justice )1*6*+ , 10-. Describes historical tug-of-war b/t o ar hite ts of the welfare state: administrative discretions should deal forcefully with social problems, and o riti s of the welfare state: law as vehicle for confining government overreaching. Dichotomy has impoverished role of law in administration - law (i.e. rules) becomes an external restraint imposed by courts on government. Law/legal procedure ( structure of opportunities for participation and criticism re official public policy!) should contribute positively to government, further public purposes, improve e"ercise of administrative discretion. #avis( Discretionary Justice )1*6*+ , 10-/ #ries to $D sweet spot! b/t legal rules allowing too much discretion % rules not allowing enough. Law0ers should stru ture dis retion with 1ules: #ypical failure in our system that is correctible is not legislative delegation of broad discretionary power with vague standards& it is the procrastination of administrators in resorting to the rulema'ing power to replace vagueness with clarity .! %ethods of Controllin' #is retion o 2tru turin' #is retion: establishing boundaries for discretion o Che &in' #is retion: review of e"ercise of discretionary power 2i3 reasons wh0 rulema&in' is su"erior to ad(udicative procedure for ma'ing policy affecting large groups of people ). *ll who may be interested are systematically notified +. #entative rules are published % written comments received before final rules adopted ,. -ulema'ing procedure which allows all interested parties to participate is democratic procedure .. *dministrator who engages in rulema'ing is free to consult informally with anyone /. -etroactive lawma'ing through ad(udication may be sufficiently unfair that administrators should try to avoid it by choosing proactive rulema'ing 0. 1upervision of rulema'ing procedures is more effective than trying to influence administrative lawma'ing through ad(udication 2even instruments most useful for stru turin' )not onfinin'+ dis retion : 2oal is to find out which ones wor' best for structuring each 'ind of discretionary power. 3mphasis on openness: sunlight as the best disinfectant.

). 4"en Plans: *dministrators should turn their mind to the long-term agency goals in the e"ercise of their discretionary power +. 4"en Poli 0 2tatements: *gency should publici4e their policies so that the public 'nows what the *gency considers important 56 4"en 1ules .6 4"en Findin's -6 4"en 1easons 0. 4"en Pre edents: 5onsistency is 'ey. *gencies should balance the need for consistency versus the need for e6uality % evaluating cases on their facts. 76 Fair Informal Pro edure 8owell( Law and Bureaucracy )1*7-+ , 106. 1ules (binding policies) versus Ad9udi ation (case-by-case determination) versus ase$:0$ ase dis retionar0 determination (no rules, no (udicial panopoly) #efe ts of rules: rigidity % legalism (bureaupathic regime catches 7technical violators7) Ad9udi ation: $nstitutionally guaranteed participation which enhances accountability % provides chec' on arbitrariness: ()) impartial ad(udicator, (+) procedural rights, (,) published reasoning. $ncremental structuring of discretion. o #efe ts of Ad9udi ation: 8rocedural rights do not guarantee substantive rights. 9ero-sum game. Less publicly available - harder to generali4e from individual cases, and reduces public:s ability to determine the agency:s direction. ;hat is gained in uniformity may be lost in flexibility -ules to prevent the arbitrary may encourage the legalistic 5ase-by-case ad(udication may prevent comprehensive planning -ules which may shield bureaucracy from pressures and allow the efficient and speedy dispatch of cases, may offend the client who desires individually tailored (ustice. Crai'( Administrative Law )1***+ , 1070 <rgani4ational theory approach (agencies within society) 1ystems theory = loo's at structural % social influences, assumes comple"ity = considers inputs, process, outputs. #hree implications: o !ooth"aste !u:e !heor0: >a'ing something more rule-based! can create problems of displacement - you (ust shift the discretion elsewhere o $nternal organi4ational structures can affect policy o $nternal structure should reflect purposes to be served by agency. 2ossin( The Politics of Discretion )1**5+ , 1075 #he 'ey to revitali4ing the welfare state and transforming its citi4enry lies w/in administrative discretion Draws on ?@rgen AabermasB theories that non-coercive participation produces the most engaged citi4enry % legitimi4ation of state:s activities o #he 6uestion should be what participatory process went into the e"ercise of that administrative discretion. o * good rule is one where everyone participated in the ma'ing of that rule - not necessarily whether the rule can be ob(ectively (ustified. ;alli'an( Discretionary Powers )1*/6+ , 10/5 2enerally li'es discretion. Decisionma'ers should figure out best way of ma'ing decisions Court<s role: to structure discretion using two basic principles: o *dministrative authorities must think about the decision strategy to be followed, % o *dministrative authorities must make public their conclusions % reasons for them. #his enhances rationality, reduces arbitrariness. 5ourts are good at this stuff = this is within their e"pertise. 5ourts should focus on administrative agenciesB use and understanding of standards, reasons % consistency.

Pro edural 1i'hts #eterminin' !hreshold for Pro edural Fairness Baker v. Canada (Immi ration! )1***+ 2CC Fa ts: C applies for A%5 e"emption to stay in 5anada. Denied w/o reasons. Fa tors in favour of rela3ed "ro edural ri'hts: A%5 decision different from (udicial decision - lots of discretion and consideration of multiple factors. A%5 also e"ception to general principles of 5dn immigration law. 5onsiderable ministerial discretion w/in statute. 2eneral agency procedure is to not conduct interviews. Fa tors in favour of stri ter "ro edural ri'hts: Do appeal procedure. Decision has huge impact on lives of affected individuals. Issue: ;hat is the threshold for procedural fairnessE =oldin': Lac' of oral hearing not 8F violation - written submissions sufficed - C had help of lawyer in submitting documents - 7full and fair consideration of all the issues7. Dotes ta'en to be reasons - notes disclosed reasonable apprehension of bias - e"ercise of A%5 discretion was unreasonable as it failed to give serious weight to children:s interests - decision sent bac' for redetermination. Note that now dis retionar0 de isions are reviewed on "atent unreasona:leness standard )"uresh+6 #issent: disagrees as to effect of int:l law on ministerial discretion (no effect b/c not incorporated). #icholson v. Police Commissioners Fa ts: D discharged as police constable after )/ mths w/o given opportunity to ma'e submissions. <ral hearing only if D had wor'ed )G mthsH. D is officeholder-at-pleasure - deserves to be treated fairly % not arbitrarily - not full D?, but some 8F. D gets hearing. #issent: <fficeholder at pleasure gets no 8F. 1ule: 2ets rid of old (udicial-administrative spectrum. $nstead, e"amine the conse6uences to the individual in determining content of the duty of fairness. $ni ht v. Indian %ead "chool Division #o. &' >1**0? 2CC Fa ts: I dismissed by Coard of 3d - wants to renew for + years - Coard only wants ) year - I sues Coard for wrongful dismissal. I claims 8F violated b/c no oral hearing. =oldin': I entitled to reasons for dismissal % opportunity to be heard - but I got 8F b/c his lawyer 'new of dismissal reasons via negotiations, therefore no oral hearing needed. 1tatute % employment contract did not e"plicitly abrogate 8F duty. #issent: I was officeholder-at-pleasure, therefore no 8F unless provided for by statute or contract. Le'islative vs Administrative #e isions %ome( )ealty >1*/0? 2CC Fa ts: >unicipality passes bylaw aimed at Aome" which re6uires them to service new subdivision development. Aome" claims 8F violation b/c no notice or opportunity to be heard. #issent >the rule?: ;here bylaws directly affect real property, implied 5L right to be heard. Distinguishes b/t legislative % administrative actions. ;hile bylaws normally legislative, this bylaw was administrative b/c it was aimed at a specific individual rather than a large group of people. Legislatures have power to pass bylaws in name of public interest, but must do so in accordance with 8F if people are affected by decision. Aome" should:ve been given public hearing b/c bylaw affected real property. %a9orit0: Cefore gov:t body ma'es a decision which affects people, they must give those people an opportunity to be heard. Canadian Association of )e ulated Im*orters v. Canada (A+! 1**5 FedCA Fa ts: Aistoric importers of hatching eggs % chic's claim 8F violation b/c of lac' of ade6uate consultation on ministerial changes to 6uota system. =oldin': Juota 8olicies are ministerial policy/legislative decisions, therefore no 8F duty (but note that 8F duty may apply if individual decision re: grants of quotas). Do legislative intent for public consultation process re 6uotas.

!he Nature of the 1i'ht Affe ted )1i'hts vs Interests+ Cardinal 8risoners: rights case. 8rocedural fairness applies to both rights and interests. )e ,e-- and .ntario %ousin Cor*oration )1*7/+ 4ntCA Fa ts: ;ebb is illiterate welfare recipient who is evicted from public housing after son vandali4es property. *rgues 8F violation due to lac' of hearing. 1ule: Do stat entitlement to obtain/remain in public housing, but stat entitlement to welfare. 8rocedural fairness applies e6ually to disadvantaged, even if they do not have real property rights. Interests get no PF - only rights get PF Cut vested interests get 8F (overturned by %utfield) =oldin': ;ebb had vested interest in public housing, as she was already a tenant. #herefore Coard owed her 8F before termination: ()) notice of case and (+) opportunity to be heard. Finds that ;ebb had notice % was given opportunity to respond, but didn:t (;ebb received , letters % had casewor'er)). Do formal notice re6uired. ;ebb evicted. %utfield v. Bd of /ort "askatchewan +eneral %os*ital District #o. '0 )1*/6+ Alta@B Fa ts: A applies for hospital license - approved by 5ollege - refused by Coard - A reapplies % is refused. A claims 8F violation b/c no reasons % no opportunity to respond. 1ule: Do 8F duty when applying for license unless special considerations (i.e. real property or L3). Discards ,e-- 7vested interest7 distinction. o 5rown protects both rights % interests o Do distinction b/t modification of interest/right vs allocation of interest/right 1tatutory duty to investigate K duty to provide reasons $f potential 7slur7 in being re(ected for license, * must have opportunity to be heard. =oldin': Do duty to grant A license, but A still owed 8F because of potential 7slur7. Autfield:s interests affected sufficiently directly and substantially that he was owed 8F. Do reasons % no opportunity to be heard K reconsideration. Interim or Preliminar0 #e isions )e A-el and Advisory )eview Board )1*7*+ 4ntCA Fa ts: *:s only chance of getting out of mental hospital was based on Coard recommendation to Legislature. Coard not sub(ect to ?-. * gets almost-D? at Coard hearing, but also wants disclosure of psych reports. 1ule: 8F duty applies e6ually to interim decisions as well as final decisions, where interim decision is essentially *:s only hope for release. Cut content of duty is affected by ()) pro"imity b/t interim % final decisions and (+) e"posure of * to harm. Dotice of case full disclosure, but Coard needs to at least consider re6uest for disclosure. Dairy Producers1 Coo* v. "ask (%uman )i hts Commission! >1**.? 2as&@B Fa ts: D85 hit with se"ual harassment complaint - A-5-appointed hearing officer investigates complaint, who ma'es report to A-5 that Coard of $n6uiry should be formed. D85 re6uests complaint disclosure during investigation, but denied. Cefore Coard appointment, D85 tries settlement % re6uests and receives full disclosure. 1ettlement fails and Coard established. D85 claims 8F violation due to lac' of notice. 1ule: 8F re6uires that applicant ()) receive notice of substance of case against him and (+) given opportunity to respond. Cut re6:t only applies to (a) determinative stages where (b) 8F duty e"ists. =oldin': A< didn:t have power of final determination, nor was settlement determinative. #herefore no 8F duty at initial stages b/c neither made difference to final Coard decision - and even if there was a 8F duty, D85 was only entitled to receive substance of complaint, not full disclosure. 5ourt found that D85 received full disclosure during settlement anyway. Irvine v Canada ()estrictive Trade Practices Commission! >1*/7? 2CC

Fa ts: $rvine investigated for unlawful trade practices in ,-stage process: ()) in6uiry by Aearing <fficer, who sends report to (+) 5ommission, who decides whether public in6uiry will be held which (,) recommends to , >inisters whether you should prosecuted for unlawful trade practices. $rvine claims 8F violation due to lac' of 8F by hearing officer. 2ta'e 1 A Information$;atherin': Director, via Aearing <fficer, ma'es no decisions as to final determination. <nly gathers facts for consideration by >inister 2ta'e 2 A Information$Pro essin': 5ommission processes info gleaned by Director. 5ommission can ma'e recommendation to >inister as to whether or not to prosecute. Deither Director nor 5ommission can prosecute a company for unfair trade practices 1ule: 2reater 8F rights at later stages will offset any hardship suffered by lesser 8F rights at earlier stages. Do not unduly burden law enforcement with (udicial processes. =oldin': Do public reputation ris' suffered at earlier stage b/c no mandatory publication of decision. <'ay for counsel to be present in absence of client. 1tage ) % + are not final. Le'itimate B3"e tations )eference re Canada Assistance Plan >1**1? 2CC Fa ts: 8rovinces claim 8F violation when Feds failed to consult w/ them before limiting transfer payments (L3 in consultation process). 1ule: Doctrine of Legitimate 3"pectations does not apply to 6uestions of pure policy. 8arliament is not bound by legitimate e"pectations. Further, L3 substantive rights. *t most, provinces would have had right to be consulted before transfer payments discontinued, but had no right to have those payments actually continue. 2ount "inai %os*ital v. 3ue-ec >2001? 2CC Fa ts: Aospital ma'es deal with >inister that if they move neighborhoods, they:ll get a proper license. Aospital moves, and new >inister reneges on promise. 1ule: Distinction b/t 7procedural fairness7 % 7legitimate e"pectations7. 8F driven by nature of interest, nature of statutory power, etc. DL3 driven by conduct of the public authority. o Limited to procedural relief - no right to substantive relief based on L3 o * need not actually show they had L3 - it:s simply not honourable for 5rown to renege on promises or longstanding practices which may cause potential in(ury =oldin': A had right to be heard, but no actual right to license. A wins 8F grounds, but loses L3 argument. Content of #ut0 of Pro edural Fairness )a-in4 5 )elationshi* -6t /undamental 7alues 8 Procedural "afe uards5 2ummar0: Discusses +old-er v. $elly: if sb is going to lose welfare entitlement benefits, they are entitled to full D?. Cut since +old-er 4 courts have been moving away from trial-type hearings in favour of admin tribunals: )) 5osts of trial are e"cessive +) *dversarial trials not universally applicable to all settings: loo' at whether ()) evaluation of conduct vs (+) determination of misconduct (i.e. failed driver:s license test vs criminal charge) ,) #rials not suitable for comparing different individual interests versus efficiency interests of government. 8ohnson( The C)TC Commission )1*/0+ 5-#5 holds informal debate-style public hearings for new applications. 5ommission as's the 6uestions *ll parties ma'e written submissions and oral presentations and replies 3vidence is not sworn Do cross-e"amination 8ower to order pre-hearing conferences where most issues are wor'ed out in trial-type setting - then parties let loose in public debate-style hearing. Advanta'es 2ood for broad policy-type hearings.

 2ood for public participation Faster than a trial - 5-#5 can hear more applications this way #isadvanta'es: ;hen there are real contests b/t parties and positions are clearly adversarial, they should routinely have the right to cross-e"amination. #his will allow parties to fully present their cases and test each other:s evidence. #is losure A'en 0 has information on the individual( and the individual wants it dis losed )e #a*oli and ,CB )1*/1+ BCCA Fa ts: Dapoli in(ured % applies to ;5C - given . page file summary - found /L disabled - appeal to Coard of -eview refused - appeals to 5ommissioners % see's full disclosure - 5 tells D he:ll lose, but gives him )0 page summary of file. =oldin': 1ummaries were inade6uate disclosure b/c neither $Ded contributing e"perts nor grounds for report. D should:ve had full disclosure of file and opportunity to cross e"perts who made allegations against him. 1ule: ;hen dealing w/ serious % damaging allegations, * has right to cross-e"amine authors of allegations % full disclosure of allegations, sub(ect to any evidentiary privilege. Disclosure will impose level of accountability. ;here decision will have high impact on your life, you are entitled to more procedural fairness. A'en 0 has info on indvCl from some 5rd "art0 D indvCl wants identit0 of 5rd "art0 dis losed +allant v. Canada (De*uty Commission4 Correctional "ervice Canada! )1*/*+ FCA Fa ts: 2allant wants names of informers who caused his prison transfer. =oldin': 2allant not entitled to names of informers where it would cause them to be in danger. 8ratte ?* uses 5harter analysis as he feels that D? % 8F are 5L rules which are more fle"ible than s.M right to 8F?. Finds that 2allant:s s.M right to liberty was not violated in accordance with 8F? b/c he didn:t get proper notice of identities of informers. Cut violation is saved by s.) because it is reasonable % necessary to confer discretion on prison employees. >arceau ?* (concurring in result) uses administrative analysis - prison administrator made correct decision. Distinction b/t ordering disclosure of informers: identities when imposing sentence and when ensuring orderliness of current inmates. #issent: ;hen confidential info is being relied upon by prison authorities, record should disclose some basis for authorities: belief in reliability of info. $nsufficient reliability. A'en 0 has info on :usiness D other :usinesses want that info dis losed Anti9Dum*in Act 5onfidential info should not be made public so that that it will be available to competitors. 2a nasonic Canada v. Anti9Dum*in Tri-unal >1*72? FedCA 1ule: #o ensure that confidential info heard during tribunal hearing is not made public to competitors, it should be ta'en in camera. <ther steps will depend on circumstances % may include actively e"cluding competitors during evidence, so long as report is provided afterwards which summari4es the gist of the evidence. 2la0ton4 The Anti9Dum*in Tri-unal )1*7*+ Law 1eform Commission of Canada 2tud0 1ule: 5onfidential documents are made available to counsel only % not to parties. 5ounsel must give underta'ings not to reveal info to their clients. Do" must be returned after hearing. 3"pert advisors can have access to do" so long as parties consent % an underta'ing is provided. Canadian International Trade Tri-unal Act 8ublic servants must promise not to disclose confidential info although they can disclose edited versions or nonconfidential summaries produced by staff. #ribunal can disclose confidential info to counsel or parties: e"perts, for sole use during proceedings sub(ect to any conditions imposed by tribunal. C)TC )e ulations

Documents presumed to be public in hearings unless party ma'es confidentiality application. 8arties must ma'e written submissions to 5-#5, setting out direct harm that would occur as a result of disclosure. Direct harm balanced with interests of public disclosure. 5-#5 can order ()) non-disclosure, (+) disclosure, (,) disclosure in-camera, (.) disclosure of summaries Administrative Tri-unals Act4 s.&&4 :&4 :; s.&&< 2eneral power of tribunals to ma'e rules on practice % procedure, incl. ()) pre-hearing conferences, (+) e"clusion of witnesses from proceedings and (,) restricting access to tribunal documents by any person. s.:&< <penness of hearings to the public s.:&(&!: Aearings must be open to the public s.:&(;!: Aowever, tribunal can decide to hold hearing in-camera % e"clude the public ()) where the interests against disclosure outweigh the interests of public disclosure, or (+) where it is not practicable to hold hearing open to public s.:;< #ribunal has discretion to receive evidence in confidence if it is of the opinion that the nature of the opinion re6uires that confidence to ensure the proper administration of (ustice A'en 0 staff re"orts whi h indvCl wants dis losed Franson( Access to Information< Inde*endent Administrative A encies )1*7*+ 1ule: Distinguish between factual portions and staff advice. Fa tual "ortions should :e 'enerall0 made availa:le, but not staff advice. -eports produced by tribunal staff giving bac'ground info relevant to hearing are meant for staff use only (no public consumption). 1easons wh0 staff re"orts should :e dis losed 1o parties can ade6uately prepare their case 1o info can be disclosed in the public interest - 8ublic may be affected by staff reports #o assess performance of agency 8ublic is entitled to have much of info contained in reports b/c it affects the public 1easons wh0 staff re"orts should not :e dis losed ;ould undermine >inisterial responsibility o Cut agencies are supposed to be independent from the >inistry Disclosure would serve to politici4e the public service o Cut agencies should be held accountable for their action and inaction Disclosure would result in inefficiency o Cut this could be mitigated by e"emptions to not disclosing all drafts Disclosure would result in less candour o Cut this would simply hold staff accountable. ATA4 s.=&< *pplication of /.IP.P Nou can:t F<$8<8 personal notes, notes of dispute resolution mediators, info received by tribunal in nonpublic hearing, transcriptions/recordings of non-public hearings, documents submitted in hearing which are separately provided for public access, decision of tribunal for public access % personal info over )OO years old. Note that s.=& does not e3 lude staff re"orts from F4IP4P Ber'er( E!he %a &enFie Galle0 Pi"eline InHuir0E Fa ts: 5oncern that staffer was e"ercising far more control over the $n6uiry than was allowed. 1ule: $n6uiry staff recommendations must be presented to 5ommission during formal hearings, so that staff recommendations are on the public record. 1easons 7IA )ail Canada Inc. v. #ational Trans*ortation A ency >2001? FedCA

Fa ts: ;heelchair b-ball team boards train w/ attendants - P- tariff 7re6uires7 attendant be capable of de/boarding disabled person - D#* investigates complaints % issues + decisions. N!A #e ision I1 >1**.?: <bligation imposed on the attendant to de/board a disabled person constitutes an obstacle. N!A #e ision I2 >1**-?: #ariff which re6uires attendant to be capable of de/boarding the disabled person is an undue obstacle to the mobility of a disabled person. 1ule: -easons for reasons % characteristics of ade6uate reasons. =oldin': D#* 2eneral -ules impose duty to give reasons. D#* failed to provide specific enough reasons so that Pcould understand what they had to improve on - did not define 7undue7 and 7obstacle7. P- wins % remits matter. Institutional #e isionma&in' A'en 0 Consultation Intl ,oodworkers of America v. Consolidated9Bathurst Packa in Ltd )1*/5+ 2CC Fa ts: #ripartite panel must decide whether to change rule re disclosure of closing plants. *fter hearing evidence, panel calls Full Coard >eeting to discuss whether rule should be changed. Do minutes/attendance 'ept % no evidence introduced. Qnion wins. 3mployer argues that panel made improper decision if evidence discussed at FC> or if opinions of other members considered. Issue: Did FC> violate right to procedural fairnessE =oldin': Do 8F violation, as no evidence of coercion, and appeared that only policy discussed. 1ule: Decisionma'ers can consult with fellow agency members on policy issues only so long as there is no evidence of coercion (i.e. votes or minutes), in order to ensure consistency % gain access to full e"perience of Coard. Do new evidence can be introduced at FC> - facts accepted as presented. #he relevant issue is not whether consultation causes decisionma'ers to change their mind, but whether consultation forces decisionma'ers to conform to institutional pressure. #issent: 8olicy should be treated li'e fact, so that parties can ma'e submissions to both policies % facts. Qniformity is laudable goal, but doesn:t trump 8F rules. <nus should:ve been on board to show lac' of pre(udice. Trem-lay v. 3ue-ec (Commission des affaires sociales! >1**2? 2CC Fa ts: # ma'es written appeal to +-person 8anel on 6uestion of law (bandages covered by welfareE). 8anel:s draft decision is in favour of # - agency lawyer on vacation, so decision sent to 8resident - 8re4 disagrees % sends decision to consensus table (either 8re4 or panel could send to 5#) - panel rewrites decision with ) member now dissenting 8re4 casts deciding vote against #. =oldin': 5ommission procedures gave rise to reasonable apprehension of bias as compulsory consultation created appearance of lac' of independence (minutes, adversarial process, vote ta'en). 1ystemic pressure for panellists to submit to previous decisions of 5ommission, therefore panellists not 7final7 decisionma'ers. 8resident:s role in breach of D? as he e"pressed opinion % invited panellists to reconsider. 1ule: 1ystemic pressure from other members placed upon decisionma'ers can breach D? by creating appearance of lac' of independence % bias. 1ulema&in' Immi ration and )efu ee Board #ews )elease )%ar h 1**5+ Fa ts: $-C implements guidelines for greater consistency % decisionma'ing - >inister ma'es public statement that guidelines must be followed by decisionma'ers, unless evidence shows 7compelling or e"ceptional reasons for adopting different analysis7. $f panel decides not to follow guidelines, they must issue reasons as to their refusal. Issue: Do guidelines infringe on decisionma'er:s independenceE ;hat gives these guidelines legitimacy if they:re drafted by agency % not 8arliamentE 8ublic consultation #ransparency Cac'ground e"pertise research /inal )e*ort of .nt Task /orce on "ecurities )e 4 5)es*onsi-ility 8 )es*onsiveness5 )1**.+ Ba &'round: Ainsley brought to light 7binding policy statements7 of <ntario 1ecurities 5ommission, despite lac' of statutory authority to enact such rules.

1ule: 3stablishes a Dotice-and-5omment procedure similar to the Q1 model 8roposed rule sent out to the public 5omments collected by agency *gency produces reasons considering comments Cac'ground information must be provided to public, so that engagement is meaningful 8ublic forum held after rule was promulgated $f significant change b/t initial proposal and later proposal, new D%5 8ublic hearings would not be used on a regular basis - primarily written submissions ;aiver of Dotice-and-5omment allowed in e"ceptional circumstances <utside of the securities commissions, rulema'ing is much more la" (absent any statutory consultation re6uirements). #ribunals can consult with who they want (if at all). Bias D La & of Inde"enden e Attitudinal Bias Payne v. >niversity of Toronto )1*/0+ 4nt#ivCt )1*/1+ 4ntCA Fa ts: 8 is fine arts asst prof who applies for tenure - given list of ppl on tenure cte, and as'ed if any ob(ections (none) - one cte member resigns % is replaced by colleague who had previously said that 8 shouldn:t get tenure. 8 had no chance to ob(ect to new cte member. 8 re(ected for tenure /-O. 8 claims 8F violation due to attitudinal bias. 4nt#ivCt =oldin': 8 wins - unfair that chair appointed new cte member when chair had prior 'nowledge of member:s negative view. *ppeal was not de novo, therefore no 8F because no new hearing. Aearing by peers is o'ay so long as it is fair. 4ntCA =oldin': 8 loses - no improper bias. #enure cte tribunal. 5te entitled to use personal 'nowledge % e"perience w/ 8 - everyone would:ve had opinion, so it doesn:t matter whether they e"pressed it beforehand. 1ule: #enure 5ommittee is not e6uivalent to tribunal acting only on evidence before it. 5te entitled to use personal 'nowledge % e"perience in coming to a decision. *cademics will be familiar with fellow colleagues % are ta'en to have an opinion on their tenure, so it doesn:t matter whether they e"pressed an opinion beforehand. !ome threshold of bias below which courts will not intervene - i e internal university disputes. +reat Atlantic 8 Pacific Co.v. .nt (%uman )i hts Commission! )1**5+ 4nt#ivCt Fa ts: 5onstance Cac'house (<sgoode Aall law prof) involved as complainant against <A alleging systemic se" discrimination. 5C then appointed as Auman -ights 5ommisssioner - becomes involved in 2reat *%8 case on systemic se" discrimination. 5C re6uests that name be withdrawn from list of <A complainants. 2reat *%8 claim 8F violation b/c attitudinal bias due to 5ommissioner being formerly involved as complainant. =oldin': 5C was previous complainant on same issue, so reasonable apprehension of bias. 8roceedings 6uashed >inister allowed to appoint another Coard to ad(udicate if desired. 1ule: Ceing an advocate does not constitute bias. Cut, being a complainant before the same tribunal on the same issue does raise a reasonable apprehension of bias Lar e v. "tratford (City! )1**2+ 4nt#ivCt 1ule: #o e"clude everyone who ever e"pressed a view on human rights issues would e"clude those best 6ualified to ad(udicate fairly and 'nowledgeably in a sensitive area of public policy. 2tatutor0 AuthoriFation of Bias Brousseau v. Al-erta ("ecurities Commission! >1*/*? 2CC Fa ts: >inister as's 5hair to instruct 1taff to conduct investigation on Crousseau. 1taff review files % issue report to 5hair. Dotice of Aearing issued against Crousseau for filing false statements. 5hair then sits on panel which (udges Crousseau. 1tatute holds that 5hair K 53<, and 5ommission has authority to carry out full-scale investigations if ordered by full 5ommission. 2e urities Commission (incl. 5hair): policyma'ing % ad(udicative role. 5ommission meant to be arms-length from staff, and oversee processes 2C 2taff: prosecutions, enforcement, compliance reviews. 1taff can issue subpoenas.

Issue: ;as there a reasonable apprenhension of bias as a result of the chair:s prior involvement in ()) instructing staff to conduct investigation, (+) reviewing staff report, and (,) (udging C as part of panelE 1ule: 1tatutory *uthori4ation of Cias permitted. #here is a reasonable apprehension of bias where the decisionma'er e"ceeds his statutory authority. Loo' at ()) tribunal:s uni6ue characteristics, (+) tribunal:s role in system, and (,) legislative intent in determining whether statutory authori4ation of bias e"ists. =oldin': Do evidence that full commission never ordered investigation. 5hair had implied authority to order informal investigations. Do -*C b/c no evidence that 5hair e"ceeded his statutory authority. CommissionCs uniHue hara teristi s: -epeated dealings with certain parties. ;ide range of duties from prosecution to enforcement to policy. Prote tive 1ole: 15s get special treatment by courts b/c they protect investors Le'islative Intent: 5ourt finds clear legislative intent that 5ommission court. Factors which might otherwise signify bias are instead integral part of 5ommission:s operations. ?.A. 2annin Ltd. v. .ntario "ecurities Commission )1**.+ 4ntCA Fa ts: <15 drafts staff report which discusses complaints against penny stoc' dealers. <15 issues 8olicy 1tatements which says that penny dealers are bad % names >anning % *insley. 8olicy 1tatement later struc' down by Ainsley decision as <15 had no statutory authority to ma'e binding 8olicy 1tatements. >anning claims 8F violation b/c of bias due to earlier policy statement - argues that no hearing can ever be held. 4nt#ivCt =oldin': <15 pre(udged case before Dotices of Aearing. *ny pre-DecR, 5ommissioner had -*C % could not sit on panel. <'ay for staff to investigate % decide penny stoc' dealing was bad - not o'ay for staff to issue binding 8olicy 1tatements. Brousseau distinguished as <15 never had statutory authority to issue biased binding 8olicy 1tatement. 4ntCA =oldin': *ffirms most of <ntDiv5t holding. Do 5orporate #aint: any pre-DecR, 5ommissioner tainted by -*C, but anyone appointed after DecR, was o'ay. 8resumption of $mpartiality and Fairness: Dew commissioners allowed to sit on panel. Do corporate taint bias is attitude of mind uni6ue to individual (note later cases which sort of overturn this). ;@:@9A&@: 3ue-ec Inc. v. 3ue-ec ()e ie des *ermis d1alcool! Fa ts: -egie revo'es company:s li6uor permits. 5ompany argues that -egie:s multiple functions violates Juebec 5harter, s.+, re6:t that tribunal be both 7independent % impartial7. 1ule: $nstitutional Cias test loo's at 7substantial number of cases7. ;here statute does not e"plicitly prohibit or allow the same lawyer/Director to investigate, prosecute % draft reasons, the tribunal must put in place procedural safeguards to ensure that the same person does not wear multiple hats - prevents -*C. =oldin': -egie must change internal operations to ensure that same person doesn:t wear multiple, conflicting hats. 1tatute lives on, as it doesn:t inherently violate Juebec 5harter. 2acBain v. Canada (%uman )i hts Commission! )1*/-+ FCA Issue: 5an statutory authori4ation of bias be abrogated by the Cill of -ights if your 7obligations7 are being determinedE Fa ts: >cCain claims 8F violation due to bias in A-5 statutory structure - 5ommission investigates, prosecutes complaint for hearing % appoints #ribunal to hear complaint. =oldin': Cias found as prosecutor responsible for appointing decisionma'er % investigating complaint. 8roblem is statutory under 5A-*. Cill of -ights used to challenge 5A-* b/c ()) federal statute and (+) case about 7obligations7. 1ule: 1tatutory authori4ation of bias permitted, unless constitutional or 6uasi-constitutional challenge can be made. Gariations in 2tandards of Bias .ld "t. Boniface )esidents Assn Inc v ,inni*e (City! >1**0? 2CC Fa ts: 1 is ;innipeg municipal councillor who was involved at several different stages during 4oning application: ()) tal's with developer, (+) spea's in support at in-camera mtg of 5ity Finance 5te, (,) sits in on 8ublic Aearings and (.) sits on 5ommunity 5te which approves 4oning changes. <1C-* claim 8F violation due to bias. 1ule: #he test for elected officials is the Amena:le to Persuasion >EClosed %indE? !est: 8arty alleging dis6ualifying bias must establish that there is a pre(udgment of the matter, in fact, to the e"tent that any alternative

representations would be futile. 3lected officials can rule in the best interests of the community, so long as they are capable of being persuaded. =oldin': Do dis6ualifying bias as councillor capable of being persuaded. "ave )ichmond /armland "ociety v. )ichmond (Townshi*! >1**0? 2CC Fa ts: > was alderman involved in re4oning apps: ()) ma'es statements in favour of re4oning during campaign, (+) ma'es + separate statements prior to hearings: 7will listen attentively at public hearings, but will not change his mind7 % 7will ta'e something significant for him to change his mind though he would be interested to see what emerged at the hearings7. 1ule: "ave )ichmond affirms .ld "t. Boniface:s 7amenable to persuasion7 test. Cut see La Forest:s concurring (udgment for a new EClosed( But Not Corru"t7 !est: 7* closed, but not corrupt, mind does not constitute dis6ualifying bias so long as you have best interests of community at heart7. #fld Tel Co. v. #fld (Board of Commissioners of Pu-lic >tilities! >1**2? 2CC Fa ts: ;ells appointed to Coard after being outspo'en consumer advocate. >a'es + comments re Dfld#el5o before hearing (7#el5o needs to (ustify e"penses7) and multiple comments b/t the hearing % the decision (7if he is biased, it is on behalf of consumers7& 7incumbent on #el5o to address ine6uity7) =oldin': Coard order declared void because -*C. 1ule: Do reason why consumer advocates should not be allowed to sit on regulatory boards. Different bias tests depending on the stage: o Investi'ative 2ta'e: *menable to 8ersuasion #est o =earin' 2ta'e: -easonable *pprehension of Cias #est @uestion: Does it ma'e sense to apply one test to the pre-hearing stage, and another test to the hearing stageE $s this artificial to allow people to ma'e comments before the hearing, and then e"pect them to shut up during the hearingE ;hat if we allowed decisionma'ers to ma'e public comments at any stage so long as they are amenable to persuasionE ;ould this allow hearing participants to 'now about and challenge the biases all the way throughE Inde"enden e Canadian Pacific Ltd. v. 2atsBui Indian Band >1**-? 2CC Fa ts: 58 assessed by >ats6ui band for ta" on real property. 58 claims 8F violation due to lac' of independence at w/in >ats6ui appeal structure, and see' (udicial review. =oldin': 5ourts interested in furthering FD self-government. Do bias as appeal structure hadn:t actually been tested. *ppeal structure may wor' in practice though it may lac' independence in theory. 1erves as advance warning to Cand to ensure independence. #issent: FD self-gov:t does not dilute D? re6uirement. -*C found when independence lac'ing: No se urit0 of tenure: ) year appointments only, sub(ect to whim of 5hief % Cand 5ouncil which are one of opposing parties No finan ial se urit0: Do guaranteed salary for appeal boards, nor payment plan 4ath of Im"artialit0 is insuffi ient: <ath will not salvage lac' of security of tenure % lac' of financial security. $ndependence premised on discretion is illusory. *ppeal structure not independent % inherently flawed, regardless of whether tribunal actually e"ercised discretion to be independent. 1ule: Loo' at the tribunal structure in practice to determine independence, rather than simply e"amining the statute - a tribunal may lac' independence in theory, but not in practice (CP v. 2atsBuiC similar to ;@:@ 3ue-ecE) Fundamental 8usti e "ection @ of the Charter 3veryone has the right to life, liberty and security of the person, and the right not to be deprived of it e"cept in accordance with the principles of fundamental (ustice. "ection &(a! and "ection ;(e! of the Bill of )i hts

16 $t is hereby recogni4ed and declared that in 5anada there have e"isted and shall continue to e"ist without discrimination by reason of race, national origin, colour, religion or se", the following human rights and fundamental freedoms, namely, (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 e"cept by due process of law& 26 3very law of 5anada shall, unless it is e"pressly declared by an *ct of the 8arliament of 5anada that it shall operate notwithstanding the "anadian #ill of $ights, be so construed and applied as not to abrogate, abridge or infringe or to authori4e the abrogation, abridgment or infringement of any of the rights or freedoms herein recogni4ed and declared, and in particular, no law of 5anada shall be construed or applied so as to (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental (ustice for the determination of his rights and obligations& "in h v. Canada (2inister of ?m*loyment and Immi ration! >1*/-? 2CC Fa ts: 8re-R/)) case. 1ingh et al claim 5onvention -efugee status (torture) and are interviewed by 1enior $mmigration <fficer who decides whether case will be referred to -efugee 1tatus *dvisory 5ommittee. -1*5 only gets interview transcript % claim - responsible for deciding whether claim will be accepted or not (delegated from >inister). 1ingh:s $*C appeal is denied& challenge constitutionality of Immi ration Act by claiming s.@ breach (life at sta'e) b/c ()) no oral hearing before $*C decided 7reasonable grounds7 and (+) didn:t 'now case they had to meet. A**eal *rocess (s.@D!< *pplicant can appeal to $*C w/ written submissions % 1$< transcript (no oral hearing). $*C re6uired to consider application % decide whether there are reasonable grounds! to allow the claim. $f reasonable grounds, you get full $*C hearing w/ natural (ustice rights. >inister can ma'e additional submissions to $*C at this stage, but >in:s submissions are D<# disclosed to claimant. $f no reasonable grounds = then you:re done, claim re(ected, appeal over. 2 o""ortunities for oral hearin': ()) w/ 1$< % (+) potentially at $*C if reasonable grounds 2 o""ortunities for written su:missions: ()) w/ 1$< % (+) potentially w/ written $*C appeal =oldin' )Wilson 86Cs Charter anal0sis+: IA procedures infringe on s.@ 7security of person7 due to threat of physical torture, therefore 1 entitled to fundamental (ustice under 5harter. *t a minimum, 1 needed to 'now the >inister:s case against him before ma'ing written appeal and deserved oral hearing b/c of adversarial claim reconsideration process (>inister vs 1ingh). Dot saved by s.&. %inorit0 )BeetFC Bill of )i hts Anal0sis?: Cill of -ights more suited when potential deprivation of rights by foreign gov%ts& >inister concedes that 1:s 7rights and obligations7 were at issue. 5ase turned on F? def:n under Cill of -ights. <ral hearing re6:d when credibility is at issue - should be held in front of $*C decisionma'er (1$< had no decisionma'ing power). Loo' at ()) nature of rights at issue and (+) severity of conse6uences to determine whether oral hearing re6:d. 1ule: Loo' to seriousness of wrong (conse6uences due to ris' of wrong answer) to determine whether s.@ invo'ed by infringing life, liberty or security of person. *t a minimum, 5harter 8F? are the same as Cill of -ights 8F?. 8F? re6uires oral hearing in certain situations: ()) credibility and (+) life % death issues. Loo' at ()) nature of rights at issue and (+) severity of conse6uences to decide whether oral hearing re6:d. 8F? also re6uire that applicant 'now case against them. 3fficiency % convenience do not override 8F?. Post$"in h note< s.@ does not always re6uire oral hearing now. 1ometimes, s.@ violation can be saved by s.&. Chiarelli v. Canada (2inister of Justice! >1**2? 2CC Fa ts: 5 (5dn 8-) automatically ordered deported b/c convicted of indictable mob offence w/ /H year sentence. 5 not allowed to attend 51$1 hearing, but given summary of in-camera evidence and given opportunity to respond by calling ;s or re6uesting cross-e"amination. 51$1 certifies 5 as security ris'& recommends deportation. Issue: Did 51$1 procedures violate 8F?E =oldin': 5 had notice of substance of case against him % given opportunity to respond. Dot necessary that 5 be given details of investigation. s.@ can be mitigated by national security interests. 1ule: s.@ must balance right of indv:l to 8F? % need to protect police informers. Dational security interests may mitigate 8F? content - applicant only gets substance of case against him.

#istin'uish Chiarelli from "in h: 5 not facing torture if deported to homeland - 5 also not applying for 5onvention -efugee status. =ow does this differ from "in hE 5hiarelli was not, presumably, facing deprivation of life, "uresh v. Canada (2inister of CitiFenshi* and Immi ration! >2002? 2CC Fa ts: 8ost-R/)) terrorism case. 1uresh is #amil #iger who becomes landed immigrant - ordered deported. Loses oral deportation hearing. >a'es written appeal on A%5 grounds. $nsufficient A%5 grounds - no reasons provided. 1uresh slapped with security certificate (allows >inister to deport 1 b/c he:s a terrorist even though he has a fear of persecution if deported). Issue: ()) was decision unreasonableE (+) 8F violationE (,) s.M 8F? violationE 1ule: Qse common law Baker 8F factors to determine content of 8F? duty. ;here * establishes prima facie case that he has ris' of facing torture, he must have notice of full case against him % be given opportunity to respond. #his includes opportunity to view >inister:s information before ma'ing written submissions. >inister must also personally provide written reasons for decision: ()) why * is a danger and (+) why * won:t be tortured at home. =oldin': s.M rights violated, not saved by s.). Baker / factors mitigate in favour of strong procedural protections: 1 not entitled to full oral hearing, but should:ve gotten more than *ct gave. 1 needed to 'now full case against him % be given opportunity to respond. 1+ Nature of #e ision: 1erious decision, but lots of discretion. 2+ 2tatutor0 2 heme: Final decision with no appeal procedure. 5+ 1i'ht Affe ted: Pery important right, since 1uresh could face torture. .+ Le'itimate B3"e tations: Dot considered in this case -+ Choi e of Pro edures: 5onsiderable ministerial discretion ,ilson v. British Colum-ia (2edical "ervices Commission! )1*//+ BCCA Fa ts: Docs claim s.@ liberty rights infringed b/c ability to practice profession w/o restriction as to place, time % purpose is limited by C5 >edical 1ervices *ct which restricts number of practicing doctors % where they can practice. 1ule: s.@ does not protect economic or property rights. Cut ability to practice profession is e"pression of one:s selfworth % liberty, and can only be infringed in accordance w/ 8F?. =oldin': >1* violates s.M by restricting 7right7 of C5 doctors to wor' freely in province w/o 8F?: lac' of hearing / vague criteria / uncontrolled discretion / no review process / arbitrary. Note: ,ilson went too far (Prostitution )eference, 155) 5Prostitution )eference5< )eference re "s. &'A 8 &'G(&!(c! of Criminal Code >1**0? 2CC "ection @ is not an all-inclusive right. "ection @1 s liberty % security of person self-worth. <nly physical liberty % security should be included under s.@. <verturns ,ilson. #ew Brunswick (2inister of %ealth and Community "ervices! v. J.+. >1***? 2CC Fa ts: 5hild custody case. 1ule: 2ov:t restriction of 7security of person7 must have a profound % serious effect on person:s psychological security in order to invo'e s.@. 3ffects assessed ob(ectively, with view to impact on psychological integrity of person of reasonable sensibility. Losing custody of one:s child falls under security of person when state process impugns dignity % general childrearing ability. Blencoe v. British Colum-ia (%uman )i hts Commission! >2000? 2CC Fa ts: >arch R/ - C accused of se"ual harassment *pril R/ - -emoved from 5abinet ?ul R/ - + more complaints filed, alleged to have occurred b/t >ar R,->ar R/. ?ulRM-DecRM - 5ommission investigates. $f sufficient evidence, then #ribunal hearing. >arch RG - #ribunal hearing set Dov RM - C applies for stay of proceedings on grounds that delay caused such pre(udice it was an abuse of process. Issues:

)) Does the 5harter apply to the actions of the C5 Auman -ights 5ommissionE ;! Did the state9caused delay violate his section @ ri htsE ,) $s C entitled to an administrative law remedyE .) $s a stay of proceedings the appropriate remedyE =oldin': 5harter applies to C5A-5 because it is a governmental body e"ercising statutory authority and ad(udicators have power of compulsion. 1tate-caused delay did not violate C:s s.@ rights as psychological harm suffered was not direct result of statecaused delay (media played a huge role). C had no administrative law right to a remedy as ()) no pre(udice to fairness of hearing and (+) no significant abuse of process. C doesn:t get a stay either under the 5harter or administrative law principles. C only gets costs. 1ule: s.@ 1<8 remedy: o Liberty affected if state prevents you from ma'ing fundamental life choices o 1ecurity affected if ()) state-imposed harm and (+) serious 6uality of interference. Does not apply to ordinary stresses. o Do independent right of dignity. o Do constitutional right to be protected against stigma in human rights hearing: ()) goal of commission is investigate % conciliatory, not prosecutorial and (+) no state pronouncement stigmati4ing your general fitness. *dministrative 1<8 re6uires proof of significant pre(udice resulting from unacceptable delay: ()) pre(udice to fairness of the hearing or (+) abuse of process. o Pre9udi e to Fairness of =earin': i.e. witness died, documents lost, etc o A:use of Pro ess: inordinate delay has caused such significant psychological harm to person or attached stigma to reputation that it brings human rights system into disrepute. Aigh threshold. #issent: >inority agrees in result, but thin's that court should:ve only loo'ed at whether there was an abuse of process under admin law principles. Does not view threshold for *<8 stay as re6uiring system to be brought into disrepute - instead, loo' at ()) length of delay, (+) causes of delay, (,) impact of delay. >inority trashes 5ommission for its inefficiency. 1ees , possible remedies for delay: ()) stay, (+) e"pedited hearing and(,) costs. 2u:stantive 1eview #eterminin' 2tandard of 1eview Pra'mati D Fun tional A""roa h to determinin' 2tandard of 1eview Push*anathan v. Canada (2inister of CitiFenshi* and Immi ration! >1**/? 2CC Fa ts: $-C finds that 8 not 5onvention refugee b/c of e"clusion clause: 7has been guilty of acts contrary to purposes % principles of QD7. <rdered deported to possible torture. 1elevant 2tat Provisions: IA4 s.=@ - privative clause s.0A(&! - statutory right of appeal from Fed5t#D to Fed5* only if 7serious 6uestion of general importance7 =oldin': 5orrectness: ()) statutory right of appeal to both F5#D/F5* on 7serious 6uestions of general importance7 (+) wea' privative clause (,) low e"pertise on specific 6uestion. 1ule: 5oins 78ragmatic % Functional *pproach7 to determining standard of review. Jse thisK Le'islative Intent: $s the 6uestion one which the legislature intended to be left to the e"clusive (urisdiction of this tribunalE 1+ Privative Clause: *bsence/presence of privative clause is not definitive. Loo' at how strongly worded privative clause is - if wea', then loo' at other factors. 2+ B3"ertise: >ost important factor. Aigh e"pertise K more deference. Cut tribunal:s e"pertise must be understood in relation to e"pertise of the court a) tribunal:s e"pertise b) court:s e"pertise (as a whole, not individual (udges)

c) particular 6uestion: who has more e"pertiseE 5+ Pur"ose of 2tatute D Provision o 8olycentric decision (multifactored balancing test): more deference o *d(udicative decision (competing rights of + parties): less deference .+ Nature of Pro:lem o Juestions of fact: more deference o Juestions of law: less deference Aighly generali4ed propositions of law K less deference unless implied or e"plicit legislative intent to the contrary Law "ociety of #ew Brunswick v. )yan 1ule: <nly , standards of review: correctness, reasonableness simpliciter and patent unreasonableness. Dot a spectrum: you cannot have a standard which falls b/t the , standards. 8urisdi tional Provisions: !he Correctness 2tandard >nion des em*loyes de service4 Local ;'0 v. Bi-eault H&'00I "CC Fa ts: 1chool fires union employees % hires new wor'ers - union claims that 3ue-ec La-our Code allows previous union to represent new (anitors. 1elevant 2tatutor0 Provisions: s. :G 9 1uccessor-employers bound by any collective agreement reached with union. s.:= - L-C has (urisdiction to ma'e order over s../ app, if s../ applies at all Issue: ;hat standard of review to apply in L-C:s interpretation of their (urisdiction to consider non-consensual transactions b/t old % new companies under s../E 1ule: 'id the legislature intend for this question to be within the (urisdiction of this tribunal& $f yes, then tribunal has (urisdiction. 8atent Qnreasonableness standard applied to answer. o Patentl0 unreasona:le Brror: ;hen its construction cannot be rationally supported by the relevant legislation $f no, then tribunal does not have (urisdiction. 5orrectness standard applied to answer. o #his includes 6uestions where the tribunal is interpreting its own enabling statute % deciding whether it has the (urisdiction to answer a 6uestion. 5orrectness standard applied to their decision. -emember C>P? which holds that courts should not be so 6uic' to consider everything a (urisdictional 6uestion. =oldin': L-C did not have (urisdiction to consider application b/c s../ did not apply to this situation. #herefore, standard of review was correctness. Correctness: !ri:unals with no e3"ertise Canada (Attorney +eneral! v. 2osso* >1**5? 2CC Fa ts: 5ivil servant >ossop is denied for bereavement leave to attend same-se" partner:s father:s funeral, b/c leave only applies family of opposite-se" partners. Does Cdn %uman )i hts Act 7family status7 apply to same-se" familiesE C%)A: no privative clause /ederal Court Act: can overturn decisions if error of law Fa tors determinin' 2tandard of 1eview Less #eferen e: Juestion of law, no privative clause %ore #eferen e: 3"pertise of #ribunal on human rights issues =oldin' )5$1$1+: 5orrectness standard. Do privative clause& Juestion of law& A-5 doesn:t have e"pertise to decide 6uestions of law. >ossop loses. La Forest: 5orrectness standard (default where no privative clause - legislative intent to not shield #ribunal from review). A-5:s e"pertise relates to fact-finding, not general 6uestions of law (unli'e Labour Coards % 1ecurities 5ommissions). LC=eureu3$#u:e: 8atent Qnreasonableness standard. L:Aeureu"-Dube would have let A-5:s decision stand. >ore deference to ()) tribunals w/ broad mandates, (+) tribunals with narrow mandates if 6uestion is clearly within the narrow mandate, (,) where privative clause is present, (.) where speciali4ation and e"pertise is relevant, (/) where

the nature of the 6uestion re6uires it (i.e. broad, policy-based 6uestions may re6uire more deference). 8ragmatic and functional approach means that courts must e"amine who is in the best position to decide. Privative Clause: Lac' of privative clause is not determinative. 2tatute: Croad powers to the 5ommission. Nature of Board: Aighly speciali4ed body Nature of Pro:lem: Determining whether someone fits w/in prohibited ground of discrimination is absolutely within A-5:s e"pertise. Juestion of fact, not of law. Trinity ,estern >niversity v. BC Colle e of Teachers >2001? 2CC Fa ts: C55# denies #;Q accreditation app b/c gay-condemning agreement is discriminatory. Teachin Profession Act allows C55# to establish teacher certification standards which are in the public interest. Issue: ;as the C55# within their (urisdictionE $f so, what standard to apply to decisionE =oldin': 5orrectness standard. C55# w/in (urisdiction, but Push*anathan factors still go in favour of correctness. )) 8urisdi tion: w/in (urisdiction b/c role of schools to develop civic virtue % multicultural values +) Privative Clause: Do privative clause. 1tatutory right of appeal. 5abinet can overturn bylaws passed by C55# K therefore less deference. ,) B3"ertise: C55# has no e"pertise in answering human rights 6uestions % sought legal advice before deciding. 5ourts have lots of e"pertise in human rights 6uestions K less deference. Pur"ose: *ct regulates teaching in province, but policyma'ing role limited % can be overturned by 5abinet. Darrow statute K Less deference. Nature of Pro:lem: Juestion of law on human rights issue K Less deference. #issent >LC=eureu3$#u:e?: 8atent unreasonableness Dissent % >a(ority on opposite sides of every single Push*anathan factor. )) Privative Clause: Doesn:t matter that there is no privative clause +) B3"ertiseL 1elf-governing profession has e"pertise. 5ourts should allow professions to govern themselves. Decision goes to heart of tribunal:s e"pertise - educational policy ,) Pur"ose: Pulnerable schoolchildren need more protection than investors in PeFim. 8olycentric statute which re6uires great discretion .) Nature of Pro:lem: Juestion of fact. C55# not acting as human rights tribunal - they were only considering ) human rights value of e6uality, not religious freedom. )easona-leness "im*liciter< 2tatutor0 1i'ht of A""eal PeFim v. British Colum-ia ("u*erintendent of Brokers! >1**.? 2CC Fa ts: C5 1ecurities 5ommission investigates % prosecutes 8e4im for insider trading % failure to disclose 7material change7 of negative test results in timely manner. s.&: 8 s.&:: - C515 has sweeping powers to act in public interest s.=@: $ssuers must disclose 7material changes7 7as soon as practicable7. s.&:': statutory right of appeal from 15 to C55* on 6uestions of law Do privative clause Issue: 1tandard of reviewE =oldin': -easonableness 1impliciter 1tandard: ()) e"pert tribunal (+) no privative clause (,) statutory right of appeal (.) 6uestion of law w/in tribunal:s e"pertise. Privative Clause: Lac' of privative clause is not determinative (see dissent in 2osso*) Nature of 2tatute: 15s have both ()) e"pertise % (+) are regulatory in nature Nature of !ri:unal: -egulatory tribunal w/ limited policy-ma'ing role - can develop sweeping, but nonbinding policies. Dot ad hoc ad(udicative tribunal though. Nature of @uestion: Juestion of law at issue (definition of 7material change7 and 7as soon as practicable7) falls s6uarely w/in tribunal:s e"pertise. 1ule: 1tatutory right of appeal and absence of privative clause may still lead to deference, if e"pert tribunal answering a 6uestion of law w/in their e"pertise. 5ourts must determine whether tribunal has the e"pertise to answer this 6uestion. Loo' at whether the 6uestion before the tribunal goes to the core of the agency:s e"pertise, given the nature % scope of the statutory mandate. 1ee "outham which actually coined 7reasonableness simpliciter7 standard.

Canada (Director of Investi ation and )esearch! v. "outham Inc. >1**7? 2CC Fa ts: 1outham buys ), local indie newspapers to limit competition. 5ompetition #ribunal orders 1outham to sell off some papers due to decrease in mar'et competition. 1elevant 2tat Provisions: Com*etition Act4 s.&A: statutory right of appeal from 5# to Fed5# s.& - overall purpose of *ct is to foster competition =oldin': -easonableness simpliciter: ()) e"pert tribunal, (+) broad statutory right of appeal, (,) no privative clause, (.) 6uestion of mi"ed law % fact, (/) 7more economic than legal7 problem. 1ule: 5oins the standard 1easona:leness 2im"li iter. ;here there is a statutory right of appeal, the standard is generally reasonableness simpliciter. 1easona:leness 2im"li iter: Dot supported by any reasons % cannot stand up to a probing e"amination Patent Jnreasona:leness: Defect which is immediately obvious 3"pertise is the most important factor in determining deference. Patent >nreasona-leness C>P? v. #ew Brunswick LiBuor Cor*oration >1*7*? 2CC Fa ts: Li6uor employees lawfully stri'e. Qnion complains to L-C - employer unlawfully replacing employees w/ mgt. 1tatute is Pu-lic "ervice La-our )elations Act. Cecause mgrs employees, there is some 6uestion as to whether L-C even has 7(urisdiction7 to consider complaint. s.&' - Coard has (urisdiction to e"amine complaints re: employees s.&D& - privative clause: decision final % not reviewable by a court s.&D;(A! - messy clause: employer will not replace employees or fill their pos:ns w/ other employees. Cut 7employee7 doesn:t include 7managers7. 8oorly worded statute. =oldin': L-C should be concerned w/ whether employer can replace stri'ing employees w/ managers (regardless of whether mgrs K employees), therefore L-C has (urisdiction to answer 6uestion. 8rivative clause urges deference, unless patently unreasonable. Cut since s.&D;(A! is decidedly ambiguous, there is no one 7right7 interpretation. #ribunal:s interpretation not patently unreasonable % should not be overturned. 1ule: C>P? sets new tone of respect % deference towards tribunal decisionma'ers. *lso establishes EPatent Jnreasona:lenessE standard for less (udicial intervention. 8urisdi tion @uestion: -e(ects old practice of considering 7preliminary 6uestion of (urisdiction7: courts should not be so 6uic' to brand as (urisdictional that which is doubtfully so. $f 6uestion is broad enough so that tribunal should consider it given their enabling statute, then a lac' of (urisdiction will not prevent the court from showing deference6 ;hile courts will still interfere where tribunal clearly acted outside (urisdiction, they will not automatically overturn tribunal:s decision w/o first analy4ing decision in the conte"t of the enabling statute. Privative Clause !est: ;hile privative clause spea's to legislative intent % must be respected, (udicial review allowed if decision is patently unreasonable. o Patentl0 Jnreasona:le Fa tors: *cting in bad faith, basing decision on e"traneous matters, failing to ta'e relevant factors into account, breaching natural (ustice, or misinterpreting the provisions of the *ct. o Note: $n cases w/ ambiguous statutes, court may defer to #ribunal when no one interpretation could be said to be SrightB. A""l0in' the 2tandard of 1eview Corre tness @uestions of Law Canada (A+! v. 2osso* >1**5? 2CC Fa ts: 5orrectness standard (see previous case brief), so tribunal must be correct in deciding whether legislature intended to include same-se" partnerships w/in 7family status7.

Canadian %uman )i hts Act: Do privative clause / 7family status7 included under prohibited grounds of discrimination /ederal Court Act - allows F5* to decide 6uestions of law coming out of C%)A C>PT? Collective A reement< Limits bereavement to employee:s 7immediate family7 1ule: *pplying the 5orrectness standard re6uires statutory interpretation to determine legislative intent (legislative intent, plain meaning, te"tual interpretation, constitutionality % large and liberal approach all considered here). Ia o:u i )%a9orit0+: Le'islative Intent - some evidence that 8arliament had considered including se"ual orientation as enumerated ground, but decided not to. *bsent 5harter challenge (which >ossop declined), legislative intent is clear. 5ourt must apply law as 8arliament intended. 5annot read in se"ual orientation w/o undermining 8arliamentary intent La Forest: Plain Lan'ua'e Anal0sis - 8lain meaning of 7family status7 does not normally include same-se" partners w/in 7traditional definition7 of family. >ost formalistic approach - loo's only within four corners of document. LC=eureu3$#u:e: Lar'e D Li:eral Inter"retation A !e3tual Inter"retation A Le'islative Intent: 5harter values should not be ignored even though no 5harter challenge. 8urpose of *ct is to treat individuals fairly. Loo's at e"ternal sources to interpret family status. -ebuts LF:s arugment by finding that 7family status7 has number of different meanings % should be interpreted to prevent discrimination based on family structure, not simply marital status (see French translation). -ebuts Lamer:s argument by finding clear legislative intent to leave these 'inds of decisions (defining family status) up to the tribunal. Cor0 D % La hlin: 5orrectness, but family status did include same-se" relationships. @uestions of %i3ed Law and Fa t Jurich Insurance Co. v. .ntario (%uman )i hts Commission! >1**2? 2CC Fa ts: <A-5 finds 9urich:s higher insurance rates for young, unmarried male drivers discriminatory % not fitting w/in s.+) e"emption b/c they had an alternative (didn:t have to charge higher rates) % 7essence of business would not be undermined7 if practices changed. .%)A4 s.;& - you can discriminate if you have 7reasonable and bona fide grounds7 .%)A4 s.:& 9 1tatutory appeals allowed on 6uestions of fact or law or mi"ed fact % law (unusual since reviewing courts tend to defer to tribunal on 6uestions of fact) =oldin': 5orrectness: ()) Auman rights tribunal, (+) Juestion of mi"ed fact % law, (,) -ight of *ppeal on 6uestions of fact and law and (.) Do privative clause. A""l0in' 2tandard of 1eview: Do discrimination under correct legal test. 9urich wins. @uestion of Law: 5orrect legal tests as's whether the discrimination done in accordance with sound and accepted insurance practices, and if so, no practical (reasonable) alternativesE @uestion of Fa t: 9urich set rates in accordance w/ proper insurance practices. Do reasonable alternative b/c all competitors doing the same thing. #issent >LC=eureu3$#u:e?: 8atent Qnreasonableness b/c tribunal has e"pertise in this area. *grees with ma(ority legal test, but finds that 9urich had reasonable alternatives since over-+/ year olds charged different rates. ;ould:ve ruled in favour of tribunal. 1easona:leness @uestion of %i3ed Law D Fa t Canada (Director of Investi ation and )esearch! v. "outham Inc. >1**7? 2CC =oldin': -easonableness simpliciter as 6uestion of mi"ed law % fact. #ribunal:s decision that 1outham:s daily % community papers were in different mar'ets was upheld as it was reasonable and had a 7logical % evidentiary underpinning7, despite the fact that the #ribunal gave less weight to certain pieces of evidence. 1ule: Defines an 7unreasonable decision7 as one 7without foundation and logical coherence7 % 7without a logical and evidentiary underpinning7. #he 6uestion is whether the tribunal%s decision can stand up to a somewhat probing analysis. Dote that the tribunal must provide some basis for its decision, but the ultimate weighing of factors in any balancing test is discretionary. #he tribunal has discretion to give less weight to certain pieces of evidence. Patent Jnreasona:leness

%ethodolo'0 #ational Corn +rowers 1ule: ;hether a decision is patently unreasonable refers to the decision itself, not the methodology used in arriving at the answer. 3"amining methodology is more interventionist - closer to $easonableness !impliciter. * patently unreasonable conclusion should be immediately obvious. Do harm caused if tribunal came to the right conclusion, though via wac'y reasoning. Note: ;here the tribunal appeared to have wac'y reasoning, you may still have an argument for procedural review i.e. lac' of reasons. Patent Jnreasona:leness and 1emedies C>P? v 2ontreal (City! >1**7? 2CC Fa ts: 5ity complains to 5ouncil that Qnion had told wor'ers not to wor' overtime on holiday wee'end. 5ouncil finds in favour of city, and orders Qnion to send wor'ers bac' to wor', and orders individual employees bac' to wor'. s.&&&.&@(&!< 5ouncil can en(oin any party in a conflict % ma'e that party do (or abstain from) what is re6uired s.&&&.&@(:!< 5ouncil can order every person in conflict to do (or abstain from doing) anything that it considers reasonable in the circumstances to maintain public services. Issue: Aow to assess whether a remedial order w/in a broadly worded statute is patently unreasonableE =oldin': 8atent Qnreasonableness 1tandard. <rder was not 8Q as individual employees were involved in labour conflict % rational c"n b/t order % maintenance of public services. ;hile order could:ve been more narrowly worded, it was not 8Q and should stand. 1ule: #ribunals have fair amount of discretion when fashioning remedies. 5ourts will show deference so long as there is a rational connection between the breach % the remedy. -emedial <rders are patently unreasonable where: 8eople targeted by order are not involved in conflict Do rational connection b/t action ordered % breach of enabling statute <rder is punitive <rder is inconsistent with the enabling statute <rder violates the 5harter Patent Jnreasona:leness In onsisten 0 Domtar v. 3ue-ec (Commision d1a**el en matiere de lesions *rofessionnelles! >1**5? 2CC Issue: Does inconsistency w/ a tribunal:s (urisprudence K patent unreasonablenessE Fa ts: 3mployee in(ured , days before plant set to close for + wee's. 5*L8 grants ). days payment, not only , days. Labour 5ourt overturns: employers not re6:d to pay for ). days, and that statute raises reasonable doubt that employers are re6uired to pay for ). days. s.=D< 3mployer of an in(ured employee shall pay in(ured employee for the time he would have normally wor'ed, for ). days following his disability s.:DG 8 s.:D': privative clause s.:G0 8 :@A< allows employee to bring penal proceedings against employer in Labour 5ourt if employer fails to pay compensation to in(ured wor'er in accordance w/ *ct. *lso -ight of appeal to 1uperior 5ourt 1ule: $nconsistency 8atent Qnreasonableness. Lac' of unanimity is the price to pay for the freedom % independence of tribunals. =oldin': 8atent Qnreasonableness standard as 6uestion of law w/in 5*L8:s e"clusion (urisdiction % privative clause. 5*L8:s decision not 8Q as s.=D provides income replacement - the fact that 5*L8 may have overloo'ed several important factors (i.e. plant closure) is not a reason for (udicial intervention. Patentl0 Jnreasona:le Findin's of Fa t Toronto (City! Board of ?ducation v. .""T/ District &G (Bhadauria! >1**7? 2CC

Fa ts: Chadauria fired after writing cra4ed % abusive letters to Coard of 3d during <A-5 hearings. Coard of *rbitration finds that C:s cra4iness is temporary % sets aside discharge. Issue: ;hether C* made patently unreasonable decision in their finding of fact that C:s cra4iness was temporary. =oldin': 8atent Qnreasonableness standard (great deference to tribunal:s findings of fact). Decision unsupported by the evidence as no basis for finding that C:s condition was temporary. 1ule: * patently unreasonable finding of fact is one for which there is no evidence - where the tribunal appears to have made a leap of faith in coming to their decision. )ook at whether the evidence, viewed reasonably, is incapable of supporting the tribunal%s finding of fact . #is retionar0 #e isions "uresh v. Canada Fa ts: -egardless of 5onvention status of refugees, minister has discretion to deport a terrorist if they are of the opinion that they are danger to 5anada (IA4 s.GA). 1uresh ordered deported. Issue: ;as the >inister:s use of discretion patently unreasonableE 1ule: Discretionary decisions are sub(ect to a 8atent Qnreasonableness standard in that they cannot be arbitrary, in bad faith, unsupported by the evidence, or vitiated by failure to consider proper factors or follow rules. Note: 5larifies Baker: though the Ca'er minister had discretion, they weren:t following their own rules % therefore acted w/o authority. )e "heehan and Criminal InKuries Com*ensation Board (&'@A! Fa ts: 1heehan applies for 5riminal $n(uries 5ompensation after being assaulted as a Iingston 8en inmate. -efused b/c ()) guilty of a criminal offence, (+) offence happened in a federal institution, outside provincial control % (,) AadnBt applied to any other board for compensation. Law ?nforcement Com* Act4 s.A(&!: Coard may ma'e compensation at its discretion. s.G< Coard may consider all circumstances relevant, including behaviour of the victim. s.@: applicant not limited to this board =oldin': 8atent unreasonableness standard. 5ourt has no right to interfere so long as Coard acts in good faith. <verturns #? (udgment which held that Coard considered irrelevant factors. 1ule: ;here tribunal has discretion, virtually nothing can displace the #ribunal:s findings, absent bad faith % capricious behaviour. Cut see )oncarelli v. Du*lessis: 7no such thing as absolute % untrammelled discretion7. "hell Canada Products Ltd. v. 7ancouver Fa ts: Pan 5ity 5ouncil votes not to do business with 1hell if 1hell 'eeps wor'ing w/ apartheid 1outh *frican holdings % to ma'e Pancouver a 1hell-free 4one. Issue: Aas Pan used discretion (7to ma'e rules for good gov:t of city7) for improper purposeE 1ule: Loo' to the *ur*ose of municipal statutes when e"amining discretionary e"ercise. *ctions ta'en for a *ur*ose that is ultra vires the tribunal:s powers are invalid. #issent )% La hlin+: Pancouver 5harter allows city to ta'e broad view of what is good governance. 5ities should be able to e"press values of social (ustice % psychological welfare. %a9orit0 )2o"in&a+: Decision is reviewable to the e"tent that the decision is intra vires. 5ity only has (urisdiction to do things for a 7proper purpose7. *ppears to use 5orrectness 1tandard: essentially deciding whether 5ity had (urisdiction to ma'e decision. -eads purpose narrowly: 5ity only allowed to operate within local purpose - no c"n b/t 1* % health and welfare of Pancouver citi4ens. Lac' of rationality in decision as 5ity wasn:t boycotting all gas companies involved w/ 1*, only 1hell. "lai ht Communications Inc. v. Davidson >1*/*? 2CC Fa ts: 3mployee dismissed& arbitrator finds in favour of employee % issues ()) positive order re6uiring reference letter and (+) negative gag order re6uiring employer to refer only to reference letter (could not say anything else about the employee). Canada La-our Code4 s. =&.G('! - arbitrator may order employer to do certain things and 7any other li'e thing7 that is necessary to counteract conse6uences of dismissal. Charter4 s.;(-! - freedom of e"pression Charter4 s. & - reasonable limits clause Issue: Aow do 7reasonable limits7 % 7patent unreasonableness7 connectE

=oldin': Coth orders violate s.+()), but are saved by s.) (<a'es #est). 3mployee wins. )) Im"ortan e of 4:9e tive: *rbitrator:s legislative authority protects the wea' 2+ Pro"ortionalit0 a. 1ational Conne tion: yes b. %inimal Im"airment: yes c. #eleterious Bffe ts: yes #issent: Degative gag order patently unreasonable b/c it constitutes an abuse of discretion - 8arliament cannot have intended to allow this totalitarian remedy (ob(ective facts give appearance that employer li'ed employee, when they didn:t at all). Dissent would:ve done admin analysis first, then 5harter analysis. 1ule: 8atent Qnreasonableness standard should not be more onerous than s.& 7reasonable % (ustified7 standard. $f e"ercise of discretion affects 5harter rights, but passes muster under s.&, then patently unreasonable analysis is irrelevant % unnecessary. $n deciding what is reasonable and demonstrably (ustified, 5anada:s international treaty obligations are relevant. Lalonde v. .ntario (Commission de restructuration des services de sante! )2001+ 4ntCA Fa ts: 5ommission orders only French-language hospital in <ttawa to downsi4e. Aospital claims violation of ()) French Language 1ervices *ct % (+) unwritten constitutional principle which protects minorities. /L"A4 s.@ - 2ov:t obligation to provide services in French are sub(ect to any reasonable % necessary limits if all reasonable measures for compliance with *ct are ta'en Issue: 1tandard of review when reviewing #ribunal e"ercises of discretion that violate unwritten constitutional principlesE =oldin': Decision overturned as #ribunal didn:t ta'e minority rights into consideration at all. 1ule: * tribunal must ta'e unwritten constitutional principles into account when ma'ing discretionary decisions. $f international conventions can be considered in interpreting enabling statute ( "lai ht4 Baker), then so should the 5anadian constitution. ;here constitutional and 6uasi-constitutional rights or values are concerned, orre tness or reasona:leness will li&el0 :e the standard6 4rders$in$Coun il :0 the ;overnor or Lieutenant$;overnor$in$Coun il Thorne1s %ardware Ltd. v. Canada >1*/5? 2CC Fa ts: 5hallenged 5abinet:s decision to e"tend harbour limits so that #:s Aardware now had to pay ta". # claimed that 5abinet acting in bad faith for sole purpose of increasing revenue. =oldin': 2overner-2eneral-$n-5ouncil had reasonable grounds for order-in-council, therefore it stands. 1ule: 5ourt can review <rder-in-5ouncil if it is outside the (urisdiction of the 5abinet, or made in bad faith. Cut the 5ourt cannot review <$5 ()) on matters of public convenience % general policy or to investigate motive behind <$5 based on economic policy. %uni i"al B0laws Immeu-les Port Louis Ltee v. Lafontaine (7illa e! >1**1? 2CC Fa ts: Cusiness challenges ta"ing bylaw b/c not enough notice as re6uired by >unicipal 5ode. 1ule: >unicipalities are creatures of statute, and only have the powers e"pressly delegated to them, or those resulting from delegated powers. Corre tness 2tandard o 8urisdi tion: where municipalities acts outside its (urisdiction o A:use of Power: where actions are fraudulent, discriminatory, un(ust or tainted by bad faith. o 2erious Pro edural Irre'ularities: if strict procedure re6:d, then failure to follow procedure K lac' of (urisdiction. "hell Canada Products Ltd. v. 7ancouver (City! ".&GA - a special bylaw is re6uired to authori4e the giving of special rights to a group or person Tenacted through a referendum of citi4ensU.

".;DA / Business Power to #is riminate - ;here a council has the power to license people carrying on a trade, the council has the power to discriminate and pic' and choose #issent >% La hlin?: 5ity has s.+O, business power to discriminate, and this power is modified by Pancouver:s purpose of providing good government for 7health, safety % welfare7 of citi4ens which allows Pancouver to discriminate against 1hell b/c of 1* activities. %a9orit0 >2o"in&a?: >unicipalities only allowed to discriminate if e"pressly allowed to do so. 1ection +O, implies ability to discriminate in awarding of business contracts, but >a(ority does not find an ability to discriminate for international considerations. Limits on #is retion Ainsley /inancial Cor*oration v. .ntario "ecurities Commission )1**-+ 4ntCA Fa ts: <15 issues 7binding7 policy statement w/o the statutory authority to do so. =oldin': 8olicy 1tatement found to be mandatory pronouncement w/ force of law as sanctions attached. Cecause <15 didn:t have statutory authority to create such a statement, it is void. 1atio: Do bright line b/t guidelines % mandatory pronouncements with the force of law. Loo' at format D tone of instrument in its entirety % not on isolated words or passages, to determine whether pronouncement is mandatory Limits on use of non$statutor0 instruments: ()) Don-statutory instrument has no effect in face of contradictory statute or reg (+) Don-stat cannot pre-empt e"ercise of regulatorBs discretion. (,) Don-stat cannot impose mandatory re6uirements enforceable by sanction = e.g. de facto laws disguised as guidelines. Pur"ose and use of non$statutor0 instruments: o 5an be issued without specific statutory authority. o *dmin tool to help regulator act more fairly and efficiently. o $nform constituency of goals and further those same goals. 5Daniels Taskforce5< /inal )e*ort of the .ntario Task /orce on "ecurities )e )1**.+ -ecommended giving 1ecurities 5ommissions power to ma'e binding rules so that they could deal w/ new developments in securities regulation w/o having to wait for stat amendments Noti e$and$Comment 1ulema&in': most important procedure Ca:inet ri'ht of disa""roval: *ny rules not disapproved during 0O-day disapproval period K approved. 5abinet disapproval should be used sparingly. $f 5abinet disapproves of rule, should provide 5ommission w/ instructions on how to amend proposed rule Ca:inet ri'ht of amendment *ll of these procedures are to be done on the public record Constitutional Considerations for Administrative Law 8urisdi tion to Answer Constitutional @uestions Coo*er <verturned by 2artin and Paul Coo*er (La Forest) held that while #ribunals could consider 6uestions of law, they could not consider 6uestions of law related to the constitutional validity of their own enabling statute. 1ee Lamer:s dissent (restrict operation of 5on *ct, s./+ to s.R0 courts). 2artin6Paul follow >cLachlin:s dissent in Coo*er< tribunals with power to consider 6uestions of law should impliedly be allowed to consider whether their own statute is unconstitutional. 5onstitution is 7no holy grail7 that only courts may interpret % apply - 5onstitution must be interpreted by administrative tribunals in order to be meaningful to ordinary citi4ens. #" ,.C.B. v. 2artin )2005+ 2CC: Fa ts: >artin claims that .-wee' statutory limit on long-term benefits violates 5harter, s.)/ by discriminating on basis of disability. *ppeal #ribunal decides that ()) it can apply 5harter and (+) ;5C statute did violate 5harter % was not saved by s.).

Issue: ;hen can a tribunal e"amine the constitutionality of its own enabling statuteE =oldin': #ribunal can answer 6uestions of law, therefore presumption that tribunal can also answer constitutional 6uestions. 8resumption not rebutted. 5orrectness standard applied. 5ourt found that statute did violate s.)/ and was not saved by s.), therefore decision stands. 1atio: 5dns should be able to assert rights in most accessible forums (i.e. tribunal) w/o having to launch parallel court proceedings. 1ets up +-part test to decide whether tribunals have authority to answer con 6uestions. )) Does the tribunal have express or implied authority to consider 6uestions of lawE $f yes, this raises a presumption that the tribunal can also consider constitutional 6uestions. 2tatutor0 2 heme: >ust tribunal answer 6uestions of law in order to function effectivelyE 2tatutor0 %andate: Does statute allow tribunal to answer 6uestions of lawE Intera tion with other admin elements: Does tribunal operate in sync with another tribunal or commissionE Fun tion of !ri:unal (i.e. policy or ad(udicative) Pra ti al Considerations: i.e. capacity of members to determine these 6uestions. 8ractical considerations will not necessarily outweigh an implied power to consider 6uestions of law +) 5an you rebut the presumption that the tribunal can therefore consider constitutional 6uestionsE <nly by e"press statute or legislative intent. 5ourts are still final arbiters of constitutional 6uestions, no great harm in allowing tribunals to answer con 6uestions. ). 5orrectness 1tandard of -eview, no matter what tribunal:s decision on con 6uestion +. #ribunals canBt set common law precedent % cannot generally invalidate their entire statute = thus no great ris' to letting them do this. ,. <nly courts can completely stri'e out unconstitutional legislation ( Con Act4 s.G;) Paul v. BC (/orest A**eals Commissioner! )2005+ 2CC: Fa ts: 8aul claims that Forest statute doesn:t apply b/c of s.AG aboriginal 5harter rights to ta'e 5rown logs. Forest *ppeals 5ommission decides they can answer con 6uestion. 1ule: 8rovincial tribunals can answer 6uestions of federal constitutional law where the issue does not go to the core of the federal (urisdiction. Dothing uni6ue about s.AG rights that prevent them from being considered along w/ all other constitutional 6uestions. =oldin': #ribunal had statutory authority to answer 6uestions of law. 8resumption not rebutted. #ribunal could consider federal con 6uestion (ab law) b/c the main 6uestion was about trees, not FD rights. Lovett4 5Admin Tri-unal Jurisdiction over Constitutional Issues and the #ew ATA5 )200-+ ATA is clear Legislative $ntent that #ribunals should not be considering constitutional 6uestions. ()) !ri:unals reated to im"lement 'overnment "oli 0. $ncongruous to allow #ribunals power, on 5harter grounds, to refuse to give effect to statute that created them. $llogical that Legislature would create an enabling statute that may be unconstitutional and give tribunal the tools to decline to apply unconstitutional enabling statute. (+) 5onstitutional (urisdiction can undermine the administrative 9usti e 'oals of )A+ tribunal timeliness, )B+ accessibility, )C+ sub(ect-matter e"pertise and )#+ efficiency. #he 5harter is complicatedV #ribunals can:t handle itV (,) La0 liti'ants ill$eHui""ed to advan e on ar'uments. -ecall that accessibility to lay-people is one rationale for #ribunals (i.e. 6uic' resolution of human rights complaints). (.) Limited resources of *2 to intervene at tribunal stage on con law 6uestions = *2 should concentrate on (udicial review cases. (/) #an'er of in onsistent( non$:indin' de isions on onstitutional issues . (0) Bffi ien 0: 2iven correctness standard, better to s'ip middle-man tribunal % go straight to courts, since admin con law 6uestions will inevitably end up re-litigated in courts anyway Can a !ri:unal order Constitutional 1emediesM

$f a #ribunal has the authority to consider 5harter challenges, does that #ribunal have the authority to order 5harter remediesE -ecall that s.;:(&! re6uires that tribunal be a court of competent (urisdiction! for purposes of providing relief. ,e-er v. .ntario %ydro )1**-+ 2CC Fa ts: ;eber launches arbitration grievance against Aydro for declaration % damages, and separate tort action for 5harter s.M % s.G breaches b/c Aydro sicced private investigator on him. Issue: $s an *rbitrator (read: tribunal) a court of competent (urisdiction for the purposes of ordering remedies under s.;:(&! of the 5harterE =eld: Nes, *rbitrator was court of competent (urisdiction as he had ()) power over the parties, (+) power over the issue % (,) power to grant desired remedy of declaration % damages. ; gets his damages % declaration against Aydro. 1atio: $f #ribunals have statutory authority to answer con 6uestions, then tribunals can also be 7courts of competent (urisdiction7 for the purposes of granting 5harter remedies under s.;:(&! so long as they have: )) 8ower over the parties +) 8ower over the issue ,) 8ower to grant the remedy sought by the parties #issent: Distinction b/t power to find 5harter violation % power to provide remedy for 5harter violation. *rbitrators 75ourts7 and even if they were, they don:t have 7competent (urisdiction7. #ifferent t0"es of ad9udi atin': 5ourts follow stare decisis *rbitrators decide based upon particular facts % are not obliged to follow precedent. Institutional 4r'aniFation: #ribunals: 6uic'/easy procedure not designed to hold hearings re: con 6uestions. #ribunals do not have same guarantees of independence. 1emedies !he #omain of Common Law 8udi ial 1eview !he 1ea h of Pu:li Law 1emedies >whi h :od0 is su:9e t to 9udi ial reviewM? ;overnment in the Course of Business 7olker "tevin #,T Ltd. v. #,T (Commissioner! )1**.+ NW! CA: Fa ts: *gency established by policy directive (no enabling statute) - responsible for designating businesses as 7northern7 which 6ualified them for special incentives. *gency revo'es P1:s 7northern7 designation. 5ertiorari sought by P1 to 6uash decision. Issue: $s (udicial review available, despite the fact that the agency was not created by statuteE =oldin': Nes, ?- available. *gency not simply dealing w/ specific bids, but power to affect ability of businesses to compete w/ others in see'ing gov:t contracts generally (situation more a'in to licensing, rather than contracting) 1atio: 5ourts can review e"ercise of power by authorities when: #he body is created by statute. #he body is D<# created by statute, but is e"ercising public law functions, or the e"ercise of its power has public law conse6uences. Loo' at ()) sour e of "ower % (+) nature of "ower in determining whether ?- available. 1+ 2our e of "ower: ;hat allows the agency to do thingsE a6 $f statute or regulation/rule = then yes, (udicial review possible. :6 $f power is contractual - then no (udicial review possible (purely commercial decisions relating to govBt procurement). 2+ Nature of the "ower: $s the body e"ercising public law functions, or are there public law conse6uencesE $f yes, (udicial review is possible. a6 $s the body part of the machinery of government decision-ma'ingE :6 Do the bodyBs functions discloses a duty of procedural fairnessE EGoluntar0E Asso iations

Poluntary ass:ns can control access to various (obs, despite not being part of the official gov:t. ). v. %alifa(9Dartmouth )eal ?state Board )1*65+ N22C: Fa ts: Coard e"pelled 1easide -eal 3state from membership for various alleged breaches of CoardBs rules. "ertiorari sought by 1easide on procedural fairness grounds. "*ecial )eal ?state Act4 s. ;: Foster economic growth of 5ity, raise ethical standards, promote home ownership. Issue: $s Coard sub(ect to (udicial review, given that body is a voluntary associationE )) Did the Coard have a duty to act (udicially Tad(udicative vs legislativeUE Tnote that this is pre-$ni ht& now you would decide whether Coard had an ad(udicative vs legislative capacityU +) Did Coard have a duty to act in public interest of the community T "ur"osive anal0sisUE =oldin': Coard sub(ect to (udicial review: ()) duty to act (udicially (i.e. could sanction members) rather than simply advise and (+) duty to act in public interest. 1atio: ;here voluntary association acts in the public interest, they are sub(ect to (udicial review. Loo' at whether the body acts in ()) an ad(udicative or legislative capacity and (+) in the public interest beyond simply advocating for its members. @uestion: Does it matter that it wasn:t mandatory for realtors to (oin the CoardE 1hould the Coard be sub(ect to (udicial review if not all realtors are sub(ect to the CoardE $f the Coard isn:t sub(ect to ?-, what:s 1easide:s remedyE 2tatutor0 A""eals: %ust 0ou e3haust 0our statutor0 a""eal "ro ess :efore see&in' 81M %arelkin v. >niversity of )e ina )1*7*+ 2CC Fa ts: 1tudent re6:d to withdraw from 1ocial ;or' faculty - appeal to uni cte dismissed w/o hearing (clear breach of D?) - student applies for ?- rather than appeal to Qniversity 1enate. Issue: ;as student re6:d to pursue statutory uni senate appeal before see'ing (udicial reviewE 1ule: "ertiorari and mandamus are discretionary remedies. 5ourt is entitled to refuse (udicial review ()) if applicants have been guilty of unreasonable delay, misconduct, or (+) if an adeHuate alternative remed0 e3ists. #here is never a right to either remedy. 1ome cases may militate strongly in favour of the remedies, but never do they become a right. =oldin': Nes, student should have used appeal body. *pplicant probably would:ve gotten trial de novo. $f there were probs w/ appeal process, applicant could:ve appealed to 1uperior 5ourts afterwards. 1enate appeal was more ade6uate remedy b/c of cost % convenience. Loo' to the following factors in determining whether appeal process was ade6uate: )) *ppeal procedure +) 5omposition of the appeal body ,) 8owers and the manner body would probably e"ercise them in .) Curden of the previous finding /) 3"peditiousness 0) 5osts: 5ourts should not use discretion to promote delay and e"penditure unless there is no other way to protect a right. 5annot assume that previous failure to adhere to natural (ustice would occur again upon appeal. Lac' of detailed powers/bylaws re: appeal body does not automatically mean that body does not have power to set aside lower (udgment. 5annot be presumed that appeal body would reach the wrong decision. #issent )#i &son+: Denial of D? amounted to lac' of (urisdiction % therefore allows the applicant to see' certiorari as of right, even where statutory appeal process available. Dothing less than a full de novo review would be ade6uate in ensuring that A:s natural (ustice rights Canadian Pacific Ltd. v. 2atsBui Indian Band )1**-+ 2CC: Issue: 1hould 58 have e"hausted appeals route prior to launching preemptive (udicial reviewE =eld: Nes, 58 should:ve used >ats6ui appeal process. *ffirms %arelkin. 1easonin': )1+ 2hould a""eal "ro edure onl0 a""l0 to assessment valueM Do = should encompass (urisdictional 6uestions too.

8arliament intended broad scope to band powers = entire scheme would be pointless if band could not determine which lands could be assessed. )2+ AdeHuate Alternative 1emed0M N31. Factors = ()) convenience of the alternative remedy, (+) nature of the error, (,) nature of the appellate body. 5onsider the ade6uacy of the appeal procedures = not (ust ade6uacy of the appeal body. $n this case, appeal could be made from the appeal body to the F5-#D. )5+ #oes A""eal Bod0 =ave to :e Better !han CourtsM D<. *ppeal body must simply be ade6uate = if there is a finding that the courts would be a better forum, this does not mean that appeal body precluded from hearing the issue.