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SETTING THE STAGE A. What is Administrative Law? Administrative law is concerned with the relationship between courts and those who make decisions in the course of exercising administrative powers. In particular, administrative law focuses on the way in which and the extent to which courts review or oversee administrative decision-making. Administrative Institutions: i. Administrative powers are largely created by statute (or prerogative power). Such legislation is often referred to as the "enabling legislation. ii. Frequently an administrative statute not only creates certain powers, but also establishes the agency, board, commission, tribunal, or other entity that is to exercise those powers (e.g. labour relations legislation creates a labour relations board and then bestows certain powers on that board) 1. Features of independent administrative agencies: a. Enjoy a measure of independence form the government department: the Minister can NOT direct what decision they must reach. b. People affected by a decision have the opportunity to participate in the decision making process by producing E and making submissions c. Admin agencies normally operate at the point when the public program is applied to the individual (e.g. Denial of a license, unfair dismissal from employment, etc..) d. All admin agencies are specialized and deliver a particular public program 2. An administrative decision-maker (ADM) may be created by either the federal or provincial government; however, the authority given the ADM cannot be contrary to the division of powers in sections 91 and 92 of the Constitution Act, 1867; thus the federal government cannot create an ADM to decide matters that fall within the provincial sphere, and vice versa (Nova Scotia v Canada (1950)) iii. It is also possible for administrative powers established by statute to be given to an already-existing part of government, rather than to a newly created ADM e.g. an individual Minister or Cabinet as a whole might be statutorily authorized to make certain administrative decisions. Areas subject to Admin law: i. Employment ii. Regulated Industries: Utility Companies, Natural Resources, Community Transportation iii. Economic Activities: Competition bureau iv. Professions and Trades v. Social Control: Immigration, Penal systems etc. vi. Human Rights vii. Income Support viii. Public Services B. Courts and Administrative Agencies Courts get their power to review ADM from the following 3 sources: Original Jurisdiction The courts have jurisdiction over decisions of ADMs when ADMs are challenged by way of direct actions by a citizen in contract or tort on the ground that the state has infringed an individuals private legal right. i. Cooper v Wandsworth Board of Works (an action for damages for trespass) concerned the legality of a resolution passed by D, authorizing its officials to demolish a house built by C. ii. T1T2 Limited Partnership v Canada Court held Liberal Gov had breached contract in cancelling the agrt made by the previous Conservative Gov with developers to renovate and privatise Pearson Int Airport. Statutory right of appeal (common) there is no automatic right to appeal the substance of an admin decision to the courts. A right of appeal must be provided for in the statute. Courts expect applicants to work through the statutory appeal process first before seeking JR. Always consult the enabling statute establishing the administrative agency to see if a statutory appeal route is provided and exhaust it first. Main questions a party must ask to determine whether a court appeal is available: i. Does the Tribunal's enabling statute provide a right of appeal? 1. A right to appeal the decision of an ADM, whether to another administrative body or to a court, exists only if such a right is explicitly created in the enabling legislation 2. Courts have no inherent appellate jurisdiction over administrative tribunals, so it must be in statute 3. Must be an appeal of a final decision on the merits ii. What is the scope of available appeal?

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The scope of an available appeal is determined entirely by the enabling statute; it will identify who may bring the appeal and who may hear the appeal, and will also set out the grounds on which an appeal may be brought 2. Some permit complete de novo review of a tribunal's decision, while others more limited iii. Is an appeal available as of right, or is leave required? If leave is required, who may grant it? 1. An appeal as of right means filing requires hearing; leave requires that the application has merit --granted either original decision-maker or appellate body iv. Is a stay of proceedings automatic, or must one apply for it? 1. This suspends the activation of the lower tribunal judgment while the appeal is ongoing Judicial review (less common, but focus here) Unlike appeals, which are statutorily created, judicial review is a procedure that allows superior courts in each province (judges appointed by federal govt) to review of decisions made by institutions and officials with responsibility for administering public programs (the constitutional guarantee of this jurisdiction is discussed below in the context of s 96 courts) Whether JR will be available as a remedy depends on 5 threshold questions: 1. A) Is the tribunal a public body? a. Only public bodies can be subject to judicial review 2. B) Does the party have standing to challenge the tribunal decision? 3. C) Which court to apply to for JR? a. Generally determined by whether dispute is provincial or federal 4. Is the application timely? 5. Has the applicant exhausted all other means of recourse? a. Harelkin: applicants must exhaust all alternative avenues of appeal before going to JR as a last resort 1.

C. Constitutional justifications for JR The rule of law and Admin Law Rule of law = a principle of the CDN constitutional order (Re Secession of Quebec (SCC)) The principle of legality is at the core of the rule of law in that it states that law should always authorize the use of public power AND constrain the risk of the arbitrary use of public power. i. E.G. Dunsmuir v New Brunswick By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. 1. Court premised its decision on the idea that JR is connected w/ the ROL Constitutional basis for JR The argument for implying a constitutionally guaranteed right to JR of admin action has centered around Constitutional Act 1867, ss. 961 Superior courts have a constitutional role and inherent jurisdiction to JR ADM at least WRT questions of jurisdiction (the scope of the power delegated to the body by the legislation) i. Provincially-constituted statutory tribunals (sometimes provinces create de facto s 96 courts, calling them administrative tribunals) 1. A province cannot create an ADM that is in effect a de facto s.96 court (they do not have the jurisdiction) a. Thus, in Crevier v A. G. Quebec (leading case), the SCC held that Quebec had actually created a section 96 court when it established a tribunal whose only function was to hear appeals from disciplinary committees of various professions, and which was intended to be completely insulated from judicial review. Chief Justice Laskin said that a provincial gov, in creating a administrative tribunal, could include a privative clause if it allowed superior court jurisdiction to review questions of jurisdiction even if there was limited judicial review of all other kinds of decisions from the tribunal. But if the wording of the privative clause tried to oust review by courts over even strict jurisdictional questions, then the clause was not constitutionally valid, because the province had de facto created a s 96 court.

S.96 the appointment of superior court judges = sole resp. of federal government; SCJ have inherent power to review ADM and are themselves immune from JR (Supreme Courts do not have jurisdiction to review other Supreme Courts, only inferior courts (Eg Administrative trubunals)

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Crevier establishes that there is constitutionally recognised right to judicial review, at least of questions of jurisdiction, that cannot be displaced by a privative clause, no matter how it is worded. 2. A superior court, even in the face of the most strongly worded privative clause, is constitutionally entitled to check the jurisdiction of an ADM 3. The Superior courts have created a 3-part TEST to determine whether a ADM is acting like a s.96 court, and is .:. unconstitutional since the province was without jurisdiction to create it (Re Residential Tenancies Act (1981)) a. Historical inquiry into whether the challenged power (administrative decision in question) broadly conforms to a power that would have been exercised by a superior, district or county court at the time of Confederation. i. IF NO, then there is no impediment to the statutory delegation ii. IF YES, move to 2. b. Inquire whether the impugned power is judicial (s.96 inquiry must proceed) OR is it legislative/administrative (s.96 inquiry can then stop)? i. In Re Residential Tenancies, Dickson suggested that a power was judicial if it 1. involved a dispute between parties 2. must be adjudicated through the application of a recognized body of rules 3. must be adjudicated in a manner consistent with fairness and impartiality ii. .:. IF Step 1 & 2 are YES, then move to Step 3 c. Contemporary character: Even if the decision-maker (DM) power was historically under the jurisdiction of a superior, district, or county court, has the DM power in its contemporary institutional setting sufficiently changed its character such that it cannot conform to the jurisdiction of a court? i. Q. Whether the s.96 power is incidental to the overall functions of the tribunal ii. The delegation will only be invalid if the adjudicative or judicial function of the admin tribunal is a sole or central function of the tribunal iii. Tomko v Labour Relations Board Held the decision was part of its broader administrative and policy-making role. ii. Federal statutory tribunals There is some support for the proposition that Parliament is subject to precisely the same limitations as Provincial legislatures 1. Imperical Bank of Commerce v Rifou (1986) (CA) --- the constitutional principle of an independent judiciary would be seriously eroded if Parliament were free to assign to federal agencies jurisdiction over matters historically falling within the jurisdiction of superior courts. 2. Macmillan Blodedel Ltd v Simpson (1995) --- court extended principle to federal parliament iii. ROL is preserved because the courts always have final say as to whether the admin decision, as delegated, was properly within ADMs power or jurisdiction Non-jurisdictional issues: the courts view that the authority to supervise the actions of "inferior tribunals" is an inherent part of the powers of section 96 courts (Crevier supra) is unlikely to be changed simply because the classification of issues into jurisdictional or non-jurisdictional has been abandoned. i. The function of JR is to ensure the legality (as above), reasonableness, and fairness of the admin process all in accordance with the ROL Tension between court and the legislature Historically, the stance of court toward admin agencies has been negative: to limit, reign in, supervise and constrain (F&S) i. This is consistent w/ Diceys assertion that admin law is a means through which the courts could control government power to protect individual rights. 1. This has provided a theoretical justification for the exercise by the superior courts of their supervisory jurisdiction over admin agencies on grounds of procedural unfairness and illegality, even when the legislature has apparently expressly excluded JR However, the emphasis has shifted so that courts will tend to be differential to ADM where it seems that this is what parliament intended Thus: balance between upholding the ROL and avoiding undue interference w/ the work that parliament has delegated to admin agencies b.

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D. Generally, courts may review administrative decisions relating to the (See F&S pp.23-33) Jurisdiction of the DM (touched on above) Process by which the decision was reached: Procedural fairness is this an issue courts should review (threshold test) and if so, did ADM use the proper procedures in reaching a decision? i. Apply Baker analysis (pg 27) Substance of the decision: Substantive review regarding the decision itself: did the AMD make an error of the kind or magnitude that the court is willing to get involved in? i. Substantive errors: errors of law, errors of fact, errors of mixed fact and law, exercise of discretion, jurisdiction 1. Concern is generally the outcome of a decision-making process, and not the process of arriving at the decision ii. Involves the determination and application of a standard of review (pg 31) iii. Apply Dunsmuir Administrative law also concerns: Remedies and the legitimacy of JR if there are procedural/substantive defects in the decision, should the court intervene and if so, how? i. Includes the relief available to a person who wishes to challenge an administrative decision and the procedure to be followed in seeking this relief.

Thus, Admin Law can be roughly divided into 3 parts: Procedural fairness; substantive review; and remedies and the legitimacy of judicial review. STEP 1: JR Application re: procedural issue Does duty of PF apply? CH4 Knight If so, has duty been met (content of PF) CH5 Baker If not, quash all or nothing approach First determine if the D was made in a/c with principles of PF; if it was and still not happy with the decision SOR STEP 2: JR Application re: substantive issue Review merits or substance of decision according to appropriate standard of review Based on what SOR is selected (Correctness or reasonableness) the court will either give deference to the tribunal or give no deference

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PROCEDURAL FAIRNESS (Chapter 5 S.F) What is procedural fairness? Duty of Fairness (DOF) is concerned with ensuring DMs act fairly in the course of making decisions, not with the fairness of the actual decisions they makes DOF promotes accountability of public DMs by ensuring input from those affected. Well-informed decisions are likely to be better decisions; thus promoting the rule of law. There are two cornerstone entitlements to procedural fairness: o (i) the right to be heard (including the rights to notice and participation in a fair hearing); and o (ii) the right to be heard by an independent and impartial decision maker

Sources of Procedural Fairness Governing Statutes and Regulations: i. ALWAYS look to the statute first: has it outlined detailed procedures for ADM to follow? 1. Ex: Singh v Canada (MEI)provisions of Immigration Act 1976 prescribed complete procedural code governing refugee status determinations and therefore superseded common law duty of PF a. Statute always prevails over claw ii. Fairness is a CL concept and subject only to compliance with the Charter of Rights and Freedoms (Charter), may be limited or ousted by ordinary legislation 1. Kane v BoD UBC Express language in legislation is required before willing oust or limit fairness (see Cooper) iii. Be careful when reading legislation: make sure statute applies to DM (i.e. could a provincial general procedural statute ever apply to a federal administrative DM?) b. Statutory Procedural Codes i. Once triggered, these codes prescribe common procedural standards for DMs falling within their ambit. ii. Examples (nothing in Federal jurisdiction) 1. Ontario Statutory Powers Procedure Act 2. Alberta Administrative Procedures and Jurisdiction Act 3. British Columbia Administrative Tribunals Act 4. Quebec Act Respecting Administrative Justice iii. Federal and provincial legislation may establish procedural requirements that apply in particular contexts c. Tribunal Rules, Policies and Guidelines: i. Baker: where SC relied on guidelines as a useful indicator of what constitutes a reasonable interpretation of ministers power to grant humanitarian exemptions to Canadas immigration law shows rigid dichotomy between binding rules and non-binding guidelines is eroding. d. Common Law Principles of Procedural Fairness i. If theres no specificity in B or C >>> turn to claw (e.g. Baker) ii. E.g. Cooper v Wandsworth --- Right to be Heard is a fundamental rule of Natural Justice even where the power in question was executive in nature and where the enabling statute did NOT require a hearing 1. Although no words in statute required right to be heard, the justice of CL will supply such an omission iii. NB Common law rights can be overridden by explicit statute of legislature e. Fundamental justice i. Bill of Rights (BoR) [codifies DoF at federal level] and Charter thresholds CL beaten by Statute, Statute beaten by Constitution/Charter CHARTER: can override explicit legislation (NB Bill of Rights ("BoR")) LEGISLATION (statutes, regulations, guidelines): can explicitly override CL protection via clear statutory language => must be explcicit or necessary to oust procedural protection COMMON LAW: can "supply omission" of the legislature through statutory interpretation a.

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Two questions arise when JR proceedings are brought alleging a breach of DoF: A) The threshold test when is an entitlement to fairness triggered? Has the threshold for the application of the duty been met? B) The content of duty of fairness in a particular case what does the DoF require in the relevant circumstances? THRESHOLD TEST When is fairness required? (pg 153) 1. Is there a right to procedural fairness? i.e. is there some source that provides the person affected by a decision with that right? EXAMINE THE STATUTE >>> Including Admin enabling statute, subordinate legislation (i.e. regulations), policies and guidelines and general procedural statutes (e.g. SPPA) Does the statute remove PF owed under the CL? If statute says, e.g. we can refuse your application without a hearing, statute will supersede CL, since its clear/unambiguous provision taking away right to PF (but NOT the Charter) 1. NOTE: If statute says you must give noticelook to CL to see what adequate notice is; must give hearinglook to CL to see what adequate hearing is Make sure the statute applies to the ADM E.g. could a provincial general procedural statute ever apply to a federal ADM?

DUTY OF FAIRNESS (CL entitlements to PF)

Starting point: is a right, privilege or interest at stake? There is a general CL duty of PF on every public authority (eg: tribunals; officials acting pursuant to statutory authority) making non-legislative admin decisions that affect r/p/I (Cardinal v. Director of Kent Institution) Identify protected interest: o Right broad, extensive range of legally recognized interests, the categories of which have never been closed including, property rights, contractual rights, and liberties of the person o Privilege E.g. benefits, such as a licence, permission to engage in trade or the ability to enter a country etc. o Interest generic, including claims NOT included in rights and privileges TEST: Is the r/p/i directly and substantially affected? (Hutfield Alta QB 1986) o Re Webb Distinction between the HOLDER and APPLCIANT of privilege: Decision to let a woman and family into public housing is not enough of an interest, but once admitted, PF is due on whether to kick out o Hutfield modifies this by holding that a minimal DOF may be owed to an applicant for privilege if the decision affects the applicants reputation/financial ability: here, there was a repeated refusal to grant physician privileges (w/o reasons, opp to respond) severe impact on his professional reputation.

TEST: (Knight v Indian head School Division (1990) No longer necessary to characterize the nature of the tribunal process ( Nicholson), e.g. as administrative or quasi-judicial: duty to be fair applies regardless Where the following elements are present, there will be a duty on the ADM to act fairly 1) The nature of the decision to be made by the administrative body o Legislative (less PF) v. administrative decisions (more PF) Here, decision was "administrative" and "specific" since it applied to one person's suitability for a job, so suggests some procedural fairness (see threshold issue 1) o Preliminary (less PF) v. final decisions (more PF) Here, decision was "final" because he was dismissed from his job, so more fairness owed (see threshold issue 2) 2) The relationship existing between that body and the individual (not applicable in situations involving a Public Body and Citizen) o While Knight holds the contract isn't determinative of procedural rights (ADM reqd to act fairly in all cases), Dunsmuir OVERRULES this and holds that explicit language in a statute or K of employment can trump common law duties of fairness for public employees. Dunsmuir holds that the law will no longer draw a distinction between public office holders and other employees in dismissal cases. If the terms of the employees employment is governed by

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contract law, then ordinary private law contractual remedies will apply in the event of his or her dismissal AND PF will, in general, have no application to the dismissal of employees. From Dunsmuir, it will assumed that a contract of employment addresses PF issues. If it does not, then normal CL will govern. Exceptions: However, there may be occasions where a public law DOF will still apply, e.g. (i) where a public employee is NOT protected by a contract of employment (as is the case with judges, Ministers of the Crown and others who "fulfill constitutionally defined state roles) OR (ii) employees subject to employment at pleasure or where the terms of employment are silent on the matter. After Dunsmuir, CL duty of fairness can be overcome by the nature of the K. PF generally has no application in dismissal cases All K Law 3) The effect of that decision on the individuals rights o There is a right to PF only if the decision is a significant one and has an important impact on the individual o In this case, the loss of employment is a significant decision that justifies imposing a duty to act fairly Threshold issue 1) Legislative/general policy decisions vs. administrative decisions The Supreme Court of Canada has always insisted that the duty of fairness does NOT apply to general/legislative decisions (Inuit Tapirisat) but it must be of such a nature in substance, not just form (Homex Realty)

Spectrum of decisions (Martineau v Matsqui) Quasi-judicial/admin <------------------------------------------------------> legislative/policy Individual rights Polycentric FULL DOF NO DOF Judicial type decisions: garner substantial procedural safeguards A purely ministerial decision, on broad grounds of public policy, will typically afford the individual NO procedural protection (Martineau). Similarly, "The rules governing procedural fairness do not apply to a body exercising purely legislative functions" (Re Canada Assistance Plan), e.g. leg. decision to cut funding to BC, ON, AB in clear breach of previous federal program o Held DOF does not apply to legislative decisions Eg. Wells v Newfoundland Newfoundland legislature passed legislation abolishing a quasi-judicial position Wells had. W argued entitled to PF. Summarily rejected b/c legislative decisions are not subject to DoF.

What is a legislative/general decision? While the Court has never explained what it means by legislative functions, it is clear that primary legislation passed by Parliament or a provincial legislature is exempt from the duty of fairness due to the separation of powers between the courts and the legislature. While rational for legislative exemption is clear, categorical exemption of legislative functions becomes problematic when extended to include secondary legislation and policy, because of the long-discredited distinction between administrative and judicial or quasi-judicial decisions pg 157) Indicia: i) The more general the impact of the decision, the more likely it is to be legislative Largely dependent on the number of individuals affected. The exception will apply when the decision affects a large group of individuals and will NOT apply when the decision affects only a small group. o Homex Realty and Development Co. v Wyoming: SCC concluded a municipal by-law attracted a right to be heard because it singled out individuals; it was not of wide and general application affecting all citizens (e.g. legislative) o CARI: Where the impact of the decision is being made is diffuse, affecting a broad spectrum of the public in a generally undifferentiated manner, claims to participatory rights will be hard to justify (likely a legitimate policy decision) i) How is the decision to be madedoes it look to policy OR to adjudicative procedure The nature of the decision, not the body making the decision, is determinative >>> look @ the statutory scheme (Inuit Tapirisat) o Quasi judicial (Homex) Legislatures have the power to pass bylaws in the name of the public interest, but they must do so in accordance with procedural fairness in cases such as this: o Policy procedure (Inuit): NOT normally attracts PF protection bcz deference to cabinet; HOWEVER, PF will apply to decisions outside of jurisdiction to ensure DM has complied w/ statute

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If legislative, do one of these apply? (Eg. does the legislative exemption apply) Cabinet/ Cabinet Appeals: (pg 158) o Cabinet and ministerial decisions are not technically subject to the PF exemption, but it is often easy to characterise their decisions as legislative in nature and as a result, will be exempt from the duty. o RuleGeneral legislative decisions determining policy of broad application do not attract the duty of PF (Tapirisat) Inuit Tapirisat: Cabinet had broad discretion (legislation authorised Cabinet to overturn a decision on its own motion)+ polycentric decision + historically legislative decision = legislative enough = No JR Estey J this was legislative action in its purest form. o While decisions involving particular individuals are more likely to give rise to a DOF to Cabinet and ministerial decisions, Idziak v Canada (Minister of Justice) shows that even in this context the Court may be reluctant to impose procedural requirements. By-laws (subordinate legislation) (Pg 159): o Rule: if by-law is quasi-judicial // directed at one person (is not of general application), then will require a duty of PF (Homex). Also the enactment of the bylaw here, was the culmination of an ongoing dispute. Qualifier: Municipalities can pass bylaws that are adverse to interests, but if doing so, they must give notice and opportunity to be heard Policy making o Martineau a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection. Like formal legislative decisions, both are inherently political in nature & thus subject to political accountability o Knight LHeureux-Dube noted that many administrative bodies have been required to subsume duties traditionally performed by the legislatures, and distinguished between decisions of a legislative and general nature from acts of a more administrative and specific nature. o Imperial Oil Ltd v Quebec (Minister of the Environment) Supreme Court held that in exercising discretionary power to require an oil company to undertake site decontamination measures at its own expense, the minister was performing a political role in choosing from among the policy options allowed under provincial environmental legislation and was not subject to fairness obligations beyond the Act. o Rule: PF not applicable to legislative or policy decisions (would allow too many ppl to be given a hearing) Qualifier: For PF to apply to a policy or legislative decision, the duty to afford PF must be clearly spelled-out in the legislation (Canadian Association of Regulated Importers v Canada) o School closure: difficult to determine whether admin or leg(say both views) View 1: Admin: b/c duty of PF applies to decisions that affect a finate group and have a high degree of impact (Bezaire v Windsor Roman Catholic Separate School Board) View 2: Legislative: b/c it could be considered a general policy decision Threshold issue 2) Preliminary vs. final decisions General rule: the duty of fairness applies to decisions. o If a decision is NOT final or de facto final (ie its interlocutory or preliminary) no procedural fairness (Knight) Right of appeal Clause = interim/preliminary EXCEPTION: Preliminary decisions may (rarely) be subject to JR if they have: o De facto finality: recommendation based on investigation could lead to final decision (e.g. advisory process w/ serious consequences). TEST Re: Abel 1. Degree of proximity between the investigation and the decision . a. Here, the preliminary decision was Abel's only chance at getting a positive final decision by the Lieutenant G-C 2. The importance of the decision to the applicant a. Here, a denial of procedural fairness resulted in imprisonment and a deprivation of liberty, so great harm o Reputation: factors to consider if PF is required at preliminary stage Irvine v. Canada (1987 SCC) Character of proceeding Nature of Report and whether it is made public Penalty that will result when report is received. Threshld issue 3) was there an emergency at the time? The duty of fairness establishes duties that must be observed before a decision may be made. However PF rights can be suspended/abrogated during an emergency ( Cardinal). o Qual: Rights are not eliminated (merely deferred). They return to force at end of emergency. o Qual: If abrogated, must demonstrate that rights were abrogated no more than necessary for the emergency

Does the doctrine of legitimate expectation apply? >>> Consider both @ threshold and contents stages!

Representations by the decision-maker may create a legitimate expectation of procedural fairness and therefore create a right where there would not otherwise be such a right, but this does not apply to purely legislative decision and whether the representations were sufficient to create an entitlement will be determined in each instance LE only arises where there has been a promise of previous practice that creates a reasonable LE LE looks at the conduct of the public authority in the exercise of that power including established practices, conduct, or representations that can be characterized as clear, unambiguous, and unqualified (Mount Sinai Hospital v. Quebec). AND has induced the claimant (CUPE v Ontario) o LE does not necessarily, though it may, involve personal knowledge by the applicant of the conduct of the public authority as well as reliance and detriment (Binnie in J in Sinai said not reqd) Expectation must be legitimate: must be an authorized decision, NOT ultra vires of the person who makes decision (CUPE v Ontario) o Cannot conflict with the statutory duty LE does NOT create substantive rights to legislative implementation

Ref re CAP: Sopinka J. makes two holdings regarding how the doctrine of legitimate expectations doesn't apply to legislative/broad policy Qs: b. LE cannot create substantive rights (e.g. BC can't compel Parliament to keep paying 50%). It only affords procedural protection c. Legitimate expectations can't constrain essential democratic features // public authorities must be entitled to change their minds (e.g. LE cannot bind a new govt to promises old one) Distinction b/w PF and LE (Binnie J. Mount Sinai Hospital): o Procedural fairness: Driven by Baker factors, such as nature of the interest, nature of the power exercised by the public authority vis--vis that interest (statutory scheme), etc. o Legitimate expectations: Only applies to procedure based on the course of dealings, without guaranteeing any substantial outcome. Must look at whether the gov't/agency made promises and whether it would be unfair to renege on normal promises

Threshold checklist: Does the decision affect a R/P/i? Was the decision final? Was the decision legislative in nature? Was there an emergency at the time? Legitimate Expectations? Where the requirements of either Knight OR LE triggers are met, PF is owed by the ADM

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FUNDAMENTAL JUSTICE

When the statute explicitly excludes procedural entitlements or is interpreted NOT to allow procedural entitlements, then you can use the Charter (Singh) Unless the conflicting legislation expressly declares that it operates notwithstanding the Bill of Rights, the Bill of Rights applies and the legislation is inoperative. Authorson

Is the Charter or Bill of Rights engaged?

*** Use Charter to determine if threshold crossed, but CL to determine content

Differences between the Bill of Rights and the Charter:

Bill of Rights Subjects: federal institutions only (inc prerogative powers) ** Does NOT apply (1) provinces or provincial gov't agencies or (2) CBCA corporations

Charter Subjects: federal, provincial and territorial governmental bodies** McKinney v University of Guelph Universities are not government and not amenable to Charter. Includes HR Commission (Blencoe): although an indep adjudicative body, it was implementing govt HRs policy

Applies to "persons" (e.g. corps) and "individuals"

Applies to "everyone" including every human being who is physically present in Canada BUT not corps. Scope: doesnt cover property/pure economic rights ( Wilson), BUT liberty is NOT confined to mere freedom of bodily harm >>> will cover livelihood, which may have an incidental economic component Different from JR: Applies to "government" (s.32)

Scope: covers property rights/interests (s.1(a))

Same reach as judicial review: if JR achievable under CL, then you get JR under the Bill of Rights Overrides legislation absent express intention: Fed gov't can legislate expressly so that the Bill of Rights does not apply >>> QUASICONSTITUTIONAL

Overrides legislation always: all legislation must be in accordance with the Charter, UNLESS saved by s.1 (i.e. can be demonstrably justified in a free and democratic society.) >>> ENTRENCHED IN THE CONSTITUTION

**Remember that the Charter applies only to "government"must decide whether the body in question is fulfilling a government function in a way that isn't an issue with the Bill of Rights THUS: Governing Question: is "governmental action" involved? (Not at all like JR) Singh: at a minimum, Charter principles of fundamental justice are the same as principles of fundamental justice under Bill

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of Rights Bill of Rights: Specific Procedural Thresholds

Step 1: Does the BOR apply?

- Bill of Rights: matter must be in federal sphere (only applies to federal statute) BUT.... Does not include Canadas Business Corporations Act - Unlike the Charter, the reach of the BOR corresponds generally to that of JR under the Federal Court Act. Not confined to just the government. Step 2: establishing a right under the BOR s.1(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right NOT to be deprived thereof except by due process of law

Threshold: Only applies to individuals (natural persons), not corporations Element 1: Is there a right to life liberty and security (similar to s7 interpretation)? And Element 2: enjoyment to property? And Element 3: the right not to be deprived thereof except by due process of the law? USE Bill of Rights, s. 1(a) for due process = procedural fairness (notice, opportunity to make submissions, some substantive content, property rights) Authorson v Canada (AG) (2003): s.1(a) Bill of Rights does NOT guarantee any substantive rights to property (money)

s2(e) no law of Canada shall be construed and applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations

Threshold: Person rather than individual (Includes corporation) Element 1: Was person deprived if the right to a fair hearing? Element 2: In accordance with the PoFJ? Element 3: For the determination of his rights and obligations? Main Determination Authorson v Canada: S 2(e) of the Bill applies only to guarantee the fundamental justice of proceedings before any tribunal or administrative body that determine individual rights and obligations. >>> It does not impose on Parliament the duty to provide a hearing before the enactment of legislation.

Section 7 of the Charter: Specific Procedural Thresholds

Charter of Rights and Freedoms: may be federal or provincial sphere

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STEP 1 A) Must involve state action (e.g. body exercising statutory authority): Even if public, not necessarily government action: McKinney v. University of Guelph, Human rights commissions are bound by the charter: Blencoe B) Is the party everyone Includes every human being physically present in Canada ( Singh) o Ex. Refugee Claimants are entitled to PF (Singh 1985 SCC) STEP 2 ESTABLISHING A RIGHT UNDER CHARTER

Charter, s.7: "Everyone has the right to life, liberty, and security of the person, and the right not to be deprived of it except in accordance with the principles of fundamental justice

ELEMENT 1: Was the right to life, liberty or security breached? To access the procedural safeguards of s.7, complainants must cross the threshold test of establishing that their "life, liberty, or security" interests are impugned by the relevant decision. o Look at the consequences of governmental action to est whether s.7 is invoked o Threshold for activating Charter protection is higher than the threshold for obtaining fairness protection at common law. For example, an application to renew a taxi licence activates fairness protection at common law, but it is unlikely to give rise to constitutional protection because denial of a licence does not constitute a deprivation of life, liberty, or security of the person Case law has determined that these are three distinct rights, not one group (Blencoe) o Security of the person is the broadest of these concepts, includes: Interference with bodily integrity and; Serious state-imposed psychological stress constitutes a breach of an individuals security of the person and; Freedom from the threat of physical punishment or suffering from Singh (included deportation where life may be threatened). What life, liberty, and security of the person rights are protected by the Charter? Ex. Risk of return to dangerous country engages security of the person ( Singh, Charkaoui) Ex. Forced separation of mother and children would have serious effect on parents psychological integrity and stigmatize her engages security of the person ( New Brunswick v G(J) 1999 SCC) Ex, Undue delay in resolution of HR complaint (resulting in stigmatization and impairment of psych integrity) could infringe security interest under s 7 (Blencoe 2000 SCC) Ex. Imprisonment/detention pending deportation engages liberty interest ( Charkaoui 2001 SCC)

ELEMENT 2: If so, was it in accordance with the POFJ? NOT in accordance with PFJ if A has no knowledge of the Ministers case beyond the rudimentary reasons which the minister ha s decided to give him in rejecting his claim: ( Singh v. Canada) Result: procedural rights will only flow from section 7 of the Charter if a persons life, liberty or security of the person is at risk and if the government decision is not justifiable under section 1 (Singh) However: In cases in which s. 7 is found to have been infringed, it is unlikely that legislation limiting or ousting the duty of fairness will be considered justified under s. 1 of the Charter (the Oakes Test) (Charkaoui v. Canada).

Charter, s.1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Once a violation of a Charter right is found the burden shifts to the Govt to show that the limitation in justified. The Oaks Test: a) Importance of the objective b) Rational connection between the objective and he means

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c) Minimal impairment possible. Ddeprivations in the name of administrative efficiency and convenience wont be saved under s.1 ( Oakes Test) because such issues of can't override the PFJ

WHAT PROCEDURAL CLAIMS MAY BE MADE UNDER THE CHARTER >>> ANLYZED W/ BAKER (suresh) Qualification: Resort to the Charter should be reserved for cases in which ordinary statutory interpretation cannot provide a remedy CONTENT OF THE DUTY OF FAIRNESS: RIGHT TO BE HEARD

2. If individual is entitled to PF, how much fairness are they entitled to?

Procedural framework: right to be heard To be analysed after having determined that a DOF fairness applies (THRESHOLD test) The existence of a duty of fairness does not determine what requirements will be applicable in a given set of circumstances. a. First, review the tribunals enabling legislation, applicable regulations, and rules, policies and guidelines: Does the STATUTE set out procedural obligations that should have been followed for the particular decision? 1. Is the statute a complete code OR can it be supplemented with the CL? b. Does the statutory procedural code apply? (see SOURCES above) c. If statute doesnt provide any/sufficient procedural protection, turn to the common law (incs Charter & Bill of Rights) i. It is necessary to determine the content of procedural fairness based on the 5 Baker factors as applied in Suresh (S. 7): 1. Suresh v Canada: What is required by way of procedural protection under s.7, i.e. PFJ, are not identical to DoF in Baker, but are same principles underlying that duty. Therefore, Court applies same factors from Baker to decide what procedural protections ought to be provided. a. Note: ...we look to the common law (Baker) factors not as an end in themselves, but to inform the s.7 procedural analysis >>> so start with 5 Baker Factors

Baker CRITERIA for considering the degree of fairness required BakerFirst three factors (nature of decision, nature of statutory scheme and terms of statute pursuant to which DM operates, and the importance of the decision to the affected individuals) mirror Knight threshold test. Two additional factors round off the list for content (legitimate expectations of person challenging decision choices of procedure made by DM)

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Nature of the decision the nature of the decision being made and the process followed in making it o Does the process resemble a judicial decision? Although classifying decisions as judicial or administrative is no longer important in deciding threshold question (Knight), the more the process resembles judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness (e.g. Homex v CAP) Compare the decision to what courts do, e.g. resolves a dispute btw parties by finding facts and applying law to facts? o Is it a discretionary decision? Argue that if there is a high level of discretion then perhaps can lean towards PF to ensure that discretion was exercised properly. o Is the decision of a serious nature, does it affect those around them? If yes, then the greater the impact then the more rigorous the procedural protections will be mandated. i.e. torture and deportation is most serious When doing this analysis it is best to do it in the context of a comparison to cases such as Baker and Suresh in order to determine the serious nature of the decision. E.g. in Suresh there was the issue of torture or deportation in Baker. Nature of the statutory scheme and the terms of the governing statute o Baker: is this decision final or interim? Is there a an appeal procedure provided within the statute? Baker: no statutory right of appeal** + final decision* = greater PF *Knight: preliminary decisions receive less PF than final decisions; Re Able: however, if the preliminary decision has a great impact on the final decision, then PF applies...to determine the content of PF for interim decisions, look at: o Degree of proximity between preliminary and final decision o Degree of harm faced by the applicant ** If there is a privative clause this would seem to suggest that procedural fairness should apply as the decision is likely final and determinative. Rights affected the importance of the decision to the individual affected o Often the most important factor*** o ^ importance = ^ level of fairness: True whether the matter affected is a right/interest/privilege o The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter (Suresh v Canada) Suresh: deportation to risk of torture under s.53 of the Immigration Act Held: NOT owed "a full oral hearing or a complete judicial process". BUT owed a level of procedural protection greater than that required by the act/than Suresh received. In cases where an applicant establishes a prima facie case that he risks facing torture, he must have notice of the full case against him and be given an opportunity to respond; After considering submissions of refugee then Minster must give written reasons for the decision explaining (1) why the applicant is a danger, and (2) why the applicant won't be tortured at home New Brunswick: loss of children Legitimate expectations of the person challenging the decision o W/ LE, the content of the procedural obligation is generally what was promised in the procedural promise that gave rise to the LE in the first place (UNLESS substantive promise, which cannot be enforced directly but may lead more PF) o May arise out of conduct such as representations, promises, or undertakings, past practice or current policy of DM. IOW LE is driven by the conduct of public authority (Mt. Sinai) Representations need to be clear, unambiguous and unqualified (Canada (Attorney General) v Mavi) Government may be held to its word if representations are procedural in nature and dont conflict with DMs statutory authority. Proof of reliance not required\ Promises/practices: no need to show that the applicant actually had LE, just that its unfair for the gov't/agency to renege on normal practices or promises o Generally, unfair to act contrary to representations as to procedure. Baker: if a plaintiff has legitimate expectations that a certain procedure will be followed, that procedure may be required by the duty of fairness o LE does not apply to questions of pure policy (Reference Re Canada Assistance Plan)

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o LE affords only procedural protection, NOT particular substantive outcomesMt Sinai Hospital v Quebec (2001) Deference to the choice of procedures made by the ADM important weight must be given to the choice of procedures made by the agency itself and its institutional constraints. o Baker: courts should defer in the following cases: Where the enabling statute grants tribunal the discretion to choose its own procedures Where the tribunal has expertise in developing its own procedure (ie: CRTC, securities commissions) even where Charter issues are at stake, some deference to a tribunal with expertise Where the tribunal has clearly turned their mind to procedure and gives reasons for choosing a particular procedure Where the tribunal has a high caseload o CRITICAL: the ability of ADM to justify why they have adopted particular procedures (and not others), which may reflect compromises necessary to allow decisions to made w/in a reasonable timeframe/cost.

CONCLUDE a LOW - meting, informal, reasons, right to be hear in some way MED - written subs, right to heard in some way HIGH -full court procedural, oral, legal rep, Range of PF is required to fulfil the right in the particular circumstances GOAL = a meaningful opportunity to be heard, appropriate to the statutory and institutional context. Once you determine, based on the 5 factors, how much PF should be required, you apply this standard to the CONTENT of PF below CONTENT OF THE PF (inc. PFJ) >>> Right to be heard

3. Did the person get the fairness they deserve? 1) What specific procedure were they seeking? i. Was a full hearing required or is something less than a full hearing sufficient to satisfy the right in the particular context of the case at issue? Key: the content of the fairness duty is flexible and fact specific (Baker). 1) What did they ADM miss (as prescribed by statue/determined by the Baker factors)? PRE-HEARING CONTENT ISSUES Notice: Was there adequate notice of the decision to be made and sufficient to know the case to be met? Fundamental right without it other rights cannot be effectively exercised The general rule is that notice must be adequate in all circumstances in order to afford to those concerned a reasonable opportunity to present proofs and arguments, and to respond to those presented in opposition (Baker). Consider: o (1) Form: oral or written Written is the more usual. o (2) Manner of service: Re Rymal can be reasonably expected to come to the attention of interested persons E.g. by regular mail, registered mail, personally delivered subpoena etc. Some agencies make decisions that affect large and indefinite numbers of persons, which usually requires some form of public notice (i.e. advertisements in newspapers, libraries, radio, tv, etc.) Re Hardy: If decision (school closing) affects a large amount of people, notice is satisfied by informing the general public (e.g. newspaper). Unreasonable to inform everyone individually o (3) Timing: must get early enough to have reasonable opportunity to participate (Krever) o (4) Content: notice must be reasonably effective in providing information ( Ontario Hydro) e.g. should have enough info to determine what decision will be made, if an oral hearing include the place/time/date, if published enough info to determine if they are affected Ask: was the form, manner, content and timing effective?

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Requirement for Notice = fairness, not perfection

Krever: HIV inquiry regarding blood transfusions. Ratio: PF is required in an inquiry due to the possible damage to reputation* AND there is NO duty to issue the notices immediately, only to give a reasonable time** o *If an issue goes to the character or reputation of the individual // has serious liberty/livelihood consequences, Courts will impose the most stringent notice and disclosure requirement (e.g. SPPA s. 8, prior to the hearing if character in issue) Krever Commission was set up to look at various peoples roles in the blood scandal. o * Commissions of inquiry have a statutory duty to provide notice/give an opportunity to respond (Section 13, Inquiries Act) but not a criminal trial so doesnt involve the same procedural safeguards.

Discovery (pre-hearing disclosure) Was discovery adequate to meet the requirements for procedural fairness in the circumstances, to ensure that the person affected has the basis of complete information of the case to be met, but maybe less than the criminal standard? Generally, no pre-hearing discovery unless statute allows o E.g. SPPA s. 12 allowed Human Rights Commission to make an order directing pre-hearing disclosure eliminate surprise Disclosure principles from criminal law (e.g. Stinchcombe Rules requiring the Crown to disclose all relevant information in its possession) don't apply to administrative proceedings (CIBA-Geigy Ltd. v Canada) Delay Has there been undue delay measured in the particular context (n.b., likely difficult to make out unless the delay is extreme, there has been prejudice to the person affect beyond simply waiting and/or there is evidence of bad faith by admin body)? 1. Factors to Determine Undue Delay: a. Length of delay b. Reasons for the delay / responsibility for delay (conduct of the parties considered here) c. Actions and behaviour of the parties d. Institutional Resources e. Prejudice to the Person f. Is it prima facie unreasonable 2. Kodellas v Saskatchewan (HR Comm) (1989) (TEST unreasonable delay) a. Ratio: Establish 3 factors to determine an unreasonable delay in the context of s.7 of the Charter. i. Was the delay prima facie unreasonable (given the complexities of the case) ii. The reason or responsibility for delay (did individual contribute to delay, e.g. by waiver) iii. What is the prejudice or impairment caused by the delay? (impact) 3. Undue Delay: Could violate PF protected by s 7 (Blencoe SCC 2000) a. (i) if there were prejudice to the hearing caused by the delay (ie. lost witnesses, E or loss of memory) or i. Threshold = high (Where delay impairs a partys ability to answer the complaint against him or her, there must be a remedy): result=JR b. (ii) if the delay caused significant psych harm or attached stigma to persons reputation to an extent that brought the human rights system into disrepute. i. Threshold = an abuse of process: delay must be clearly unacceptable and have caused significant prejudice: result=stay of proceedings

THE ACTUAL HEARING Oral Hearing There is no presumption of an oral hearing from Baker: Consider the following re necessity of oral hearing: (1) Nature of issue --- complex? Capacity? Impact? Masters: accused of Sexual assault following investigation. He applied for JR of the Investigative report, argued that he was not involved in interviews, or given witness details. HELD no oral hearing required (it was investigation, NOT a trial); notice of case to be met and written submissions sufficient (trauma to V of being XXd by alleged harasser) (2) Credibility Khan: Law student who failed evidence, said she had 4 booklets. Took it to JR HELD the case stood on her creditability so oral hearing required. Different if just arguing that grade was to low. When creditability = an issue, decision maker may need to see expressions, hear speech of person >>> oral hearing is probably required

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Charter engaged? Generally s.7 interests are so important that an oral hearing reqd, especially where credibility is an issue (Singh) Open Hearing Was the hearing closed for inappropriate purposes? S 9 SPPA (Stat Power Procedure Act) (Ontario): presumption of oral hearings being open to the public. Burden is on party seeking a closed hearing to justify the closure. Consider: Intimate financial or personal information National security Right to Counsel generally there is a right to counsel arising from the requirement that a person be afforded an opportunity to adequately present their case, but it is not absolute and may not extend beyond the parties, to witnesses for example (Stony Mountain) - NO Absolute Right to Counsel at CL (Re Mens Clothing Manufacturers (1979) - A statute excluding OR not conferring the right to counsel is NOT final on the matter >>> PF can provide RTC: tribunals have to consider (discretionary) Re Mens COMPLEXITY: Nature of the issues - easy for a layperson to understand? IMPACT: Consequences of the decision CAPACITY: Ability of the particular parties before them to make out a case. Situations where right to council is required (Re Parrish) 1. Where an individual or a W is subpoenaed, required to attend and testify under oath with a threat of penalty; 2. Where absolute privacy is NOT assured and the attendance of others is NOT prohibited; 3. Where reports are made public; 4. Where an individual can be deprived of his rights of his livelihood; 5. Or where some other irreparable harm can ensue. RTC provided for in s10 SPAA under similar circumstances.

In penal circumstances (Howard v Stony Mountain Institution), factors to consider when deciding if counsel applies: Impact/gravity/severity of decision on individual: Capacity to understand/represent himself: s.7 has NOT created any absolute right to counsel in all such proceedings.... whether or NOT the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence

Right To Council Summary Almost guaranteed in prison/custody contexts (Stony Mountain) but NOT necessary where any s.7 right can be made out (as w/ non-Charter contexts), it is dependent upon analysis of the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant.

S. 7 State Funded Counsel Very rare: where there is a deprivation of life, liberty or security of person at stake, may require provision of counsel of administrative justice New Brunswick (Minister of Health and Community Services) v G.(J) 1. Issue: application by child welfare authorities to take children into custody 2. Ratio: Requirement for counsel is based on (1) the seriousness of the interest at stake, (2) the complexity of the proceedings (adversarial process?), and (3) the capacities of the appellant.

Disclosure of material for hearing Parties are entitled to disclosure of information that the decision-maker has about the decision to be made Disclosure = giving information to parties that the agency has about the decision to be made

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The opportunity to be heard is meaningless unless information is provided on which a meaningful response can be based o Charkaoui: destruction of operational notes = a breach of duty to retain and disclose information required given seriousness. The infringement of s 7 (duty to disclose) is not saved by s 1 of the Charter. May v. Ferndale SCC: duty of procedural fairness generally requires DM discloses information he or she relied upon. Requirement is that individual must know case he or she has to meet ASK: does the material disclosed allow the parties to understand the issues and concerns on which the tribunal will base its decision? Cases requiring full disclosure o Misconduct o Damaged reputation o Professional designation Cases where there is a lower level of disclosure o when it is a policy decision Look at Baker to determine the appropriate level of disclosure Limits of disclosure: o Privilege (Pritchard v Ontario counsel-tribunal) o Relevance --- cost/delay o Third Party Interests (protection of sources) o Charter issues: more stringent requirements (Charkaoui #2, para. 50) ex parte and in camera hearings are held at the request of the Crown if the judge believes disclosure of evidence could undermine national security: Charkaoui #2: Court issued an order compelling the Ministers and CSIS to disclose information which had been disclosed in the hearing >>> disclosure of case to meet is a principle of fundamental justice; if not full disclosure, must be substantial compliance with principle. Chiarelli v. Canada (Minister of Justice) (1992): The court held that disclosure of confidential sources wasnt required by PFJ

Cross Examination There is no inherent or absolute right to cross-examine but there may be a right in a general procedural statute (e.g., section 10 of the SPPA in Ontario) and it has been recognized as a vital element to the adversarial system (e.g. to ensure an affected party has a fair opportunity to address any relevant issues) and a right may exist where there is a judicial-like hearing depending on the case and whether alternatives are available to test the evidence (Innisfil, County of Strathcona) NOT an absolute CL right (Armstrong) However, Innisfil v Vespra: guiding principle is that parties must be afforded a reasonable opportunity to present their cases: unless statute states otherwise, C-E applies (

Factors to consider when PF will require XX: 1. Statutory context (if silent, court should be reluctant to step in) a. + Nature of proceedings: is the agency exercising Court-like function in determining rights or is simply administrating --- Innisfil 2. Other avenues to challenge E a. Where C-E is the only opportunity or possibility to rebut the opposing case OR C-E might reveal E that goes to the heart of the inquiry, XX = fundamental right required by PF. b. Re County of Strathcona and MacLab Enterprises (C-E NOT necessary when other means (written answers) are sufficient to correct/contradict E) i. Ask: how important is the E to the case? 3. Type of E (credibility rights etc) a. Irvine v Canada -- NO right to C-E where admin proceedings are investigatory unless credibility, rights, reputation, or status are in jeopardy. b. Re B and Catholic Childrens Aid Society of Metropolitan Toronto -- C-E necessary where serious allegations (child sexual abuse) & where case decided solely on hearsay

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4. Exceptions (e.g. vulnerable parties) NB SPPA, s. 10.1(b) provides for it where reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.

Ex Parte, in Camera Hearings Def: Closed door hearings in which neither person named or their lawyer can be presen t Denies a fair hearing (violation of principles of fundamental justice PF) Ex. Closed door JR of security certificates for terrorist ties w/o letting in their lawyer or them is not a fair hearing in an adversarial system cuz judge cant test evidence. Could also inhibit partys ability to know the case against them. If case is based on undisclosed info (as it could have been in Charkaoui), then party doesnt know all of case against them.

POST HEARING ISSUES Reasons Traditionally, duty to give reasons was NOT part of PF until Baker, when it established that the duty to give reasons may be required (after all, its hard to challenge a decision if you dont know the reasons why the D was made). focus the decision-maker, provide assurance that arguments have been considered, allows for appeal or judicial review and may provide guidance to others (Baker, VIA Rail Canada) There is a duty to give reasons when (Baker) > (1) decision important to individual, (2) there is a statutory right of appeal, (3) where decisions are discretionary, (4) legit expectations Form of reasons flexible (e.g. officers notes in Baker)

Cotroni --- reasons should: i) allow individual to understand why the decision was made, and (2) allow reviewing court to assess the validity. IOW duty to give reasons entails the requirement to give adequate reasons, meaning they should (Via Rail v NTA): Set out findings of fact and principal evidence upon which findings were based Address the major points in issue AND reasoning process

Judicial Review of Duty of Fairness A. Cardinal: requirements of duty of fairness are independent of the substantive matter in issue (ie it doesnt matter if it appears to reviewing court that hearing would not likely have resulted in different decision) B. Role of the court is to supervise decision-making process, not to ensure proper decision has been made

Charter engaged? Seriousness of impact (Suresh; deportation > risk of torture) >>> increase in the quality/justification of reasons (ex. Demonstrate both that Suresh is a danger to Canada and that there were no substantial grounds to believe he would be tortured)

Framework

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Is the threshold met -- duty of PF owed? To determine this: Rights, privileges, interests ( Cardinal) Legislative or general (Inuit, CARI) = lower Directly and substantially affects person (Homex) = higher Legitimate expectations (CAP, Mt. Sinai) Charter engaged? (Suresh, Charkaoui, Singh)*** Determining the degree of fairness that is required Apply the legislation/regulations/rules does the statute have PF provisions? Determine applicability of statutory procedural code (Ont) Any Charter issues? Cannot restrict rights related to PFJ If no procedure is clearly outlined in the statute (or if insufficient) >> claw: Baker factors Particularizing the content of the duty Evaluate: was PF expected in this case met? Did DM follow procedures they should have? On what grounds did the decision not involve the adequate fairness components? Procedural protections Notice Disclosure/discovery Delay Oral/Public Hearing Cross-examination Right to counsel Reasons If, after applying the Baker factors, theres a PF failure then court grants a remedy.

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Independence impartiality and bias

THRESHOLD Is this the Kind of Decision that Attracts the Requirement of an Independent and Impartial DM? (As above) CONTENT OF THE DUTY OF FAIRNESS: THE RIGHT TO AN INDEPENDENT AND IMPARTIAL DECISION-MAKER *** Dont apply Baker factors

Origins: nemo judex in causa propria sua debet esse no one ought to be a judge in his or her own cause General rule: fairness requires that decisions adversely affecting rights, privileges interests of persons be made by impartial and independent decision-makers Contextual: degree of impartiality and independence required at law will vary according to context Steps in analysis 1) Personal bias 2) Structural independence issues 3) Institutional practices Final Q: what do you think of the entire scheme overall? After looking at the individual/structural indep. of the tribunal, check if the Charter or Bill of Rights is implicated. 1. Bias: Are there issues of bias in the context of the facts at hand? TEST: Reasonable Apprehension of Bias (Committee for Justice and Liberty v NEB) >>> Test is NOT whether the DM was in fact bias PART 1: Reasonable: View of a reasonable person, not one with a very sensitive or scrupulous conscience (Objective standard) Apprehension of bias, NOT actual bias Bias more likely than not that the decision-maker whether consciously or unconsciously would not decide fairly. PART 2: What would an informed person viewing the matter realistically and practically conclude, having thought the matter through? Result: DM DQd Different standards of bias Amount of bias allowable: The standard of disqualifying bias varies with context: Test for bias is contextual and the standard is variable: bias will generally be measured against the general test in a judicial-like hearing (attracting more fairness to hear both sides, act in good faith etc ( Wiswell))

But in some political/policy or pre-hearing contexts a lower standard may be appropriate, where the test is whether the decision-maker is capable of being persuaded or if they have a closed mind

A) If legislative = higher threshold as they can have a closed mind to matter (more deference. Closed mind test before hearing, RAB test during hearing (Save Richmd Farmland Society)

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B) Distinguish partiality by reason of pre-judgment vs. by personal interest (Old St. Boniface v Winnipeg SCC) TEST for elected officials: capable of being persuaded or come to issue with an open mind. Party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any alternative representations would be futile. Elected officials can rule in the best interests of the community, so long as they are capable of being persuaded. C) There are different bias tests depending on the stage in the proceedings (Newfoundland Telephone v Newfoundland). Investigative (pre-hearing) stage: so long as the elected official is capable of being persuaded when they enter the hearing, there is no bias (ie: the "persuasion" test) Hearing stage: reasonable apprehension of bias test In Newfoundland Telephone, the consumer advocate was allowed to make questionable comments at the investigative/prehearing stage, but had to keep his mouth closed at the hearing Do these issues apply on the facts? Bias stemming from individual conduct Antagonism During Hearing --- may indicate RAB o Most common situation is unreasonably aggressive questioning or comments during testimony ( Yusuf); may extent to written/paper hearing (Baker) Association between Party & Decision Maker --- may indicate RAV, determined by the nature and extent of association and relevance to issue @ hand (Marques) o Tribunal members are related to one of the parties/ counsel for tribunal previously acted for one of the parties (Coventant of Sacred Heart) Past association: Marques no RAB where OLRB member had previously been a member of law firm acting for union; since a year had passed b/w positions, it didnt count: must look at totality of situation Involvement of Decision maker in Earlier Stage of Process ( or has specific knowledge of the matter other than in his current capacity as judge) >>> may indicate RAB o Members should not have prior involvement (e.g., investigate) in matters they will ultimately adjudicate: Occurs where DM has heard matter originally that is being re-heard under appeal/judicial review or has been involved in investigation and decision to proceed with the matter being heard ( National Energy Board) o May have statutory authorization defense Pecuniary/other Material Interests o Direct pecuniary or other material interest* in a matter will constitute bias and DQs DM automatically (Energy Probe) *Pecuniary interest must NOT be too remote Attitude of DM toward the outcome or words or behaviour (conduct at the hearing) that put his impartiality into question (e.g. pre-judgement) o If a decision-maker has a clearly developed pre-existing attitude (strong views) about the decision at issue that may indicate a reasonable apprehension of bias, but it is a contextual test and a particular context o Strong views on a relevant or irrelevant issue Great Atlantic & Pacific Co.v. OHRC: An individual that has a prior history of activism in a certain area does not automatically exclude them for bias: however, they shouldnt be able to adjudicate on matters of close association (here Prof. Backhouse was involved in public advocacy re sex discrimination, so couldnt be appointed as a HRs Commissioner and adjudicate case on systemic sex discrimination) o A successful allegation of attitudinal bias requires evidence of manifest unfairness (Paine v U of T court didnt interfere; not manifest injustice)

Statutory Authorisation of Bias >>>Some biases (esp. by reason of prior involvement) may be permitted by reason of necessity:

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Enabling statute may specifically contemplate and therefore authorize structural bias whereby decision-makers play more than one role in an administrative process, although only in the manner and to the extent contemplated by statute and without evidence of a closed mind Brosseau v Alberta (Securities Commission) (1989) SCC -- statute allows for DM to both investigate and adjudicate (overlapping functions); to the extent that it is authorized there will generally be no reasonable apprehension of bias (doctrine of necessity). BUT cannot act outside stat authority AND there can be no evidence Chairs acting beyond stat duty.

EA Manning: Dual roles are not sufficient evidence of bias. Doctrine of necessity: may require members to hear matter even though they may be biased 2. Independence: Are there structural indep issues? Concerns on the tribunals status and relationship to others (structure), and the extent to which the tribunal in making a de cision is free of interference by the Executive/person who appointed them TEST: Canadian Pacific v. Matsqui Indian Band (1995 SCC) A. Confirmed administrative tribunals are subject to Valente principals (Valente v The Queen extend characteristics of judicial independence to Admin Tribunals). DMs should have the freedom to make the decision before them by (analyze elements): i. Security of Tenure: whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner. ii. Financial Security: the right to salary and pension should be established by law and NOT be subject to arbitrary interference by the executive in a manner that could affect judicial independence. iii. Institutional Independence is the ADM so dependent on the government that they cant be perceived as making independent decisions? b. Assessment: RAB arising from institutional/operational structure of tribunal 1. ASK: Would a well-informed person, viewing matter realistically and practically and having thought the matter through, have a reasonable apprehension of bias in a substantial number of cases? (Quebec v Quebec (Regie des permis dalcool) Overall does it look like the agency is run in a way that isnt fair? The possibility that a particular director could be involved in both the investigation, as well as the DM (blurring roles) If NOT, allegations of bias cannot be brought on institutional level, but must be dealt w/CBC B. However the TEST must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence will depend on: a. The nature of the tribunal (type and functions it serves): look at the tribunal structure in practice to determine independence, rather than simply examining the statute, as a tribunal may lack independence in theory but not in practice i. Look at the tribunal structure in practice to determine independence, rather than simply examining the statute - a tribunal may lack independence in theory, but not in practice b. The interests at stake: If s.7 engaged, requirements HIGH

Statutory Authorization Ocean Port (2001): statute can specifically authorize certain admin bodies so that one cannot claim lack of independence even if violated (IOW independence required of tribunal members may be ousted by express statutory language). In this instance would have to rely on Charter breach.

3. Institutional decision-making Has there been improper delegation, etc?

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Refers to the degree to which boards and tribunals can consult with others to whom the person affected will not have had the opportunity to present his or her case (e.g. if high caseload, can only one member hear the application but full board makes the decision?) Delegation Overall Rule Delegatus Non Potest Delegare A. When legislature delegates decision making power to a person/entity, it expects the person/entity to make the decision B. Right to be heard means right to be heard by person/members who will make the decision and who have heard all the evidence and argument Exception = authority to delegate may be provided either expressly or impliedly by the enabling statute (Local Govt Board v Arlidge). Conditions: 1) delegation requires an express act 2) delegated power must be limited 3) delegator must retain ultimate control over the delegate 4) delegate must act within limits of their delegated power >>> Only those powers within the competence of the delegate may be sub-delegated. What CANNOT be delegated = appointment to an office, the ability to make an appointment, judicial/disciplinary power ( whether judicial or not) cannot be delegated Vine v National Dock Labour Board Factors re delgation of disciplinary pwr > (1) nature of the decision, if more important to individual, should not be delegated (Vine), (2) Complexity of decision, (3) nature of decision maker, (4) practical factors Basically, the delegate must undertake the significant matters that have been delegated to it MINSTERIAL POWERS (Carltona Doctrine) Generally - Delegatus Non-Potest Delegare DOES NOT apply to cabinet Ministers - no express act is necessary to allow delegation to officials - the nature of ministers powers = impossible to carry out all tasks - department official (e.g. civil servant) is NOT a delegate their actions presumed to be action of Minister - exception: Courts can say the power must be exercised by the Minister personally Delegation of Duty to Hear Arlidge allowed a sub-delegation of hearing responsibilities (in the name of efficiency); though generally, cannot delegate duty to hear (Jeffs v. New Zealand --- only those whove heard the case may decide it; board doesn't need to hear all evidence BUT must be fully informed to make a decision) Consultation Among Agency Members Issue: Whether, and if so to what extent, the duty of fairness precludes members of an agency panel who heard a case from discussing it with other members of the agency (e.g. board members) after the hearing has ended, but before rendering decision Rule 1: If a DM engages in consultation then such procedures must be optional (consultation must be initiated by the hearing panel, Consolidated Bathurst) and voluntary (panel members must be free to reach their own decision/cant have improper influence/pressure to comply w views of the majority, Tremblay) Rule 2: Panel members can consult with the full -Board on matters of policy (see rule 3) NOT matters of fact (only hearing members can decide the facts of a case, the relevant law, & application of law to facts) Consolidated Bathurst

Rule 3: If new evidence is considered during consultation then the parties have to be given an opportunity to respond Consolidated Bathurst

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Ultimately, decision must be reached by tribunal members in accordance with their opinions, on evidence they have heard Agency Counsel Context: admin agencies have legal counsel who may be employed full time General rule: Lawyers involved in investigations & prosecutions should not assist those who adjudicate (Quebec Inc v Quebec (Regie ). During Hearing: Counsel may advise the tribunal >>> degree of intervention by council depends on the context & counsels perceived neutrality (Counsels interventions shouldnt favour one side (Brett)). Pritchard v Ontario: legal opinions given to agency by staff counsel are subject to lawyer-client privilege> Only compromised in exceptional cases, where counsel oversteps role Counsel Assisting with Reasons: Counsel can assist with reasons (Khan) >>> however, the decision must be substantively the members & counsel should be wary of retiring with the committee members ( Spring) Factors to determine counsels role in assisting with reasons: nature of proceedings, composition of tribunal, terms of enabling legislation, support structure available to tribunal, tribunals workload etc. ( Khan v College of Physicians and Surgeons of Ontario) Reasons review: A third party may be involved in writing the decision as long as strictly confined to the law/policy and NOT the facts. Policies cannot prevent the proper people from deciding the case ( Bovbel). Agency guidelines/fettering discretion of DM: -Some admin agencies make extensive use of guidelines on the interpretation of their enabling legislation, e.g. directions outlining how specific types of cases should be decided or how agency officials should carry out their responsibilities. However, such guidelines cannot fetter the DMs freedom to decide the issue before them (must be flexibility to allow for exceptions) Bell Canada: guidelines can be challenged if they are issued in bad faith or undue influence in the process Tamotharem: guidelines may structure exercise of discretion but cannot be mandatory/eliminate (bind) discretion A decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the DMs exercise of discretion was unlawfully fettered.

THE STANDARD OF REVIEW

This looks at the substance (the outcome of the DM process) of the decision to determine amount of deference court should be giving to the ADM

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Purpose of SOR is to balance legislatures express delegation to specialized agencies with the courts obligation to ensure the rule of law (Dunsmuir) Identify the decision(s) be challenged (may be more than one). - SOR analysis done in EVERY case where statute delegates power to ADM AND when ADM considered the question/already made a decision (no threshold issues) Are there different parts to the questions that need to be broken down e.g. is there distinct legal Q that can be separated from factual Qs? o Levis (City) SCC HELD: multiple standards of review should be adopted when there are clearly defined questions that engage different concerns however different standards should only be used where there are clear distinctions btw the questions. Here, there were 2 separate questions1) relationship btw 2 statutes (correctness); 2) interpretation and application of Police Act (mixed fact and law- reasonableness Determine whether statutorily embedded deference standard exits: *** - If a statute sets out the standard of review to followed (e.g. BCs ATA) that must be followed. - Khosa: it is constitutionally possible for a legislature to define SOR. However, must ask whether the statute is creating standards of review or merely GROUNDS for review? o Legislature DID NOT do this in the Federal Courts Act. Majority in Khosa looked at s.18.1 NOT as est. a standard of review but as GROUNDS to seek JR (courts wont interpret grounds of review as standards of review, where leg. language permits). Courts will apply the common law/Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation. o But SCC didnt look at ATA in that case - Does the BC Administrative Tribunals Act apply? o If there is a BC tribunal, YES .:. patent unreasonableness may apply *** This is not the same as a privative clause which purports to forbid review of administrative decisions. o Legislatures CANNOT insulate tribunals from jurisdictional or rule of law review (Crevier)

Absent clear statutory specification of the standard of review. MODERN TEST (Standard of Review Analysis)* consists of only 2 standards (Dunsmuir): Correctness allows reviewing courts to substitute their own decision for the tribunal if they think the decision is wrong; Reasonableness allows reviewing courts to interfere less frequently *Previously called the pragmatic and functional test and there were 3 standards of review (Southam): Correctness, Reasonableness Simplicitor, and Patently Unreasonable (No longer used)

SOR analysis Before considering any administrative decision both on JR and appeal determine which standard of review applies, e.g. correctness or reasonableness (Dunsmuir + Pushpanathan) for each decision being challenged: STEP 1 Has SOR already been determined in a satisfactory manner through existing jurisprudence? There is a respect for judicial review precedent (Dunsmuir) Reasonableness (some deference) will usually apply automatically in the following categories: Questions of fact, discretion, policy usually automatically allow for deference Same will usually apply for mixed fact and legal issues

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o Try asking whether the answer will provide a legal precedent or not. The more unique the answer is the specific facts, the more likely it is to be mixed (Southam) o A question of mixed law and fact often consist of applying the law to the facts. E.g. Asking whether what did was unprofessional conduct is a question of mixed fact and law; applying legal definition to the facts. Reasonableness will apply to Q of law in the following categories: o Always: Interpretation of own statute(s) closely connected to function* usually suggests deference (CBC/Dunsmuir) *NOT of central importance to the legal system o Sometimes: particular expertise in application of common law or civil rule in relation to a particular statutory context may also warrant deference (Toronto v. CUPE) Ex: labour law adjudicators

Correctness (No deference at all) will apply to questions of law automatically in the following categories: Constitutional issues re separation of powers are always correctness o E.g. decision made exercising a power thats not apporiate Charter issues are always correctness True questions of jurisdiction or vires o Narrow Def: does the tribunal have the authority to make this decision? Ex: United Taxi Drivers Fellowship of Southern Alberta admin had to determine if municipality could enact bylaw limiting # of taxi licences Issues of general law that are of central importance to the legal system and outside the specialized area of expertise Qual: Issues below this standard (not of central importance/outside expertise) may attract reasonableness standard Questions regarding jurisdictional lines btw two or more competing specialized tribunals o Two tribunals with potentially same subject matter: courts will intervene here to make clear to applicant which tribunal they should be applying to ex: human rights and residential tenancies Human rights-related questions attract a correctness standard o Ex: family status in Mossop These are clearly established categories so dont require any more analysis re SOR >>> If not evident/facts are dissimilar, apply Dunsmuir Standard of Review analysis to determine the level of deference owed to the AMD STEP 2 Standard of Review Analysis 1) Presence of a Privative Clause (e.g. tribunal decision is final) OR Statutory right of appeal

Analyse statute! Presence/absence of PC, and an evaluation of its strength, enable court to uncover direct evidence of Parliaments legislativ e intended roles for both court and tribunal. The privative clause is a statutory provision intended to limit the scope or intensity of review by the ADM Three types of PC: o 1. Full (stating the decision of the tribunal is final/not reviewable) o 2. Partial (ex: finality only, or ouster only) o 3. Statutory right of appeal (suggests very little deference, because it explicitly provides for judicial intervention)

Pointing towards reasonableness: o Full/Strong PC purports to oust jurisdiction of courts and will indicate legislative intent of higher deference o An exclusive jurisdiction clause is like a weak privative clause. Still deferential. (Khosa) Pointing towards correctness: o Appeal right will indicate more searching for standard of review (opposite of PC) less deference to decision making body (Pushpanathan) Silence/NO PC >>> neutral and does NOT imply a high standard of scrutiny ( Pushpanathan)

Constitutional limits to PCs Crevier v Quebec (AG) - provincial legislatures cannot prevent courts from reviewing whether an a DM had made an error on a jurisdictional issue o Facts PC precluded superior court review giving tribunal authority over matters conventionally dealt w/ by courts in this case, hearing appeals from professional disciplinary committees o Held: It cannot be left to a Provincial statutory tribunal to determine the limits of its own jurisdiction without appeal or review. Thus, the privative clause was unconstitutional bcz it effectively rendered the tribunal a s.96 court

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The fact that the sole function of the Quebec Professions Tribunal was that of a general tribunal of appeal was a fatal flaw by itself. 2. Privative clauses may, when properly framed, oust JR on questions of law and on other issues NOT touching jurisdiction. o Reasoning: Court applied Prof. Hoggs test re the constitutional limits to PCs: ii. Does the power or jurisdiction conform to power/jurisdiction of superior courts at Confederation? iii. Can the power still be considered a judicial function? iv. Is the function, viewed in its institutional setting, so wide-ranging/altered so as to negate courts exclusive jurisdiction (is the court-like function ancillary to a broader policy making role)? o If YES, YES and NO, tribunal unconstitutional Crevier restriction has also been applied to federally created ADMs. ( MacMillan Bloedel v. Simpson et al) 1.

Reasons why PCs never play a determinative role: o Even with a PC, you can never have a total ban on judicial review ( Crevier) o *** Necessarily subordinated to other steps >>> NOT DETERMINATIVE: other relevant factors in the analysis may together indicate that less deference is due, overcoming the prima facie strength of a strong privative clause ( ATCO Gas) 2) The Purpose of the Tribunal According to the (enabling) Legislation Analyse statute considering the role of the DM, goal of the legislation etc. The more the legislative purpose deviates substantially from normal role of courts, the more this suggests the legislature intended to leave the matter to the discretion of the ADM. More deference (reasonableness) if statute (tribunal) is: Intended to engage, resolve, and/or balance competing policy objectives or the interests of various constituencies (polycentric issues) Meant to resolve dispute in a timely and cost effective method Concerned with protection of the public; Requires tribunal to select from a range of remedial choices or admin responses (Dunsmuir) Indicates DM should have regard to all the circumstances as it considers relevant or grants broad discretionary power >>> see below Asks tribunal to deal with issues of a broad, specialized and technical or scientific nature Less deference if statute (tribunal) seeks to resolve disputes or determine rights between two parties (e.g. adjudicative in nature) >>> Emphasis on deciding facts in these situations (e.g. HR tribunal)

3) The Nature of the Question at Issue Is the question of law, fact or mixed fact and law? a) Question of fact/policy>>> generally accorded a HIGH degree of deference, particularly where there are findings of credibility (the decision-maker at first instance is in the best position to assess) .:. REASONABLENESS b) Discretionary language >>> a HIGH degree of deference (Dunsmuir), esp. where the ADMs authority is framed in broad and general terms, requiring choices from a wide range of options .:. REASONABLENESS c) Questions of general / pure law AND outside the tribunals specialized area of expertise (e.g. what legal test to apply; statutory interpretation) >>> no deference, particularly where the decision will be one of general importance and great precedential value (Dunsmuir) .:. CORRECTNESS a. May be distinguished from questions of mixed fact and law (e) by their potential to apply widely to future cases as precedent (Southam). b. Correctness standard also applies to Qs involving the interpretation of international law ( Pushpanathan) d) Interpreting its enabling statute and relevant statutory provisions >>> more deference e) If law and fact cannot be separated (e.g. application of legal test to facts) more deference if the question is fact-intensive and less deference if it is law-intensive. f) Constitutional questions (inc. Charter) NO deference .:. CORRECTNESS a. HR determinations are also reviewed on correctness standard (Mossop) g) Any jurisdictional question >>> NO Deference: .:. CORRECTNESS (Pushpanathan) 4) The Expertise of the Tribunal

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Even where no PC and a statutory right of appeal, the concept of specialization requires deference be shown on matters which fall squarely w/in their expertise, even statutory interpretation questions ( Pezim) .:. Less deference when the court is just as competent as tribunal >>>> examine breadth/specialization/mandate of tribunal 3 step process for assessing the relative strengths of court vs. tribunal ( Pushpanathan) 1) Characterize the expertise of the tribunal Does the tribunal have specialized knowledge that the court does not? Evidence of expertise comes from the statute (permanent appointments suggest expertise) and the context (dealt w/ cases over and over again) NOT from the qualifications, competence, training or experience of the individual DM (Pushpanathan) 2) Consider its own expertise relative to the tribunal What type of court is it? Some courts have specialised knowledge, e.g. tax court Does the court have expertise that the tribunal does not? Courts have expertise in law and its application If tribunal has no more expertise than court = less deference 3) Look at the nature of the specific issue and determine who has more expertise Pointing towards deference (reasonableness): tribunal has more specialized expertise than the court vis--vis the issue inc. collective history and institutional memory (i.e. years of operation in the field) A predominance of lay members reflects legislatures belief that specialization is more desirable than legal acumen (Southam) 1. Here, tribunal created a tribunal to oversee a complex statutory scheme whose objectives are economic >>> definition of relevant product market fell squarely within tribunals economic or commercial expertise .:. Deference by the Court Tribunal interpreting its own statute/statutes closely connected to its function is akin to the administration of statute & clearly within tribunals expertise Where the tribunal plays a role in policy development >>> ^ deference ( Pezim) Pointing towards NO deference (correctness): Court has more expertise Questions that do not require expertise = less deference Labour boards, human rights tribunals and commissions = minimal deference .:. Balancing the Dunsmuir Factors: o If suggests little or no deference correctness o If suggests somewhere in between reasonableness On the basis of the degree of deference that must be shown, determine the standard of review: Apply SOR: to each decision being challenged to conclude whether DM came to the proper answer? AFTER GOING THROUGH FACTORS YOU WILL MAKE A DETERMINATION AS TO WHICH STANDARD OF REVIEW TO USE TO REVIEW THE DECISION Reasonableness If deference owed (based on SOR) courts will give due consideration to the determinations of the ADM. Court should only intervene if (1) decision in question is NOT within the range of possible, acceptable outcomes, which are defensible in respect of law and facts, or (2) the where DM process was NOT justifiable, transparent and intelligible, (Dunsmuir) Process: does the decision reflect a justifiable, transparent and intelligible process? Courts give a somewhat probing examination of reasons; court will give respectful attention to reasons offered or could be offered Outcome: does the decision fit within a range of possible acceptable outcomes defensible by law If decision was reasonable courts will stay close to tribunals reasons (Ryan) Court will find decision unreasonable if NOT supported by reasons that can stand up to this somewhat probing examination (Southam) o Not supported by tenable reasons o Not properly grounded in evidentiary record

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Correctness: If no deference (based on SOR analysis), court will undertake an analysis, considering all of the evidence , and if it would have had decided differently from the ADM, it can substitute its own view, the correct answer ( Dunsmuir) o Goal: to reach the (singular) right answer Where applicable, the correctness standard promotes just decisions and avoids inconsistent and unauthorized application of law (Dunsmuir, para 50) o Courts will: Treat administrative bodies like inferior tribunals who have erred in interpretation Impose/substitute their own answer original decision is a nullity Judges get the last word use their own reasoning process

Discretionary Decisions >>> If DD, when will it be unreasonable? The concept of discretion refers to decisions where the law does NOT dictate a specific outcome or where the tribunal is given a choice of options within a statutorily imposed set of boundaries (Baker v Canada) Does the decision maker have discretion? Recognizing discretion in the statuary language:

Statute uses may instead of shall, for instance Are there a range of options the decision maker can chose from? Left in their subjective call o A discretionary decision is one that admits of a choice between equally valid options (Baker) and where the law does NOT impose or dictate a particular outcome in a case Does the statute refer to opinion or the public interest? o 'In the opinion of the Minister' (Cupe v Ontario) Delegation of broad powers, often through vague language o Ex: Council may make provisions for good government or good rule

Some other points for sizing up discretion:

Nature of the interest affected: does our legal system normally give a high degree of protection to the interest? E.g. SOR of correctness if tribunal dealing with Charter or questions outside of its expertise (Trinity Western) Character of the decision: are there effective alternative checks to prevent abuse of discretion? Character of the decision maker: expert tribunals, governor in council, minister of the Crown warrant greater deference o If admin body whose decision is challenged is NOT a tribunal, but an elected body with delegated power to make policy decisions, primary function of JR is to decide if body acted within bounds of authority conferred on it. Decision of these bodies invalidated if contrary to express/implied limit on its powers (Chamberlain v Surrey School District)

Has there been an abuse of discretion? Previous Test (improper purposes): Roncarelli No legislative act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose Thus, any clear departure from the statutes purpose or object is an unreasonable exercise of discretion. a. What are the bounds authorized by the statue? Determine what the proper use of discretion would be for? Analyze statutory language preamble in particular b. What factors are relevant or irrelevant to take into consideration when assessing whether party complied with the purpose and objects? c. Has the purpose of the statue been followed by the DM? Traditional Grounds on which DD will be reviewed:

Traditional abuse of discretion grounds are distinct from the SOR; hands off by the courts not because of deference but because outside the realm of the law. While these grounds are useful indicators, JR of discretion is done by SORA today

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Acted in Bad faith (Roncarelli) license taken away because R was posting bail for J Witness. IOW Expressly/deliberately abusing discretion Irrelevant Considerations (Re Sheehan) a tribunal that is given discretion to decide can consider any relevant factor; court will only intervene where considerations are clearly irrelevant and made in bad faith. Wrongful/Improper Purpose (Shell) Vancouver City Council resolution to refrain from doing business with Shell until it stopped doing business in South Africa (during apartheid). SCC held Council had used its statutory discretion for an improper purpose >>> cannot extend to include imposition of boycott based on matters external to citizens Failure to consider relevant Factor An exercise of discretion will be ultra vires only if agency has overlooked a factor that its enabling statute expressly or impliedly obliged it to consider. CUPE: ministers discretion to appoint arbitrators and he appointed past judges > Minister expressly excluded relevant factors legislation said to take into account (did not consider expertise in (labour relations) which were central to the statutory purpose and so the failure to consider them was unreasonable)) Modern Test: Conduct SOR analysis (Baker/Suresh) 1) Determine if reasonableness or correctness applies (apply Pushpanathan test) a. As a general rule: where the question is one of discretion, usually deference (Dunsmuir) i. .:. standard of reasonableness will apply BUT Look @ other elements which suggest reasonableness, i.e. privative clause etc. b. Its going to be difficult to find a grant of discretion that comes with a correctness SOR attached discretionary decision will generally be given considerable respect (Baker). 2) If reasonableness applies, determine if this is a reasonable view for the purpose of the Act o Suresh: If the ADM considers relevant factors, Court may not re-weight them; however, court may intervene if decision is not supported by evidence etc. IOW an exercise of discretion will be ultra vires only if the agency fails to take into consideration/overlooks a relevant factor If there is a guideline does it effectively remove/limit discretion (rule against fettering)? (Thamotharem) DM needs to be able exercise his discretion based on the situation. There is no room for deference if the tribunal has fettered its discretion. When is a guideline an improper fetter of discr etion? - Is the language mandatory or permissive? - Does it allow for exceptions (even if only in exception circumstances?). - In practice, is the Guideline applied as a mandatory directive (whether tribunal members are pressured or required to follow them / whether they treat them as binding rules rather than mere guidelines.) Is there an issue of discrimination? only permissible if enabling statute explicitly provides ( Little Sisters Books) Lalonde v Ontario > A tribunal must take unwritten constitutional principles into account when making discretionary decisions.

Rulemaking and Regulatory Dilemmas (think of UK type Qs) Consider the reviewability of delegated legislation made by: o Governor or Lieutenant Governor in Council: May be possible for court to strike down a Cabinet order, but only if they didnt have jurisdiction/other egregious cases generally not reviewable/court will NOT inquire into motives of Cabinet ( Thornes Hardware). o Minister & Independent Agencies: no reason for court to interfere with DM authority granted by legislative assembly (Cox v College of Optometrists) There is no basis for the court to interfere with the expertise used by the College in the exercise of the authority delegated to it by the Legislative Assembly o Municipal By-laws courts NOT hesitant to review delegated legislation passed by municipalities, generally in the form of bylaws e.g. Shell P&F approach (privative clz, expertise, etc) should be applied in case of review of administrative rulemaking power (Enbridge) Unreviewable discretionary powers?

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o Prerogative Power (grant of honors/making of treaties/appointment of ministers/prerogative of mercy/dissolution of Parl) are sometimes reviewable: Court more interested in nature of power (e.g. subject matter affected) than its source (ie. whether legislative) If decision maker makes decisions that alters individuals rights or deprives them of some benefit/advantage, then judicially reviewable (c/w Black v Canada --- peerage for Conrad back; applied subject matter test) Public Interest Immunity & govt funding NOT reviewable by court unless fraud or extreme circs (Native Womens Assoc of Cda v Cda) o preclusive clauses can prevent judicial reviewability of claims of public interest immunity; however there could potentially be breach of Constitution by ousting judicial review of discretionary powers

The jurisdiction of tribunals and the constitution Lalonde v Ontario > In addition to the Charter, tribunals must take unwritten constitutional principles into account when making discretionary decisions. The Charter applies to administrative and executive actions taken under statutory authority (including regulations, by-laws, orders, decisions) pursuant to s.32 of the Charter.

Purpose of this section is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations

Distinguish between two situations below and choose the appropriate one. The Constitution can be contravened two ways: 1. The legislation that creates the administrative agency or that confers power on the agency may be unconstitutional a. Legislation may be found to be unconstitutional on its face because it violates a Charter right and is NOT saved by s. 1 Charter. In such cases the legislation is invalid and court compelled to declare it of no force or effect pursuant to s.52(1) Constitution Act 1982 The legislation may be valid, but the particular decision may be unconstitutional. a. E.g. Charter infringed NOT by the legislation itself, but by the actions of a delegated DM in apply it. In such cases the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s.24(1) Charter IF constitutional (as opposed to Admin law) analysis is brought to the exercise of Admin discretion.

2.

SCENARIO 1: Constitutional challenge to enabling legislation Where an issue decided by the ADM involves a constitutional challenge to the ADM's enabling legislation >>> before the court can determine or apply the standard of review (as discussed above, likely a correctness standard), it must first consider whether the ADM had the authority to decide such an issue. Does the ADM even have the jurisdiction to decide constitutional questions? Weber v Ontario Hydro (1995) SCC --- affirming Mills v The Queen, statutory tribunals created by parliament may be courts of competent jurisdiction to grant Charter remedies under Ch s.24(1), when the tribunal has jurisdiction over: 1) The parties 2) The subject matter 3) The remedies sought (this is the crucial question) Can only provide Charter remedies to the extent that they have jurisdiction to order remedies under statute Can the Tribunal Decide the Constitutionality of that Provision? NOT looking for express provisions/jurisdiction to decide Constitutional questions > if the express legislation implicitly or explicitly grants the tribunal the ability to interpret and decide questions of law > then there is the presumption they can decide Constitutional questions (Martin) Can this presumption be rebutted?

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Onus lies with the party challenging jurisdiction. TEST: does the Statute expressly or by clear implication exclude Constitutional questions generally or Charter questions in particular from jurisdiction (Martin) Expressthe Tribunal should not decide constitutional questions ImpliedNotwithstanding that out Tribunal has authority to decide questions of law, there is some other body to decide complex questions of law REMEDY If the tribunal has authority to decide constitutional question, what remedy does it have authority to give? Nova Scotia (WCB) v Martin If an ADM upholds a Charter challenge to its enabling legislation, s.52 of the Constitutional Act 1982 allows the ADM to suspend the application of the offending section in the case before it, but does not allow the ADM to make a general declaration of invalidity (e.g. to bind future decisions or strike down the legislation) only a court can strike down legislation

NB: standard of review on JR (by the courts) is always CORRECTNESS for a constitutional question ( Martin)

SCENARIO 2: Admin decision = unconstitutional: constitutional or admin law analysis? Q: what mode of analysis the courts should adopt in cases where both constitutional and common (administrative) law bases are available for challenging a substantive decision involving the exercise of administrative discretion. Here a person will complain about the decision an institution has made and complain directly to the court Is a party arguing that their charter rights have been violated? Multani How is administrative agencys decision is inconsistent w the Charter? Is it an issue of Direct breach? >>> Use constitutional principles/remedies (Multani)

Multani: use Charter review where compliance of an ADMs decisions with the rights -guarantees of the Ch is central to the disputed decision even where there are otherwise admin law components to the case.

USE constitutional analysis e.g. where discretionary decisions of public officials impinge on individual rights (e.g. freedom of religion) Slaight Failure to reflect values consistent with Charter? >>> use ADMIN analysis (reasonableness) Where Charter values may be factor, but decision itself doesnt violate Charter ( Chamberlainfreedom of religion and equality were indirectly involved, but neither directly violated) If this is case, then court considers charter values in admin law analysis Step 2: What approach should the court take in deciding if there is a breach of the charter in an administrative law context?

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A) If Decision infringes Charter right then conduct Charter review: This will require a two-stage analysis (Slaight), asking 1) Whether the Charter was infringed? a. If there is an infringement based on a decision of the ADM then charter principles should apply. 2) Whether such an infringement can be saved under s.1 >>> e.g. whether it constitutes a reasonable limit a. Test to determine if the purpose is demonstrably justifiable in a free and fair democratic society (s.1) i. Importance of the objective ii. Rational connection between the objective and the means iii. Minimal impairment possible b. Onus is on ADM to prove justifiability of decision Remedy: if provision cannot be saved under s1 (Oakes Test), then there will be a breach (and legislation will be struck down). If a breach is established, the Tribunal/Court can award [fill in remedies from directly above] B) If there are distinct bases for ADMIN law review Apply the SOR and determine the amount of deference the court should give the Tribunal Remedy: leaving the legislation in place and granting a remedy in respect of the particular decision (ie. to declare decision be null OR order reconsideration)

STANDING, REMEDIES ETC. Is the tribunal a public body? Only public bodies subject to JR Before determining standing etc. determine if DM is serving a public function or if the decision has public consequences, consider: Source of the bodys powers Functions and duties of the body The extent of the govts direct OR indirect control over the body (implied devolution of power) The bodys power over the public at large The nature of the bodys members and how they are appointed How the body is funded Nature of bodys decisions Do the constituting documents or procedures indicate that the body owes a duty of fairness? What is the bodys relationship to other statutory schemes / parts of govt? is it woven into the network of govt?

Does the party challenging the decision have STANDING? Who can bring an app for JR of an administrative action? There are 3 Types of Standing: (1) Personal Interest

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Section 18.1(1) of the Federal Court Act provides that an application for judicial review of a federal ADM may be made by anyone directly affected by the matter in respect of which the relief is sought. WRT provincial leg see e.g. Ontario Judicial Review Procedure Act) General (CL) Test to see if an individual has standing based on personal interest (Finlay): (1) A person must show an interference with a private right, special damage, or exceptional prejudice that is not suffered by others of the population. In other words a sufficient nexus; OR (2) Direct causal relationship between the injury and the action being challenged. It cannot be remote of speculative. In most cases, it will be obvious who can bring an application for JR, i.e. original parties before the tribunal and persons directly affected by the decision (private rights are interfered with, who suffer special damage or exceptional prejudice). These individuals or parties will automatically have standing to seek JR 2) Public Interest Standing Public interest standing is a matter of discretion for the court: Finlay v. Canada (Minister of Finance) (1986) S.C.C Canadian Council of Churches v Canada (confirming Finlay) application must show: A. Serious issue has been raised as to the invalidity of the legislation in question B. Must be established that the plaintiff is directly affected by the legislation or if not, must have a genuine or direct interest in outcome of litigation (not a mere busybody quoting Finlay) C. No other reasonable and effective way to bring matter to court (Standing NOT be granted if likely that a private litigant will Step forward) **Use as last resort. Better off finding someone who is directly affected ( Finlay) Canada v. Downtown Eastside Sex Workers United Against Violence Society Charter case but confirmed PIS is applicable to Admin law as well Finlay PIS TEST applied: Harris v Canada taxpayer NOT PIS

(3) Standing of ADM Traditionally, tribunal ordinarily does not have standing on judicial review because: (1) the tribunal should not have an opportunity to defend its reasoning (2) the reasons should have set out the basis of the decision they should not be able to add more *** Just because act grants entitlement to be heard upon argument of appeal does NOT mean it is has the right to be a party to such appeal (Northwestern Utilities v Edmonton) Exception: Where the jurisdiction of tribunal is at issue the tribunal can appear before the court to defend its jurisdiction. Children's Lawyer for Ontario v. Goodis The Court found that the appropriate scope for standing will depend on the circumstances of the case, considering: - Whether the tribunals submissions are necessary for the matter to be fully argued and appropriately decided by the reviewing court (importance of having a fully informed adjudication of the issues before the court) - Balance with the need for the tribunal to maintain the appearance of neutrality. - Also, the nature of the question an allegation of unfair treatment of a particular litigant v. an allegation that the institutional decision making process is unfair. >>> Ultimately, a discretionary and contextual approach to standing of ADM ROLE OF ATTORNEY GENERAL AND STANDING

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Generally, AG (Chief Law Officer of the Crown) has standing to commence a judicial review proceeding or participate as a party or intervenor Where: (1) in general public interest, (2) where AGs interest affected (may challenge a decision the parties are happy (and do not wish to challenge) Can become involved as a parties requires or on their own motion INTERVENOR OR AMICUS CURIAE AND STANDING This is when someone is appointed by the court to represent a party or interest that would not be heard. This is an appointment by the court rather than an application by an intervener to participate in JR Allowed at courts discretion Test: the court must ask if they will they add anything new, represent interest not otherwise represented Usually not permitted to expand case (limits on introducing evidence or arguments possible)

To which court should the party apply: Federal Court or Provincial Superior court? Which is authorized to hear an application for JR? Statutory Remedial Regimes Federal Court Act s18 AND Judicial Review Procedure Acts (BC, Ontario) create federal and provincial judicial review rights JR jurisdiction is divided between the Provincial Superior Courts and the Federal Court of Canada > the choice of which court to proceed in will depend on whether the source of power/authority in question is Federal or Provincial. Generally: - If admin body = provincial >>> provincial superior court - If admin body = federal >>> Federal court - Exceptions: some provinces (e.g.: Ontario) stipulate the particular provincial court o E.g. May v. Ferndale Institution: provides that provincial jurisdiction should ONLY be declined by provincial court where legislator has put in place complete procedure for review of an administrative decision (i.e. statute confers jurisdiction on a court of appeal to correct errors of a lower court).

JR of provincially created ADMs Prov. Superior (S.96) courts (and Federal Courts) may both hear constitutional challenges to jurisdiction of federal statutory regimes. They have concurrent jurisdiction. Canada (AG) v. TeleZone The traditional Admin law remedies do not include awards of damages (compensation cannot received on JR). Provincial courts may rule on the validity of federal admin action where there is a damages claim against the Crown as part of the litigation. IOW claims for damages against the crown may be safely brought in the provincial courts, provided that there is an independent and reasonable cause of action. Judicial review of federally created ADMs Review of federal ADMs is done by either the Federal Court Trial Division or the Federal Court of Appeal, depending on whether the ADM in question is covered by section 18 or 28 of the Federal Court Act. Subsection 18 (1) states that subject to section 28, the Trial Division has exclusive jurisdiction over applications for judicial review regarding federal board, commission or other tribunal (e.g. ADMs having their powers conferred to them under an Act of Parliament) Section 28 then lists a number of federal ADMs, and judicial review of these is done by the Federal Court of Appeal @ first instance (PRINT OFF SECTION S.28.1)

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In addition, where there is a constitutional challenge to federal legislation, section 96 courts have discretionary concurrent jurisdiction. (Reza v. Canada) IOW they can decline jurisdiction (practically speaking, this case confirmed the exclusive nature of the review jurisdiction of the Federal Court in immigration and refugee matters, including those raising constitutional issues). NB where there is a statutory right of appeal, the appeal section will state the forum in which the appeal is to be held Other threshold questions to consider: is the application timely? Has the applicant exhausted all other means of recourse SEE DISCRETION OF THE COURT (BELOW)

REMEDIES Statutory Appeals ***Courts expect applicants to work through the statutory appeal process first before seeking JR, so always consult enabling statute to see if a statutory appeal route is provided and exhaust this. Most common way of challenging administrative action is by the huge variety of statutory appeals that exist in the individual statutes creating specific tribunals, agencies, stat powers, etc If there is an appeal section in the enabling legislation, it will identify who may bring the appeal and who may hear the appeal (see above i.e. FCA/FC federally), will set the grounds on which the appeal may be brought (e.g. question of law, mixed law/fact, any issue before the ADM etc.), and whether appeal is available as of right or if leave is required. JR remedies (based on prerogative writs) Certiorari quash or set aside a decision already taken Used for: Jurisdictional error or Error of law. General Rule: The court on JR cannot substitute the tribunals opinion with its own (i.e. new decision) Exception: can do so on statutory right of appeal, e.g. if statute provides Why cant the court make a decision on JR? The authority exercised by the DM is given by statute. The court cannot step in. If this were allowed, it would raise concerns about interference with legislative decisions

Mandamus to compel a decision-maker to perform a duty it is mandated to perform (e.g. to overcome inaction/misconduct) **Often sought in conjunction with Certiorari TEST: A) The action the court orders must be: (1) One that a public person/body has a legal duty to do (non discretionary) or (2) The applicant must have a legal right to have the duty done B) The court can only order mandamus when (must be a request and refusal): (1) The tribunal refuses to comply with a specific duty it has after be asked to comply or (2) An individual has or the applicant must have asked for duty to be done and been refused Mount Sinai Hospital v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281 The minister who was previously in power promised to issue a permit to the hospital. A new govt was elected and the new mini ster refused to issue the permit due to money restraints after he was asked to do so by the courts. The court gave an order of mandamus to order the minister to provide the permit Prohibition to order a tribunal NOT to proceed in a matter (obtain relief preemptively) Habeas corpus to determine the legality of a persons detention with a view to ordering the release of the unlawfully imprisoned

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Quo warranto inquire into what authority justified action Declaration a pronouncement by the court on matters of law, defining the rights and obligations of parties. This remedy will normally be made along with other orders but it may be granted as a sole remedy if no other remedy is appropriate. NOT LEGALLY BINDING but generally followed when ordered. Legislation Legislation in several jurisdictions has simplified remedies and procedures for seeking them (compared to the old prerogative writs), but the remedies are generally based on the old prerogative writs. For example, the Federal Court can issue writs (Federal Court Act, s. 18(1)) and make a variety of orders (s. 18.1(3)) including (from s. 18.1(3)) (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Stays of Administrative Proceeding General rule: a stay of proceedings is not automatic in applying for JR (unlike launching an appeal which automatically stays a decision in Ontario) must apply for leave Federal Court Act, s. 18.2: On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application. Procedure: If you want a stay you must apply for it specifically and separately Requirements for a stay (TEST from Manitoba (AG) v. Metropolitan Stores confirmed in RJR Macdonald v Canada) (1) Case has merit: prima facie case or a serious question to be tried (2) Establish that irreparable harm will result if a stay is not granted Harm that cannot (difficult to) be compensated in damages (3) Balance of convenience Which of the parties will suffer greater harm: balance the harm that the P will suffer if the injunction is not granted vs. the harm the D will suffer if it is granted. Should take into account the public interest. A stay of proceedings and an interlocutory injunction are remedies of the same nature. Same principles apply to interim stays as for interim injunctions: Manitoba (AG) v Metropolitan Stores Monetary Remedies (very rare) - Cannot obtain damages from federal court on an application for judicial review (telezone). Must commence an separate action/application for damages (outside side JR) o Thus, might end up with concurrent proceedings JR in federal court and action for damages in provincial court - However, to claim for damages, you must find a provision in govt statute allowing it you can not just claim it out of thin air must have some legal authority to do so - Crown now generally liable for most causes of action, although may be special notice periods look @ statute Moneys mistakenly paid - Can recoup, e.g. money paid under an unconstitutional statute, ultra vires by-law, unlawful order o Kingstreet Investments attempting to retain unconstitutionally collected taxes Tort liability - Have to fit case w/in a known head of tort liability e.g misfeasance in public office (wrongful exercise of public power) - Test (Odhavji Estate): o Public officer engaged in deliberate and unlawful conduct as a public officer o Aware that his conduct was unlawful and likely to harm the plaintiff (page Damages for beach of Charter rights - Damages may be awarded under s. 24(1) of the Charter. - It will be appropriate for damages to be awarded when: Vancouver (City) v. Ward o 1) There is a Charter breach.

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o o 2) Damages are just and appropriate in that they serve a functional purpose of compensation to an individual for loss suffered, vindication by affirming Charter values, or deterring future breaches. 3) State has the opportunity to demonstrate, that countervailing factors render damages inappropriate or unjust, such as: Existence of alternative (and adequate) remedies Interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. 4) Quantum of loss is established by evidence Compensation goal: restore the claimant to the position he or she would have been in had the breach not been committed.

Discretion of the court Courts have an overriding discretion to deny relief on JR, even where a duty is clearly warranted by the facts. There are several bases for refusing to grant a remedy. Adequate alternative remedy - Before launching JR proceedings, party must exhaust all other adequate means of recourse for challenging the ADMs actions (Harelkin) - This may include reconsideration if statute provides (i.e. internal or statutory appeal) - Question is whether the alternative remedy is adequate, NOT better (Matsqui) Prematurity - Absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course (a final decision has been made) - Courts should not interfere with ongoing administrative processes until after they are completed or until the available, effective remedies are exhausted (deference) - Howe court will ONLY interfere with preliminary ruling of admin tribunal when acting outside of jurisdiction - Air Canada v. Lorenz: AC challenged the adjudicator in an unjust dismissal case for bias prior to a final decision being made (Here, AC challenged the adjudicator in an unjust dismissal case for bias prior to a final decision being made)

Delay -

If a limitation period for filing a JR application passes, it may be a complete bar to proceeding. Federal court statutory limitation period to commence JR: 30 days from communication of the order (s.18.1(2)) Ontario no statutory period; in practice 30-60 days because court has discretion to refuse Friends of Oldman River Unreasonable delay may bar applicant from obtaining a discretionary remedy, particularly where delay would result in prejudice to other parties who have relied on the challenged decision to their detriment (CB 1184) o Fact specific and contextual

The issues is moot - Court may decline to hear a case which raises only hypothetical/abstract questions o The relevant time is @ the time of decision, NOT when the application for JR is commenced. - Moot if no practical effect on rights of parties - May exercise discretion to depart form principle (Borowski) The application is collateral attack on an order - A person who has NOT challenged an order directly through appeal process may NOT, once charged with failing to comply with order, attack the validity of the order in separate proceedings

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Factors to consider re whether a court should rule on an admin order collaterally attacked (Consolidated Maybrun) o Wording of the statute issuing the order exclusivity clause? o Purpose of the legislation o Availability of appeal o Nature of collateral attack what powers does the Admin process have? Can they provide relief? o Penalty on conviction for failing to comply w order

Clean hands - Court can deny a remedy if applicant has acted unreasonably ( Homex) o Misconduct, misleading court, fraud etc. - JRPA s.2.5 preserves the courts discretion to refuse relief on any ground Waiver - Court can deny relief where a party has waived or acquiesced ( Halifax Dortmouth) - Example: failure to raise RAB at the hearing, but only raise after if party loses (lying in the weeds)