SUBSTANTIVE REVIEW OF ADMINISTRATIVE DECISIONS.

When the courts are asked to review determination of questions of law, mixed law
and fact and fact made by the administrative decision makers what approach should
they bring to that task and what tests should they apply?
Initially the issue was dominated by jurisdictional approach admin bodies had
only as much authority as the legislature conferred on them, and courts reviewed
decisions to make sure that tribunals stayed within these boundaries.
Courts treatment of privative and preclusive clauses has always been controversial
because ignoring such clauses was perceived as undermining the authority of the law
makers.
There are important reasons for inserting privative clauses:
Court process is long and time is likely to be of the essence
Litigation is expansive and favors deep pockets (e.g. employers)
Admin bodies have often be created to keep the dispute out of courts, as
courts may not have a good track record of fair decisions in particular context
(e.g. human rights or anti-workers bias)
Courts authority to review for jurisdictional error was based on constitution, when
privative clauses were present, courts interpreted them as applicable only to questions
that had been remitted to the agency to decide, but they did not preclude the
possibility of court deciding whether the agency had the power to decide the issue.
In favour of judicial surveillance:
Admin bodies will tend to expand the reach of enabling legislation, at the expanse
of legal rights of those engaged in the regulated activity.
Against judicial scrutiny:
Courts and common law are no more neutral that admin agencies, and display
anti-regulation and pro- status quo bias.
Three approaches to the definition of jurisdictional review
Jurisdictional error (including a breach of duty of fairness) can be proved by
extrinsic evidence
Tribunal can only be estopped from proceeding before it rendered a decision if
the error relied on by the party seeking relief is one that would deprive the
agency of its jurisdiction.
At common law agency can participate as a party in judicial review of its
decision but only to the extent that the agencys jurisdiction is being impugned
The preliminary question doctrine:
o based on distinction between these questions of law that were within
the area of decision making authority and these that were either
preliminary or collateral to the exercise of agencys jurisdiction.
o No clear test ever devised and the doctrine lacked logical and policy
coherence
o With some level of judicial craft any issue could be presented as
preliminary or collateral.

o No longer good law in Canada

Wrong questions and irrelevant considerations:
o In Anisminic HL held that decisions of admin bodies can only be set
aside if they asked wrong questions e.g. taken into consideration
legally irrelevant factors or ignored factors they were required to
consider.
o It expanded the scope of judicial review for jurisdictional error
o Canada never fully embraced Anisminic but adopted its doctrinal
language and supporting philosophy in Metropolitan Life.
o The approach has been criticized because it nullifies the privative
clause and gave the courts monopoly on correct interpretation of
statutes.
New start: CUPE, Local 963 v. New Brunswick Liquor
o did not settle all questions but it seems to mean that:
an agencys decision might be set aside despite the presence of
strong privative clause if it is based on an incorrect interpretation
of the general law or of enabling statute (pragmatic and functional
analysis)
patently unreasonable interpretation of its enabling statute exceeds
agencys jurisdiction
privative clauses that are not outright prohibitions of judicial
review do not provide as much protection form review , but are to
be taken into account.

Dunsmuir v. New Brunswick [2008] SCC 9:

Facts: David Dunsmuir employed by Dept of Justice in New Brunswick in Feb 2002. He
had work performance issues and was reprimanded three times. His employment was
terminated with pay and reasonable notice of 4 months under ordinary rules of
contract applied under s. 20 of the Civil Services Act in Aug 2004. Dunsmuir initiated
grievance process under s. 100.1 of the Public Service Labour Relations Act. His
grievance was denied.
Adjudicator: He refers grievance to the Labour and Employment Board who appoints an
adjudicator. The adjudicator gives preliminary ruling in Jan 2004 claiming although
Dunsmuir was non-unionized, the reference incorporation of s. 97 in s. 100.1 (5) meant
that he has jurisdiction to look at reasons of termination under s.97 (2.1). His ruling on
merits in Feb 2004 he orders Dunsmuir reinstated and alternative (if his order is quashed)
the period of reasonable notice be 8 months. The New Brunswick Management Board
applies for JR [despite privative clause in s. 101 (1) & (2)] with NB Queen's Bench.
NB Queen's Bench Trial Court Division:
1.
Quashed the adjudicator's preliminary ruling of Jan 2004 by applying the
"functional and pragmatic approach" and considered the following factors:

a).The presence of a full privative clause in the PSLRA

b).The relative expertise of adjudicators appointed under the PSLRA
c).The purposes of s. 97(2.1) and 100.1 of the PSLRA, as well as s. 20 of the Civil
Service Act.
d).The nature of the question as one of statutory interpretation;
and held that the Standard of Review for jurisdiction is "correctness" that the adjudicator
incorrectly interpreted provisions of PSLRA and exceeded his jurisdiction.
2.
Quashed the adjudicator's award of Feb 2004 held that standard of review is that
ruling is of reasonableness and taken as whole did not pass the test. Reinstatement of
Dunsmuir was found to be unreasonable.
3.
The alternate award of 8 months reasonable notice was allowed because it was not
found to be patentably unreasonable.
Dunsmuir files an appeal with the NB Court of Appeal.
NB Court of Appeal:
1.
Dismissed his appeal and held that the trial judge erred in adopting correctness
standard w.r.t. the interpretation of adjudicator's authority, the proper standard was
reasonableness simplicter as adjudicator's interpretative decision fails to meet the
deferential standard. Applying this standard of reasonableness simpliciter, the courts held
that adjudicator decision was unreasonable as the employer under ordinary contract of
employment holds the right to terminate teh employment with cause or with reasonable
notice or with pay in lieu of notice.
2.
On the issue of procedural fairness, the court held that Dunsmuir has exercised his
right to grieve and hence no procedural fairness can be claimed.
Dunsmuir files appeal with the Supreme Court of Canada:
SCC:
SCC dismissed his appeal. Held that employer has the right to terminate without cause,
the adjudicator's decision was unreasonable.
There are only 2 standard of review i.e. Correctness and Reasonableness.
In Dunsmuir, the "pragmatic and functional approach" has been replaced by
"Standard of Review Analysis".
Under this new "Standard of Review Analysis", there will be 3 basis for according
deference:
1.
Present of a private clause.
2.
A discrete and specialized regime/legislative regime.
3.
A question of law not of general importance to the legal system OR beyond the
expertise of the tribunal.
Substantive Review
Jurisdiction & SOR are closely related.
Jurisdiction, Parliamentary sovereignty, rule of law. Constitutional bases of SR.
(all actions by government has to find a valid source of law)

Because of this value, we still allow review even with very strong and express privative
clause.
There will always be jurisdictional review. Inherent jurisdiction of the s. 96 courts
revolutionary judgment for admin law
CUPE v. NB Liquor Corp. 1979 SCC, CB 714
Facts: Local 963 was on lawful strike. During, they file complaint with the Public
Service Labour Relations Board New Brunswick. They allege management is replacing
workers with management employers. Management concedes this point. The dispute
was over one particular provision: s. 102(3) of the PSLRA-NB:
(a)the employer shall not replace the striking employees or fill their position with any
other employee
-Employer argues: with any other employee applies to both clauses, and therefore they
are allowed to replace with managers.
Board: Legislature wanted to prevent strikebreaking or picketing in public sector
workplaces. Could shut down availability of public services to Canadian citizens. Finds
in favour of union.
SCC: This question falls within the LB's jurisdiction. Not preliminary or collateral, but a
core question. The interpretation of s. 102(3) lies at the heart of the jurisdiction conferred
on the Board.
-One more argument: that the decision is so patently unreasonable, that it is
effectively outside the jurisdiction of the LB.
SCC: The ambiguity of the section is acknowledged. There isn't any one interpretation
which is correct. Must apply purposive approach. The intention is to balance power
between labour and management. Therefore the interpretation is not PU.
Revolutionary judgment: acknowledging ambiguity and interpretation goes to the Board.
Also, that one can only challenge if patently unreasonable.
Bibeault, 1988 SCC
-Don't interpret NB Liquor to mean that only a PU error can lead to an excess of
jurisdiction.
-The central question on substantive judicial is: did the legislature intend the question to
be within the jurisdiction conferred on the tribunal?
-The formal, jurisdictional approach is giving way to a pragmatic and functional
approach.
Pushpanathan, 1998 SCC, CB 790
Facts: P claimed refugee status in 1985, but his claim was never adjudicated because he
received permanent residence status shortly thereafter. Subsequently he was arrested and
convicted for narcotic offences. Renewed claim for refugee status to prevent deportation.

I.R.B.: P was not a refugee, according to Article 1 F(c): the provisions of the Refugee
convention do not apply to persons guilty of acts contrary to the purposes of the U.N.
Issue: Is it ?? that the IRB relied on Article 1 F(c) to deny P's refugee claim?

Four factors to consider:

(1)Privative Clause
-The presence of a "full" privative clause is compelling evidence that the court ought to
show deference to the tribunal's decision. (up)
-The absence of a privative clause does not necessarily imply a high standard of scrutiny.
(-)
-At the other end of the spectrum is a clause in an Act permitting appeals, which is a
factor suggesting a more searching standard of review. (down)
(2)Expertise
-If a tribunal has been constituted with a particular expertise with respect to achieving the
aims of an Act, whether because of the specialized knowledge of its decision-makers,
special procedure, or non-judicial means of implementing the Act, then a greater degree
of deference will be accorded.
-Making an evaluation of relative expertise has three dimensions: the court must
characterize the expertise of the tribunal in question; it must consider its own expertise
relative to that of the tribunal; and it must identify the nature of the specific issue before
the administrative decision-maker relative to this expertise.
-Also, more deference when interpreting their own constituent legislation. Less when
outside their core jurisdiction.
(3)Purpose of the Act as a whole and the provisions in particular
-Purpose and expertise often overlap
-Where problem require considering numerous interests simultaneously polycentricity
principle courts should show greater restraint.
-Polycentricity indicated by:
-A range of potential remedies
-Non-legal expertise required to implement aims of the legislation
-A range of administrative responses/roles of administrative agency; i.e., more than
adjudicative E.g. -Human Rights commission also educates and implements policy
-Open-textured or vague legal principles, principles involving multi-factor balancing;
i.e., decisions to be made in the public interest
-[Note there is some wiggle room. When you attach more importance to adjudicative
OR administrative roles, you influence the amount of deference owed.]
(4)The nature of the problem law or fact or mixed?
-Pure questions of law may be granted a wide degree of deference where other factors of
the pragmatic and functional analysis suggest that such deference is the legislative
intention.
-It is not easy to say precisely where the line should be drawn; though in most cases it
should be sufficiently clear whether the dispute is over a general proposition that might
qualify as a principle of law or over a particular set of circumstances.

-In the usual case, however, the broader the propositions asserted, and the further the
implications of such decisions stray from the core expertise of the tribunal, the less
likelihood that deference will be shown.
1)CB 796 s. 67(1) Not a strong privative clause, limited right of appeal (only on leave to
TD, or on certified Q to the CA). (-)
2)no expertise above the courts. (down)
3)Purpose of 1(F) is to give minimal/basic human rights protection. Not to control flow
of people. (down). Characterize as a general question of international law.
4)question of general international law (down).
Standard: CORRECTNESS
CB 791. Judicial review through certification of a serious question of general
importance.
This case is the authority for the development of the four factors.
Pragmatic & functional approach
Pragmatic because it looks at what happens in the day-to-day work of tribunals,
not just the law.
Functional because it looks at whether the tribunal is fulfilling some legislative
purpose, (and not just some internal legislative elegance purpose).
Southam,
Concept of the SOR spectrum
Dr. Q, 2003 SCC CB 819
Note: SCC appeal prompted by an unclear statement by the BCCA, an opportunity to
clarify the law on SOR.
Facts: Trial judge set aside decision to suspend Dr. Q for misconduct. BCCA upheld trial
decision: b/c lower court decision was not clearly wrong.
Held:
This is a case of judicial review, and court must apply P&F approach. (Statutory appeal
not decisive.)
-P&F approach described: whether tribunal shall receive an exacting review,
significant searching and testing, or be left to the near exclusive determination of the
decision maker
-Not to be applied mechanically. Not empty ritual.
Statutory Scheme:
-PC or right of appeal
Expertise:
look at how it is composed, what their specializations are

whether tribunal is habitually called upon to determine the same types of questions
(institutional experience giving relative expertise)
Purpose of the Act:
look to preamble of the statute
look for clues about discretion, e.g. allowing board to consider all circumstances
Nature of the problem (CB 822):
almost entirely determinative of the SOR
need a palpably incorrect error to overturn a factual finding
WHEN IS THIS DETERMINATIVE? JR, or Appellate Review?????????
Another main holding: regardless of whether it is JR, or statutory right of appeal, one
need perform P&F approach???????
Law Society NB v. Ryan, 2003 SCC, CB PG???
Facts: Two people came to see Ryan to take their case. Ryan took a small cash retainer
and agreed represented them, but lied to them and didn't do anything for 5.5 years.
LSNB receives complaint. Sets up discipline committee. They recommend disbarment.
Statutory right of appeal to NBCA. CA orders reopening of hearing to hear medical and
psychiatric hearing. They reopen, and confirm the decision to disbar. Ryan goes back to
CA. They overturn the disbarment and downgrade it to an indefinite suspension with
conditions for reinstatement.
Issue: What is the appropriate SOR?
Held:
There are only three standards of review
P& F Factors:
o Statutory right of appeal, no privative clause
o Expertise: LSNB has relative expertise.
1.practicing lawyers are more experienced with working with
clients, and are better-suited to determine whether behaviour
crosses the line.
2.there is a member of the public (layperson) on the committee.
3.repeated application of the section on sanctions give them some
degree of expertise.
o Nature of the Act:
look at the preamble: Put together an authority to regulate practice
and set professional standards. (Adjudicative.)
o Nature of the question:
This is applying the law to a set of facts
Notwithstanding the fact that there is a SRA, all other factors point toward deference.
Standard is reasonableness. Court should not substitute its view, but recognized the
legislature intended a specialized body to have primary authority on the matter.
Re remedy: SRA allows judge to substitute decision.
Re the floating spectrum/SOR: there is no spectrum, only 3 standards.

Applying the standard of review

National Corn Growers, 1990 SCC
Facts: Corn Growers argued that U.S. subsidized imports would materially harm
Canadian Corn Growers. Ontario Corn Growers Assn launches complaint under s. 31(1)
of the Special Import Measures Act, to the deputy minister of National Revenue of
Customs and Excise. Deputy Minister initiates investigation, forming a preliminary
conclusion. Deputy Minister imposes countervailing import duty. Full inquiry done by
Canadian Import Tribunal, agreeing with deputy minister. Parties apply for JR, arguing
that the CIT's recommendation is PU. The question involved the interpretation and
finding of material injury (there was no actual increase in imports from the U.S., but only
possible influence on price). Tribunal makes finding/remedy based on s. 42(1)(c)(ii).
Held: Courts agree to uphold tribunal decision, but divide on how to conduct the SOR of
PU.
Gonthier J: Whether the conclusions of the tribunal are PU. Not to look at the
conclusions makes it difficult to perform any review of the tribunal decision.
Wilson J (concurring): Whether the interpretation of the statute is PU. To perform
a detailed review of their conclusions is unlike a PU review.
Board of Education v. OSSTF, 1997 SCC CB903
Facts: B worked for the Board for about 20 years. He applied 39 times for the position
of VP. In 1994, he filed a complaint with the OHRC on the basis of ethnic
discrimination. His claim was unsuccessful. While the hearings were underway, B wrote
threatening and disturbing letters. He was asked to undergo psychiatric assessment,
where it was found there were no signs of mental illness and would be non-violent.
Second similar letter, leads to a second assessment, with the same conclusions. Board
discharges B for reasons for professional misconduct, poor judgment, and incapability to
perform duties. B files a grievance. Before the hearing starts, he writes a similar letter,
although less threatening. Arbitration Board sets Board of Ed decision aside, and decides
for conditional reinstatement. Board appeals to Div. Ct. Div. Ct. finds there was no
evidence to support a decision of conditional reinstatement. CA sides with the arbitration
board.
Issue: How shall the court apply the PU standard to the decision of the tribunal in this
case?
Held: A finding based on no evidence at all is PU.
Standards of conduct, s. 264 of the Education Act (CB 906). Court must pursue goal of
preventing teacher from returning to classroom who is incapable of fulfilling their duties.
Findings of fact of the board:
that B's conduct was temporary, and could be attributed to the stress of the
hearing.
That B was not beyond redemption
None of the evidence supported these findings.
***Seems to follow Gonthier's approach in Corn Growers.
**On exam, you might be given a board decision and have to tease out key findings of
fact.

Correctness Review
Trinity Western University, 2001 SCC
Facts: TWU, a private institution in BC, seeks recertification to teach an entire teacher
training program themselves (and to have their program reflect their Christian
worldview). BCCT refuses because it is contrary to the public interest to allow
discriminatory views to be disseminated. (TWU condemns homosexual behaviour.)
BCSC: It was not within jurisdiction of BCCT to consider these discriminatory
practices, and that there should not have been a finding of discrimination.
BCCA: BCCT does have jurisdiction, but that there was not sufficient evidence(?)
SCC: BCCT was wrong to reject the application 8:1.
Dissent: BCCT was not wrong.
Majority:
Jurisdiction question: yes it is within jurisdiction to look at whether there are
discriminatory practices. Correctness standard applies because the matter is
beyond their jurisdiction.
Was the finding of discrimination justified?
There was no evidence that graduate teachers would go on and be
discriminatory in the public school system.
Remedy: Writ of mandamus. Order to issue the certificate.
SOR Majority:
1.Privative clause-none
2.Expertise-regulated professional
3.Purpose of the act-human rights
4.Fact or law-Nature of the problem
Dissent:
SOR should be PU
no privative clause, but, expertise, polycentric, factual question.
-Mullen believes it all came down to relative expertise. The critical determination.
Others have argued the critical determination was on characterizing the issue. (This feeds
back into Mullen argument.)
-Mullen again, notwithstanding Pushpanathan, (which supposedly did away with the
jurisdictional question and advocated P&F A from the start) the jurisdictional question
lives: all members still ask jurisdictional question.
-Another criticism: the P&F A is too subjective, as court members ended up on opposite
sides of the spectrum.
Mossop, 1993 SCC CB 825
Facts: M was a government-employed translator. Took a day off to attend funeral of
father of same-sex partner. Collective agreement allowed days off for bereavement of

immediate family. M is denied leave. Grieves to union. Denied. Complaint to

CHRC. Goes to tribunal. Tribunal finds discriminatory practice. AG seeks judicial
review. FCA quashes JR. Mossop applies to SCC. Appeal dismissed. Family status is
a prohibited ground of discrimination. Correctness review on question of law.
Issue: Was the decision of the CHRC wrong ... ?
Held per Majority: Sexual orientation was not, at the time of the dismissal by employer
or time of proceedings, a prohibited ground of discrimination. By making family status
a prohibited ground, they intended not to protect sexual orientation. (Note: this is not a
Charter challenge, it is a human rights challenge.)
Dissent: Because family status was not defined, then court should take a broad,
purposive, liberal view of the term.
Reasonableness Review
Southam, SCC 1997 CB860
Facts: S owns both of Vancouver's daily newspapers. In 1989, they tried to acquire
community newspapers around Vancouver. Director of Investigation and Research
applies to Competition Tribunal for an order that Southam divest itself of some of these
community newspapers. They found a lessening of competition, and ordered divesting of
at least one community paper.
Issue: Is the decision of the tribunal entitled to curial deference? Did they act
unreasonably when the Competition Tribunal decided that the papers operated in different
markets?
CA: Tribunal failed to consider evidence that the two types of papers are functionally
interchangeable. And that Southam itself considered the other type of paper its principle
rivals.
Held, SCC: The weighing of criteria in a balancing test is a matter of discretion.
Therefore, in a reasonable review, one need not redo all of the balancing. Court would
have come to a different conclusion, but it won't quash the decision because the SOR is
reasonableness.
Chamberlain, 2002 SCC
Facts: Application to Surrey School Board to approve 3 books for teaching Kindergarten
(with themes encouraging diversity, same-sex parenting). Minister of Education sets
curriculum, and chooses the materials. Local school boards choose supplemental
materials. Board did not approve books-reasons: for fear of controversy; children are too
young; books are not necessary for learning objectives.
Issue: Is the decision of the Board reasonable?
BCSC: Quash the decision b/c it was based on religious considerations.
BCCA: Allows appeal, resurrects Board decision.
SCC: Allows appeal, finding Board's decision was unreasonable. The School Board is
elected, warranting some deference. No privative clause. Problem has human rights
dimension. Schools Act is secular, and Board violated this principle, as well as that of
tolerance. Board was exclusionary. Books would address questions that might raise in
light of fact that there are same-sex couples with K-1 age children in the community. Re

necessity of materials: they are supplemental, they do not need to be necessary. The
books promote tolerance, inclusion, and understanding of all family groups.
-Common law has long recognized that parents are in position to raise children, and that
school has delegated authority from parents as a proxy. Local school boards are elected
and serve on behalf of parents.
DS: look at Ryan, 2003, CB867. Sets out most usefully, issue of review on each of the
standards.
-Unless the party seeking review has shown the decision was unreasonable. A reasonable
decision is one that can stand up to a somewhat probing inquiry/analysis.
DS: look to the reasons of the tribunal! Try to connect those reasons and the evidence!
On correctness review, court must determine what feels it is correct (or not wrong).

Dr Q: the P&F approach applies to all administrative decision makers

???L'Hereux-Dube in Danta(sp.?)-at the end of the day, question is, who is better placed
to make this decision...the specialized agency, or the generalized court?
Policy of substantive review: Ensures effective and efficient implementation of public
services (to meet underlying legislative purposes).
Historical Context How we got into this mess in the first place
Five leading cases
NB Liquor
Developed curial deference standard formulated as patently unreasonable.
Preclusive or privative clauses, not to be interpreted literally. Clause would apply if
acting within jurisdiction. But if making purported decisions...court may intervene.
-Court should only intervene if the decision is patently unreasonable.
-Aftermath: Ontario courts, quickly take up curial deference. Other courts (e.g. FCA),
still deals with jurisdiction.
Bibeault
Re a contract for janitorial services. Was the second company a successor employee of
the first? If so, they are bound by the collective agreement...
Beetz J.: we are moving toward a pragmatic and functional approach.
Elements: preclusive clause, expertise, purpose of the statute, nature of the dispute, etc.
Standard is correctness. Why? Legal question is not within the jurisdiction of the
tribunal. (??) rev'd in Ivanhoe???
Pezim/Southam

No preclusive clause. Not labour case! Securities and competition cases,

(respectively).
No need to show error of jurisdiction.
Iacobucci: P&F approach applies even where there is no preclusive clause and a
right of appeal.
The matter is proper to the tribunal. Should only intervene if it is unreasonable.
Unreasonableness simpliciter.
Somewhat probing analysis.

Pushpanathan
stated the factors of the P&F approach
Re jurisdiction: you can label an issue jurisdictional???, but all this means is
you're taking a correctness approach under the P&F approach.
o This makes it seem that jurisdiction is unimportant. But now the SCC
says jurisdiction is one of the factors. Evans JA doesn't like this???
Baker
Why is Baker important? Because it applied to a discretionary and somewhat
informal decision of an immigration officer on behalf of the minister.
First time it was applied to such a discretionary, informal decision.
21st century
Dr. Q and Ryan
-applies to all statutory decision makers
-Also, only 3 standards
Ryan
-When conducting one of the reasonableness reviews (rs or pu), start with the reasons of
the tribunal!
-Maybe it is not the best course, but if it is reasonable, it must stand.
**The difference between rs and pu is difficult to tell! PU is a much tougher battle for an
applicant.
Easy cases on standard of review
-When reviewing DOF, no deference, SOR is fairness
-Evans J: SOR is fairness...correctness might second-guess jurisdiction.
-P&F is not relevant to fairness.
Constitutional issues
e.g. Martin v. WCBNS
-Applicant suffered serious pain as result of work-related injury. Board limited recovery
for pain. Applicant argued s. 15.
SOR: correctness!
-Also for quasi-constitutional questions, e.g. human rights.

Common law questions

-SOR is correctness. General law is not within expertise of a specialist tribunal.
General statutes (other than the enabling statute)
e.g. Levis case, where they interpreted the Municipal Act, (and the Police Act was the
enabling statute).
-No deference. SOR is correctness.
**Slight exception, if the other statute is intimately related to the function/role of the
agency
Factual questions
-it will almost never be correctness, e.g. Dr. Q, the standard was reasonableness (there
was a statutory right of appeal there).
-Rare exception: where the statutory right of appeal is a trial de novo. e.g. Trademark
Opposition Board, in trademark registrations. Appealed to the Federal Court. Parties
have a right to adduce fresh evidence. Then federal court gives no deference.
Current Unsettled Issues about SOR and the P&F Approach
& How do we make our lives simpler
Harder cases:
The hard cases are always about the interpretation of the tribunal's enabling statute, and
to a lesser extent, its application to the facts. That's the fighting ground (Evans JA).
Some guidelines: strong preclusive (privative) clauses, suggests review of PU.
Other kind of case with PU: very complex and discretionary regulatory decisions.
Segmentation
To what is the P&F or SOR being applied?
Evans: to the decision of the tribunal.
But, how far can you segment the issues before coming to its ultimate decisions?
Via Rail e.g.,
CTA found that certain rail cars purchased cheaply, which did not meet accessibility
requirements. CCD insisted the cars be significantly modified. CCD wanted one
accessible car per train. Via insisted it was too expensive even to find out how much it
would cost.
Issue before tribunal: Are these cars an undue obstacle for persons with disabilities?
They found it was an undue obstacle!
At FCA: Broke down issues.
1.public standing issue from CCD. (FCA Majority said it was a jurisdiction question), and
that Agency was correct.
2.Undue obstacle question SOR was PU.

Majority of SCC: do not segment the decision. Abella J.: do not separate the human
rights and transportation issues. CTA should bring understanding of transportation to
bear on the issue of complaint-based adjudication (??).
Minority of SCC: segment is ok.
National Corn Growers
Wilson: Don't break it apart. Look holistically.
LeBel in Toronto v. CUPE
-That there should be only two standards, correctness and reasonableness
Reasonableness: Was the decision demonstrably unreasonable?
Previously: arbitrators' interp of collective agreements, SOR was PU.
Recent, odd case: changed standard is RS --> (outrage in Lab. Rel. community)
Ont. C.A. (?) straightened it out. PU!
Alta. C.A. -time limit, 30 days for JR before final preclusive clause.
Ont. is right away preclusive.
Limits to the P&F Approach?
One other hard issue: P&F Approach applied to ALL ADMIN decision makers?
administrative decision makers What about a regulation? What about a by-law? Does
P&F apply to formulation of rules?
e.g. can we challenge by-laws using the P&F Approach?
Lastly: is there a way to make the law simpler?
-Judges to clarify the two reasonableness standards.
-OR, do what B.C. did in its major administrative law reform initiative. Administrative
Tribunals Act, ss. 58-9:
s. 58 deals with decisions of tribunals protected by preclusive clauses:
Expert tribunals ...in which it has exclusive jurisdiction under privative clause,
must not be interfered with unless PU.
Fairness or natural justice must be decided on standard of fairness.
All others = correctness (e.g. common law, another statute, constitution)
PU defined: arbitrary, bad faith, abuse discretion, irrelevant factors, failed to take
account of statutory factors.
s. 59 SOR to which ATA applies, that do not have preclusive clauses.
Correctness for all questions except:

 those respecting discretion and findings of fact (SOR is RS) or fairness in

questions of NJ or DOF.
Did they spread the correctness standard too broadly? Seems to apply to application of
statute to facts, and interpretation of enabling statute.
Purposes of Administrative Agencies of the Administrative State
Making good defects of market
Redistributing wealth
Conferring benefits not provided by common law
Judging the PF Approach
Levis (City) 2007 SCC
Facts: Police officer employed by municipality peaded guilty to several criminal
offences. Separate sanctions were provided in s. 116(6) of the Cities & Towns Act (CTA)
and s.119, para. 2 of Police Act( PA). Internal Investigation led to Municipality
dismissing him. Union filed grievance.
Arbitrator held: existence of a specific disciplinary sanction in PA required that a police
officer convicted of a Crim. Offence be dismissed SUBJECT to the possible application
of an exception limited to hybrid offences, meant that the automatic 5 yr disqualification
provided for in the CTA, which allows for no exceptions, was inapplicable.
-Found that psychological probs & alcohol abuse had led him to commit the offences and
that they constituted specific circumstances that allowed for a sanction other than
dismissal via the exception provided for in s 119 para. 2 PA.
Superior CRT set aside arb. Award.
CA Restored arb award.
SCC Bastarache for majority: Stated that 2 SEPARATE STNDS R needed multiple
SOR's needed only when there are clearly defined questions that engage different
concerns under the PF approach.
1. Q1, whether s. 119 para. 2 PA and s. 116(6) CTA R in conflict if so, which one
should prevail.
2. Q2, Whether the arbitrator properly interpreted and applied s. 119 para 2.
Q1 There is a relatively strong privative clause in Labour Code Pure question of law
that does not engage the arbitrators special knowledge of labour and employment law.
Question is of gen importance & has precedential value.
Purpose of legislation Labour Code clearly contemplates calling on arbitrators to
interpret and apply legislation...it does not follow question of compatibility of conflicting
legislative provisions was intended to be within the exclusive purview of the grievance
arbitrator, or that such a task is at the core of the object of grievance arbitration.
STND of Correctness applies.
Q2 S. 100.12(F) of the Labour Code. requires a balance of competing interests of police
officer and municipality who serves interest of public & assures public confidence
Question has some degree of precedential value the arbitrators discretion is narrower
under s. 119 para. 2 PA than it would otherwise be under Labour Code On balance, the
reasonableness STND of review is suitable for this question.

There is a clear zone where the statutes overlap and come into conflict. Both provisions
apply to the officers conduct in the instant case.
One statute provides for an exception to the rule of dismissal but the other does not.
(CONFLICT)
In the case of conflict, s. 119 PA should prevail over s. 116(6) CTA. S. 119 satisfies the
Requirement of the presumptions developed to aid in determining the legislatures intent
that it both more recent and more specific in comparison to s. 116(6) of the CTA.
IT was unreasonable for the arbitrator to conclude that the specific circumstances raised
by the police office were sufficient to satisfy the s. 199 para. 2 exception. Burden of proof
was on police officer.
The arbitrator equated his jurisdiction under s. 119 para. 2 PA to the jurisdiction he would
normally enjoy under 100.12(f) of the labour code and failed to properly weight the effect
of the police officers criminal conduct on his ability to carry out his duties; this affected
the rationality of his decision.
Deschamps & Fish Conflict definition has been given a narrow interpretation. There is
no real conflict here, - A person who is qualified to serve in both capacities must meet the
conditions of both statutes.
-Arbitrator is not entitled to review an employers decision to terminate where
terminated individual is an officer who has been convicted of an indictable offence...
Per Abella J Only 1 STND of review applicable s. 100.12(a) gives arbitrator
authority to determine how any relevant statutory provision ought to apply to it
deferential stnd applies however, the arbitrators decision is unsustainable and the
sanction of dismissal should be restored.
Via Rail, 2007 SCC
SCC Abella J for majority STND of review applicable to Agencys decision as a
whole is PU. As opposed to CA stance of applying 2 standards of review 1 being its
jurisdiction (Correctness) and the other being its interpretation of undue obstacles (PU).
Reason for only 1 review Agency made decision w/many component parts, each of
which fell squarely and inextricably w/n its expertise & mandate.
Under Part V of the CTA the Agency must identify undue obstacles to persons
w/disabilities in the transportation context in a manner that is consistent w/the approach
to identifying & remedying discrimination in HR law.
Discriminatory barrier must be removed unless there is a bona fide justification for its
retention, which is proven by establishing that accommodation imposes undue hardship
on the service provider.
VIA did not meet its onus of establishing that the obstacles created by its purchase were
not undue
Rail Code was a proper factor for the Agency to consider in its analysis.
Agency also considered Vias network and found that none of the evidence on the record
supported VIAs position that its existing fleet or network would address the obstacles...
Cost estimates were sought after however VIA never provided an in depth account as to
what it would amount to, instead were requesting a decision from the Agency be given
after agency decision in their appeal they provided one in 37 days! It is also whether the
cost constitutes undue hardship Agency did not justify a finding of undue hardship
based on financial cost.

CA stated that their Procedural Fairness was breached There are NO grounds for a
reviewing court to interfere w/Agencys decision not to wait for VIA to produce cost
estimates that VIA had repeatedly and explicitly refused to provide.
DISSENT Agency is not protected by a privative clause in respect of questions of law
or jurisdiction, and since it involves matters of HR the STND of review is correctness.
PART V of CTA grants Agency jursidiciton to deal w/undue obstacles to the mobility of
person w/disabilities must be reconciled w/prevailing HR principles.
The Agency is reqd in adjudicating applications under s. 172, to conduct an undueness
analysis: 1) the applicant must satisfy the Agency of the existence of a prima facie
obstacle to the mobility of person w/disabilities 2) the burden then shifts to the carrier to
demonstrate on a balance of probabilities that the obstacle is not undue b/c :
It is rationally connected to a legitimate objective
Carrier has opted not to eliminate the obstacle based on an honest and good faith belief
that it was necessary for the fulfilment of that legitimate objective
Not eliminating the obstacle is reasonably necessary for the accomplishment of that
legitimate objective.
The Agency erred in the law with respect to this test:
Did not acknowledge that it was REQd to identify the goals pursued by VIA in
purchasing the cars; nor did it state whether it accepted VIAs argument and evidence that
the acquisition for the cars was rationally connected to a legitimate purpose.
Efficiency and economic viability are objectives of the National Transportation Policy
under s. 5 CTA and must be considered legitimate.

Practice Exam:
Three parts:
1.characterizing the decision
2.What is the SOR?
3.Did the tribunal meet the standard?
Cite Dr. Q for P&F approach for all statutory decision-makers (although that case
involved a statutory right of appeal).
Cite Ryan for 3 standards of review.
Cite Pushpanathan for 4 factors.
Privative clause: Cite section number for privative clause!
Expertise: Cite Ryan for repeated applications.
Purpose of the Act and the provision as particular:
-Dual purpose, protect workers while...
-Provision (s. 5) as a whole...complaint mechanism.
-NB Liquor v. CUPE: are they dealing with a question that goes to the
core purpose of the tribunal?
Nature of the Question: Go the findings of the tribunal. (Whether Cheng was
employer...whether there was reasonable opportunity give submissions.)

The Cheng question seems like a legal question. The reasonable opportunity
question seems mixed. This affects the expertise and overall analysis!!
Must start with analysis of SEGMENTATION!!
Two clearly definable questions that raise different concerns on the P&F
approach (Levis).
and (LeBel in CUPE v. Toronto).
If you DON'T want to segment:
cite Abella J. In Via. (One integrated standard, etc.)
Then: weighing all factors together...
APPLYING THE STANDARD
(Southam) are the reasons supportable by logic.
Regarding the finding of the timing and the reasonable opportunity:
-If you make employees wait until harvest is completely over to make
representations, fand by the way, they leave the country at that time...then the
purpose of the statute is completely destroyed (CUPE v. NB Liquor).
-Since the standard is reasonableness, one can still say: even though we would not
have come to this answer, it is nonetheless reasonable. There is a line of analysis
between the evidence and the conclusions.
New system: direct access. Complainants have direct access to the tribunal.
Old system: Commission would take claim to tribunal. Many people felt Commission
was more of an adversary than an advocate. They became insensitive to the policy
objectives of the HRA.
Theories of regulatory ...: dynamic has to do with worker strategies in the institution. e.g.
to cope with high workload and resource limitations, time constraints. etc.
Sossin: we must be suspicious of impact of SCC decisions on public decision-makers.
The responsibility must be given to the policy makers at the tribunal, by issuing
guidelines: (softlaw).