Exceptions

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Clic Bias and Lack of Independence
INTRODUCTION:
-In this chapter, we consider in detail the SECOND LIMB of the rules of NATURAL JUSTICE or PROCEDURAL FAIRNESS: the principle that decision-makers should be
UNBIASED!
-Of course, if applied correctly, this principle would result in the disqualification of all decision-makers. After all, everyone has biases in the sense of preferences,
p[preconceptions, or predispositions. Additionally, whatever the issue for decision, adjudicators, by virtue of their backgrounds, personalities, and training, are always going
to possess tendencies to lean in one direction rather than another.
-What, therefore, is at stake is NOT disqualification for any form of bias, but the identification of what constitute impermissible biases.
-The duty to act fairly enunciated by the SCC in Nicholson must include a requirement for an unbiased decision maker.
-So, it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done (perception of the public is very
important).
-Two important branches of natural justice:
(1) Right to be heard audi alterem partem: notice, counsel, cross examination, reasons
(2) Right to have your case heard by an unbiased decision-maker (Bias) nemo judex in causa propria sua debet esse, requires that decision makers are
unbiased, impartial, and independent; no one ought to be a judge in his or her own cause
Three types of Bias:
(1) Attitudinal or non-pecuniary bias predisposition toward an outcome based on several factors, i.e. relationship with parties, preconceived views on issue in case,
there can also be institutional or structural factors that give rise to this kind of bias- things about org itself, or govt that give rise to perception of bias.
(2) Institutional or structural bias
(3) Pecuniary/material interest: If a person has financial interest in outcome (no matter how trivial), automatically disqualified from hearing the case. State of mind of
decision maker not relevant
BIAS: THE GENERAL TEST:
-The general test by the Canadian courts for the determination of whether an adjudicator or other decision-maker should be disqualified is that of a reasonable
apprehension of bias.
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Standard Test for Bias:
The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining
thereon the required information. That test is what would an informed person, viewing the matter realistically and practically and having thought the matter through
conclude.
Committee for Justice and Liberty v. National Energy Board (1978) SCC
NOTE: This is the test articulated and followed in Baker, where it is decided that bias would be perceived from Officer Lorenzs comments.
-There are 4 main disqualifying conditions that will give rise to a reasonable apprehension of bias:
(1) Antagonism during a hearing by a decision maker toward a party or his or her counsel or witnesses.
o most common manifestation is aggressive questioning or comments about testimony (i.e. Baker).
(2) An association between one of the parties and a decision maker
(3) An involvement by a decision maker in a preliminary/earlier stage of the process/decision, and
usual example is where a decision maker has in some way already heard the matter before the tribunal or been involved in the investigation and decision to proceed
with the matter being heard
(4) Attitudinal bias An attitude of a decision maker toward the outcome (see pg 86)
1) ANTAGONISM DURING THE HEARING:
-To the extent that this ground of attack is being based on the way in which the hearing is being or has been conducted, it is sometimes categorized as a denial of fair
procedures the victim has been denied the opportunity to present his or her case.
-However, the jurisprudence also classified such behaviour by a decision-maker as giving rise to a reasonable apprehension of bias.
-Its most common manifestations are unreasonably aggressive questioning or comments about testimony.
-Such conduct may also manifest an attitude toward the issue to be decided.
Yusuf v Canada (Minister of Employment & Immigration) (1991) 7 Admin. LR (2d) 86 (FCA)
Facts: members of a panel of the Immigration and Refugee Board had engaged in injudicious cross-examination (involving harassing and unfair comments) of a
Convention refugee claimant as well as directed gratuitous and irrelevant sexist comments at her.
Baker v Canada (Minister of Citizenship and Immigration)
PRINCIPLE: Antagonism may also be a problem in written or paper hearings.
2) ASSOCIATION BETWEEN PARTY AND DECISION MAKER
-A simple example of this group of cases is:
Marques v Dylex Ltd. (1977) 81 DLR (4th) 554 (Ont. Div. Ct.)
PRINCIPLE: Association between party and decision maker bias must balance the issues, i.e. time elapsed since last dealings/interaction. THUS, TIME IS A FACTOR
Facts: an employer challenged a decision of the Ontario Labour Relations Board to certify a union because one of the members of the board, who had been a lawyer
before his appointment, had been a member of a firm that acted for a union that became part of the union that was certified.
Held: challenged failed. ... must weigh certain factors in the balance ... Over a year had elapsed since he had anything to do with the union, or one of its predecessors.
Almost a year had elapsed since his connection with the law firm terminated.
3) INVOLVEMENT OF DECISION MAKER IN EARLIER STAGE OF PROCESS
-The usual situations are ones in which a decision maker has in the same or another capacity already heard the matter before the tribunal or been involved in the
investigation and decision to proceed with the matter being heard (Township of Vespra v Ontario (Municipal Board) (1983)[continued from Innisfil, annex land case])
-The leading Canadian case on the test for bias is:
Committee for Justice and Liberty v National Energy Board (1978) 1 SCR 369
PRINCIPLE: test for bias is NOT actual bias, but is a reasonable apprehension of bias.
Facts: The chairman of the National Energy Board, Crowe, had been president of Canada Development Corp. before his appointment. The applicant company, Arctic Gas
Pipeline Company, was formed in 1972 by a study group of companies who were interested in constructing a pipeline. The Canada Development Corp. became a member
of the study group in the following November. Crowe had been involved in its discussions and planning from the time the Development Corp. became a member until he left
to join the Energy Board. For example, he was a member of the management committee and joined in its decisions about ownership and routing of the proposed pipeline.
Held: the apparent commitment to the pipeline created a reasonable apprehension of bias.
Nothing turned on the fact that the member had nothing to gain or lose for it was not actual bias but a reasonable apprehension of bias that was in issue.
The vice of reasonable apprehension of bias lay in the fact that the Board member had participated in working out at least some of the terms upon which applications were
later made to the Board of which he was then chairman. The concern was that there should be no predetermination of issues by the Board or its members and here the
participation of the member in question in discussions and decisions leading to the application to the Board of one of the competing companies could not but give rise to a
reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment of the issues to be determined by the Board.
STATUTORY AUTHORIZATION (of bias)
-One of the most common responses to an allegation of bias by reason of prior involvement is that of statutory authorization.
-Before moving to deal with the problem of ATTITUDINAL BIAS, we therefore pause to consider the limits of the statutory authorization defence.
-Part of the context in which we do this are 2 decisions involving securities commissions and, in fact, these judgements not only will serve as a link to the issue of attitudinal
bias but also will introduce the possibility of constitutional challenges to statutorily authorized bias
Brosseau v Alberta (Securities Commission) (1989) 1 SCR 301
PRINCIPLE: a certain amount of bias may be allowed if permitted by statute.
Facts: The appellant contends that a reasonable apprehension of bias arose by the fact that the Chairman, who had received the investigative report, was also designated
to sit on the panel at the hearing of the matter. He objects to the Chairman's participation at both the investigatory and adjudicatory levels.
Held: No bias. So long as the Chairman did not act outside of his statutory authority, and so long as there is no evidence to show involvement above and beyond the mere
fact of the Chairmans fulfilling his statutory duties, a reasonable apprehension of bias affecting the Commission as a whole cannot be said to exist.
The maxim nemo judex in causa sua debet esse underlies the doctrine of reasonable apprehension of bias. It translates into the principle that no one ought to be a
judge in his own cause. In this case, it is contended that the Chairman, in acting as both investigator and adjudicator in the same case, created a reasonable apprehension
of bias. As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner.
As with most principles, there are exceptions.

exception One exception to the nemo judex principle is where the overlap of functions which occurs has been authorized by
statute, assuming the constitutionality of the statute is not in issue.
Administrative tribunals are created for a variety of reasons and to respond to a variety of needs. In establishing such tribunals, the legislator is free to choose the
structure of the administrative body. The legislator will determine, among other things, its composition and the particular degrees of formality required in its operation. In
some cases, the legislator will determine that it is desirable, in achieving the ends of the statute, to allow for an overlap of functions which in normal judicial proceedings
would be kept separate. In assessing the activities of administrative tribunals, the courts must be sensitive to the nature of the body created by the legislator. If a certain
degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of "reasonable
apprehension of bias" per se.
-Re W. D. Latimer Co. and Attorney-General for Ontario (1974) members of the panel assigned to hear proceedings had also been involved in the investigatory
process.
Held: the structure of the Act itself, whereby commissioners could be involved in both the investigatory and adjudicatory functions did not, by itself, give rise to a reasonable
apprehension of bias.
E.A. Manning Ltd. v Ontario Securities Commission
Held: the OSC did act outside its statutory authority in adopting Policy 1.10. The Commissioners, in effect, sought to legislate. It seems to me that the informed bystander,
to use the words of Cory J in Newfoundland Telephone, could reasonably perceive bias on the part of an adjudicator.
-In both Brosseau and E.A. Manning, much of the concern was with the way in which the respective Securities Commissions operated in an institutional sense.
-In the aftermath of these cases, and conscious of case law that dealt with problems of an institutional lack of independence, the SCC finally recognized that bias too could
be BOTH individual or personal AND institutional!
-This means that:
When a tribunal was set up in such a way as to create a reasonable apprehension of bias, the court could set aside a decision on the basis of institutional bias.
Where institutional problems were the result of internal choices about modes of operation, this intervention was on the basis of the common law.
Where the structures were statutorily provided for, as in Brosseau, the court need a constitutional or quasi-constitutional basis on which to intervene.
-Below are examples of each:
2747-3174 Qubec Inc. v. Qubec (Rgie des permis dalcool) (1996) 3 SCR 919
PRINCIPLE: overlapping of functions may be permissible, however, there must be some separation. Cannot act as both prosecutor and adjudicator. HOWEVER, a plurality
of functions in a single administrative agency is not necessarily problematic (Brosseau).
Facts: Statute sets out a complex regulatory scheme for issuing liquor permits. The Regie revoked the companys liquor permits for violations of the statute. The company
sought a declaration that various provisions of the Quebec liquor licensing statute were invalid in terms of s.23 Quebec Charter of Human Rights and Freedoms where a
tribunal is acting in a judicial or quasi-judicial fashion, it be both independent and impartial. Claim for statutory bias as a Regie lawyer could be involved in every stage.
Held: there is a reasonable apprehension of bias in this case as the lawyer is acting as a prosecutor and adjudicator. In practice, employees of the Rgie are involved at
every stage of the process leading up to the cancellation of a liquor permit, from investigation to adjudication. The annual report mentions no measures taken to separate
the lawyers involved at different stages of the process. Yet it seems to me that such measures, the precise limits of which I will deliberately refrain from outlining, are
essential in the circumstances. Bias in this case has both individual and institutional elements
In a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be
shown toward administrative tribunals.
I note at the outset that a plurality of functions in a single administrative agency is not necessarily problematic. This Court has already suggested that such
a multifunctional structure does not in itself always raise an apprehension of bias (Brosseau).
Although an overlapping of functions is not always a ground for concern, it must nevertheless not result in excessively close relations among employees involved in
different stages of the process. The lack of separation of roles within the Rgie des permis d'alcool was the principal basis for the Court of Appeal's decision in the present
case, which means that a thorough review of its institutional structure will be necessary.
McBain v Canada (Human Rights Commission) (1985) 22 DLR (4th) 119 (FCA)
PRINCIPLE: A reasonable apprehension of bias exists if a Commission/tribunal prosecutes and appoints the members who are to hear the case.
Facts: McBain sought a declaration that the legislation violated the Charter and the Bill of Rights because the arrangements specified by the Act for appointment of the
tribunal created an apprehension of bias. He argued the Commission investigated, made findings of substantiation and then prosecuted the complaint; the very same
Commission also appointed the Tribunal members who heard and decided the case adversely to the appellant/applicant. Such a scheme violates the principle that no one
will judge his own cause since it cannot be said that there is any meaningful distinction between being your own judge and selecting the judges in your own cause.
Accordingly, the scheme is inherently offensive and gives rise to a reasonable apprehension of bias thereby violating the principles of natural justice.
Held: reasonable apprehension of bias where the prosecutor of the Human Rights Commission also selected the members of the panel which would adjudicate the matter.
In my view, the apprehension of bias also exists in this case because there is a direct connection between the prosecutor of the complaint (the Commission) and the
decision-maker (the Tribunal). That connection easily gives rise, in my view, to a suspicion of influence or dependency. After considering a case and deciding that the
complaint has been substantiated, the "prosecutor" picks the Tribunal which will hear the case. It is my opinion that even if the statute only required the Commission to
decide whether there was sufficient evidence to warrant the appointment of a Tribunal, reasonable apprehension of bias would still exist.
ATTITUDINAL BIAS (the 4th main disqualifying condition)
-In this first case, we consider is one about the mechanisms for awarding tenure at a university.
-To the extent that that process is one which involves ongoing peer evaluation, colleagues, who are responsible for the actual collection and assessment of data and
opinion and for making recommendations based on that and their own views, will have had a prior involvement in the matter.
-In so far as this is an inevitable part of the whole process, what also becomes relevant in this context is the issue of implied statutory authorization or, put another way, a
consideration of the extent to which the exigencies of statutory context dictate a movement away from normal standards and tests for bias.
Paine v University of Toronto (1981) 131 DLR (3d) 325 (Ont. CA)
PRINCIPLE: No apprehension of bias where a tenure members of a tenure committee had already made up their mind about an individual since that is a normal reaction in
the ordinary course of employment.
Facts: Paine, an assistant professor in the Fine Arts, applied for JR following the denial of his application for tenure.
Held: no bias.
-Weatherston JA: I think this is not a case where the Court should intervene to substitute its own views for those of the review committees.
As a matter of course, members of the tenure committee, who are composed of tenured members of the professional staff, must all, in the course of
their association with the candidate, have formed general opinions as to his suitability for tenure. Thus, it makes little difference whether that opinion was expressed before
or at the meetings of the committee. ... The tenure committee does not sit as a tribunal, acting only on the evidence placed before it. The members act on their own
knowledge of the candidate, as well as the assessments and references that are provided to them.
o Thus, the type or composition of the committee is important when dealing with bias.
Only need 5 of 7 members to agree. However, 0 agreed here.
-Mackinnon ACJO: I agree with Weatherston.
There is no complaint about the conduct or procedures of those hearings, only with the results.
The parties to the instant appeal had contractually agreed to have their domestic disputes resolved in a certain way.
This is not, in my view, the exceptional

exception case in which there is manifest error on the part of the appeal tribunals nor is it a flagrant case of injustice at any level of the
proceedings which demands the Court interfere.
Note: in requiring that the applicant in such cases demonstrate manifest unfairness or flagrant violations of procedural fairness, the Ontario CA appears to be adopting a
higher threshold for judicial intervention than is normally applied in procedural unfairness cases.
Great Atlantic & Pacific Co. of Canada v Ontario (Human Rights Commission) (1993) 12 Admin. LR (2d) 267
PRINCIPLE: A personal complainant before the commission that is also prosecuting a similar case on the same commission gives rise to a reasonable apprehension of
bias.
Facts: Both A&P and the union unsuccessfully motioned the Board raising issues of institutional bias on the part of the Commission, delay and lack of jurisdiction. The
board consisted of Professor Backhouse, who was both a famous advocate against sex discrimination and also a party to an outstanding complaint before the Commission
in which allegations similar to those of G were made (Osgoode had violated code by reason of systemic sex discrimination). A&P and the union sought an order quashing
the proceedings of the Board on the ground of reasonable apprehension of bias. They also sought judicial review of all the rulings of the Board on the preliminary motions.
Issue: the background of Backhouse as an advocate in matters and issues involving sex discrimination, and her involvement in another proceeding before the
Commission.
Held: reasonable apprehension of bias. By becoming a personal complainant before the very commission that was prosecuting the similar case before her, she personally
selected one of the parties before her as her own advocate to pursue her personal complaint about the same issue.
It is trite (lacking in freshness or effectiveness because of constant use or excessive repetition) to state that simple justice requires a high degree of neutrality. We do
not think that would be attained if Backhouse was to continue as the Board. In our opinion, the appropriate test has not been met.
o National Energy Boardtest reasonable and right-minded person.
Large v Stratford (City) (1992) 9 OR (3d) 104
PRINCIPLE: Just because one has experience with an issue (an advocate), it will NOT necessarily disqualify him/her from deciding a case on the same issue.
Facts: The appellant (employer) argues that board chair, Professor Kerr, was biased as evidenced by his public statements as president of the Canadian Association of
University Teachers, after he released his decision in this case. The professor took a public position on a public issuethe general desirability of mandatory retirement.
Held: there is no evidence of any reasonable apprehension of bias on the questions to be decided by the chair of the board of inquiry.
These comments do not violate the well-established standards of administrative neutrality. Human rights inquiry boards are drawn from those who have some
experience and understanding of human rights issues. To exclude everyone who ever expressed a view on human rights issues would exclude those best qualified
to adjudicate fairly and knowledgeably in a sensitive area of public policy.
PECUNIARY AND OTHER MATERIAL INTERESTS
-The common law has always treated a direct pecuniary or other material interest in the outcome of a matter as disqualifying an adjudicator or decision-maker
automatically.
-For the longest time, it was accepted that even the slightest whiff of a financial interest was sufficient to disqualify.
-Our illustrative modern case is stated below in Energy Probe.
-The various judgements revisit the question whether DIRECTNESS is indeed the appropriate standard to apply in deciding whether a material interest is disqualifying and,
if so, what constitutes a direct interest.
-What is also suggested is that, to the extent that an interest is not direct, it may nevertheless still be relevant and have to be dealt with by reference to the normal tests for
identifying disqualifying bias.
-The case, therefore, also revisits the general standards by which courts consider challenges to adjudicators on the basis of a perceived bias.
-Finally, to the extent that the licensing function of the AECB had previously been held to be administrative (rather than judicial), Energy Probe deals with the issue
whether the threshold for the application of the principle of unbiased decision making has been lowered as a consequence of Nicholson to the same extent as it was
lowered for claims to other procedural entitlements.
Energy Probe v Canada (Atomic Energy Control Board) (1984)
PRINCIPLE: interest must NOT be too remote to be a pecuniary interest.
Facts: AECB proposed to renew the operating licence for a nuclear generating station, operated by Ontario Hydro; Energy Probe made some objections, including an
objection to participation by board member, Mr. Olsen, who was the president of a company that supplied cables to nuclear power plants and was a member of several
organizations that supported the use of nuclear power. Energy Probe JRd the decision.
Issue: did Mr Olsen have a pecuniary interest in the outcome of that decision sufficient to constitute pecuniary bias as that term has been defined?
Held: Mr Olsens interest was indirect and uncertain and too remote to constitute either direct pecuniary interest or bias. Marceau J concurred, but asserted that his
reasons differed the pecuniary interest was far too remote and uncertain to have been a cause for Mr Olsens disqualification.
The rule relating to pecuniary bias, as it has been articulated, is that a direct pecuniary interest, no matter how trivial, will constitute bias (Mullan text).
Reed J
But, I can find no direct pecuniary interest, as that concept has been defined in the jurisprudence, held by Mr. Olsen at the date of the hearings in question. There was
no contract conditionally in effect pending the outcome of the new licences to Ontario Hydro. There was no certainty that Mr. Olsen would sell additional cables to Ontario
Hydro for the Pickering units, during the life of the new licence. Also, it was admitted by counsel for the applicant that the purchase of such cables by Ontario Hydro was
through a tendering process. The most that could be said of Mr. Olsen as of the date of the hearing was that he could entertain a reasonable expectation of pecuniary gain
as a result of approval of the licences.
All of the jurisprudence respecting pecuniary bias that I have seen involves individuals who at the date of the hearing held some sort of direct relationship with the
beneficiary of the decision such that pecuniary benefit might with certainty arise even though that benefit might be minuscule. ... Mr. Olsen, however, did not stand in a
direct and certain relationship with Ontario Hydro at the date of the licensing decisions.
Marceau J
I do not think that the word direct, when used by the judges and the textbooks to qualify the interest required to constitute the peremptorily disqualifying pecuniary
bias, should be given such a strict and narrow interpretation that any indirect or uncertain advantage would not have to be considered; the word in my view, is used in the
sense of not too remote or too contingent or too speculative.
... there is no reason to draw a distinction between direct and indirect or certain and uncertain as regards the monetary benefit the adjudicator could expect from his
determination. The only rational requirements are that the benefit come from the decision itself and that it be a likely enough effect to colour the case in his eyes.
... the licences were only operating licences and Mr Olsens company could expect no extra business and obviously no gain as a result of their approval. The mere
possibility that a profit could be realized in the future out of other contracts awarded in the course of construction of other units was no doubt too alien, contingent and
remote to constitute pecuniary bias.
... to operate disqualification, the pecuniary interest ought to be more immediate and certain and the non-pecuniary interest must give rise to very substantial grounds
for apprehending lack of objectivity.
NOTE: SCC has confirmed that the nature of the decision (i.e. judicial vs. administrative or quasi-judicial) is not going to affect whether you have a right to an unbiased
decision-maker but that right must be calibrated to the circumstances (i.e. nature of the particular agency and nature of the particular decision). Statutes can authorize a
higher level of acceptability for bias.
VARIATIONS IN STANDARDS FOR BIAS
-An indicated by Marceau in Energy Probe, with the extension of the rules against bias to decision-makers not previously subject to the rules of natural justice has come a
heightened realization that, just as with the audi alteram partem principle, the standard of what constitutes disqualifying bias may vary dramatically with context.
-This is particularly so in the arena of prior involvement with and attitudes toward the matter to be decided.
-Municipal councillors are subject to a higher threshold of bias due to being elected:
Old St. Boniface Residents Assn. Inc. v Winnipeg (City) (1990) 3 SCR 1170 (Man.)
PRINCIPLE: Some degree of pre-judgement is inherent in the role of a councillor. Statements which may give rise to an appearance of bias must be the final
opinion in order to constitute bias. To establish bias in municipal councillors the onus is on the part alleging the bias to establish AND there is a higher bias
threshold to pass for Municipal councillors since they will develop opinions on matters as they appear before them AND reasonable apprehension of bias test
applies.
Facts: Winnipeg approved a proposed land development in Old St. Boniface, and adopted the recommendations of the Finance Committee ... and the City Council that the
land in question be rezoned to permit the erection of two condominiums, certain streets be closed and that the streets, together with other city-owned land, be sold to the
developer. Municipal councillor Savoie had been personally involved in the planning of the proposed development and appeared as advocate in support of the application
at in camera private meetings of the Finance Committee.
Issue: the appellant contends that the audi alteram principle applies in its full vigour to members of a municipal council when deciding whether to vote in favour of a by-law.
Thus, was the municipal councillor disqualified by reason of bias (due to his involvement in the proposed development) from participating in the proceedings of the
Community Committee.
Held: No bias, the appeal on this ground must therefore fail. The audi alteram principle is not violated by Municipal councillors since some prejudgement is inherent in the
role of a municipal councillor. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the
court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. To establish bias in municipal councillors the onus is on the part
alleging the bias to establish.
It is therefore necessary to examine all the factors under which a committee of Council operates:
-Court must classify tribunal as:
1) judicial;
2) quasi-judicial;
3) administrative;
4) executive.
-To classify framework, the court must make reference to all the circumstances under which the tribunal operates.
-City Councils = the executive function; different standards for bias.
... in the preparation and processing of a development, a municipal councillor is often involved in assisting parties supporting and opposing the
development with respect to their presentations. In the course of this process, a councillor can and often does take a stand either for or against the
development. This degree of prejudgment would run afoul of the ordinary rule which disqualifies a decision-maker on the basis of a reasonable apprehension
of bias. Accordingly, it could not have been intended by the Legislature that this rule apply to members of Council with the same force as in the case of other
tribunals whose character and functions more closely resemble those of a court.
o Higher bias threshold to pass for Municipal councillors.
I would distinguish between a case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other. It is apparent from the
facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor. That is not the case in respect of interest.
o This submission would have substance if there was something to suggest that the Councillors support was motivated by some relationship with or interest in the
developer rather than in the development. The evidence shows, however, that he had previously supported the development on its merits and there is no evidence that
suggests any relationship with the developer. Furthermore, the judge of first instance found as a fact that the Councillor had no such interest.
It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common
with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so
related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly
referred to as a conflict of interest.
Alleging bias:
-The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which
has been adopted, would be futile.
-Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are
the expression of a final opinion on the matter, which cannot be dislodged.
It was error, therefore, for the learned judge to apply the reasonable apprehension of bias test. This test would have been appropriate if it had been found that the
Councillor had a personal interest in the development, either pecuniary or by reason of a relationship with the developer. In such circumstances, the test is that which
applies to all public officials: Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the officials public duty? If that
duty is to hear and decide, the test is expressed in terms of a reasonable apprehension of bias. As I have stated above, there is nothing arising from the political and
legislative nature of a councillor's duties that requires a relaxation of this test. The situation is quite distinct from a prejudgment case. In this case no personal interest exists
or was found and it is purely a prejudgment case. Councillor Savoie had not prejudged the case to the extent that he was disqualified on the basis of the principles outlined
above.
Nature and functions of a municipal body:
-Nature and functions of a municipal body and their influence on the rules of natural justice have been examined:
Re Cadillac Development Corp. Ltd. (1973)
regard must be had to the nature of the body reviewing the matter. A municipal council is an elected body having a legislative function within a limited and
delegated jurisdiction. Under the democratic process the elected representatives are expected to form views as to matters of public policy affecting the
municipality. Indeed, they will have been elected in order to give effect to public views as to important policies to be effected in the community.... They are
not Judges, but legislators from whom the ultimate recourse is to the electorate. Once having given notice and fairly heard the objections, the Council is of course
free to decide as it sees fit in the public interest
Save Richmond Farmland Society v Richmond (Township) (1990) 3 SCR 1213 (BC)
PRINCIPLE: If the decision maker is at the legislative end of the spectrum = higher threshold to establish a reasonable apprehension of bias. Such a decision-
maker is entitled to bring a closed mind to this decision-making process, provided that the closed mind is the result not of corruption, but of honest opinions
strongly held. Thus, MORE deference to elected municipal officials, lower threshold for bias.
Facts: M, an alderman, gave an interview to the press in which he allegedly said that, while he would listen attentively at the public hearing, he would not change his mind.
While the public hearings were proceeding, he appeared on a television show and advocated residential zoning, stating that it would take something significant for him to
change his mind though he would be interested to see what emerged in the balance of the hearings. Richmond Farmland Society petitioned for JR for an order preventing
M from voting and further participation because of a disqualifying reasonable apprehension of bias.
Issue: the issue raised by this appeal is that of defining what standard of fairness is owed to the participants in this hearing process. This poses the problem of defining in
what capacity the council acts when conducting a zoning by-law hearing mandated by the noted section.
-Appellants argument: council acts in a quasi-judicial capacity.
-Respondents argument: council acts in its legislative capacity, stressing the high policy content of the decision to change the zoning of the lands in question.
Held: Clearly, in this instance, the decision-making process is to be located at the legislative end of the spectrum. Accordingly the threshold test for establishing bias should
be a very high one. In my view, Southin J.A. is correct in her view that a decision-maker is entitled to bring a closed mind to this decision-making process, provided that the
"closed mind is the result not of corruption, but of honest opinions strongly held".
Southin JA a closed mind (provided it is not a corrupt mind) should not disentitle an alderman from participating in the electoral process.
In the final analysis, I think that the association's position is an unrealistic one in the case of a hearing that is mandated in order to consider a rezoning "initiated by
Council itself and driven by policy". A community plan or a comprehensive zoning by-law represents a general statement of the broad objectives and policies of the local
government respecting the form and character of existing and proposed land use (see s. 945(1) Municipal Act), and the adoption of such a measure is less a judicial
process than a legislative one. The aldermen who participate in such a process should be viewed accordingly not as judges, but as elected representatives who are
answerable to the concerns of their constituents.
Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities) (1992) 1 SCR 623 (Nfld.)
PRINCIPLE: the further the progression of stages (i.e. investigative ... hearing), the greater the requirement for no apprehension of bias. An advocate of a
particular issue is fine to sit on a board hearing the same issue when its a Public Commissioner. Nature of Admin. Board reflects amount of deference AND the
composition of Boards should reflect society and may contain advocates for issues.
Facts:Wells, member of utility board, goes way over the top in ranting publicly against the potential pay raise of all them fat cats of the provincial utility when this is
precisely the issue he is to decide. He is a champion of consumers rights complaining that high executive salaries drives up costs of telephone services to consumers.
When the hearing commenced, the appellant objected to Wells participation on the panel on the grounds that his statements had created an apprehension of bias.
Issue:reasonable apprehension of bias of board member?
Held: hearing proceeded unfairly and was invalid. Although Wells statements did not create a reasonable apprehension of bias at the investigative stage, they did so at the
hearing stage.
Composition/Function of Administrative Boards:
-The composition of boards can, and often should, reflect all aspects of society.
-Members may include the experts who give advice on the technical nature of the operations to be considered by the Board, as well as representatives of government and
of the community.
-There is no reason why advocates for the consumer or ultimate user of the regulated product should not, in appropriate circumstances, be members of
boards.
-No doubt many boards will operate more effectively with representation from all segments of society who are interested in the operations of the Board.
-Nature of Administrative Boards
It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the
standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with
regard to their decision.
At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal
councillors. With those boards, the standard will be much more lenient. Administrative boards that deal with matters of policy will be closely comparable to the boards
composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been
entrusted to them by the legislature.
-Board of Commission of Public Utilities
Public Utilities Commissioners, unlike judges, do not have to apply abstract legal principles to resolve disputes. As a result, no useful purpose would be served by
holding them to a standard of judicial neutrality. In fact to do so might undermine the legislature's goal of regulating utilities since it would encourage the appointment of
those who had never been actively involved in the field. This would, Janisch wrote, result in the appointment of "the main line party faithful and bland civil servants".
Certainly there appears to be great merit in appointing to boards representatives of interested sectors of society including those who are dedicated to forwarding the
interest of consumers.
Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong
opinions prior to the hearing. This does not of course mean that there are no limits to the conduct of board members. Administrative boards that deal with matters of policy
will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might
undermine the very role which has been entrusted to them by the legislature.
o The decision-making process of this Board will come closer to the legislative end of the spectrum of administrative boards than to the adjudicative end.
o It can be seen that the Board, pursuant to s. 79, has a duty to act as an investigator with regard to rates or charges and may have a duty to act as prosecutor and
adjudicator with regard to these same expenses pursuant to ss. 83, 85 and 86.
Bias at different stages of hearing:
During the investigative stage, a wide licence must be given to board members to make public comment. As long as those statements do not indicate a mind so
closed that any submissions would be futile, they should not be subject to attack on the basis of bias.
o The statements made by Mr. Wells before the hearing began on December 19 did not indicate that he had a closed mind.
o However, should a commissioner state that, no matter what evidence might be disclosed as a result of the investigation, his or her position would not change, this would
indicate a closed mind.
Once the matter reaches the hearing stage a greater degree of discretion is required of a member. Although the standard for a commissioner sitting in a hearing of
the Board of Commissioners of Public Utilities need not be as strict and rigid as that expected of a judge presiding at a trial, nonetheless procedural fairness must be
maintained. The statements of Commissioner Wells made during and subsequent to the hearing, viewed cumulatively, lead inexorably to the conclusion that a reasonable
person appraised of the situation would have an apprehension of bias.
o His statements give a clear indication that not only was there a reasonable apprehension of bias but that Mr. Wells had demonstrated that he had a closed mind on the
subject.
Summary:
-At the investigative stage, the "closed mind" test was applicable.
-Once matters proceeded to a hearing, a higher standard had to be applied.
-Procedural fairness then required the board members to conduct themselves so that there could be NO reasonable apprehension of bias.
-The application of that test must be flexible. It need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative
capacity.
-This standard of conduct will not, of course, inhibit the most vigorous questioning of witnesses and counsel by board members.
-Wells' statements, however, were such, that so long as he remained a member of the Board hearing the matter, a reasonable apprehension of bias existed.
-It follows that the hearing proceeded unfairly and was therefore, INVALID!
Notes:
-Suppose that Wells had in fact conducted himself as Cory J suggested. That is, suppose that he made his opposition very clear and public until the stage of hearing the
matter had been reached and had then shut up.
-Would a reasonably informed bystander have any less reason to suspect that Wells views were continuing to operate on his judgment?
Application of test in Baker:
It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the
type of function performed by the administrative decision-maker involved. The context here is one where immigration officers must regularly make decisions that
have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than
decisions of a general nature. They also require special sensitivity.
-The Newfoundland Telephone case illustrates the tension between the desire of members of agencies with a public interest mandate to be accessible and transparent to
the media, and through the media, to the public and the right of parties to agency proceedings to a hearing dew of actual or apparent bias.
-In reading the following judgement in Pelletier, which involved a claim for apprehended bias by a former prime minister and his chief of staff against the retired Superior
Court judge heading a commission of inquiry into the alleged mismanagement of government funds, ask yourself whether transparency and fairness in such a context are
irreconcilable.
-Significantly, the extensive media coverage of the commission of inquiry and the commissions findings played no small part in the minority Liberal governments electoral
defeat in Jan 2006.
________________Pelletier v Canada (Attorney General [2008]_______________________
PRINCIPLE: Where a reasonable apprehension of bias standard is appropriate its application must be flexible. AND It is NOT the role of decision-makers to become
active participants in the media (even in public inquiries where the purpose of the proceedings is to educate and inform the public)
Facts: The respondent was appointed by Order in Council in 2001 to hold office during pleasure for a fiveyear term pursuant to subsection 105(6) of the Financial
Administration Act (FAA) but was terminated before his term expired. On judicial review, the first termination order was set aside by the Federal Court because procedural
fairness required that the respondent be informed of the reasons for termination and have an opportunity to be heard. Thereafter, the Minister of Transport at the time
invited the respondent to provide reasons as to why he shouldnt be terminated and subsequently met with the respondent. A second termination order was adopted three
weeks later. On appeal, the Federal Court of Appeal upheld the Federal Courts decision regarding the first termination order. The second termination order was set aside
on judicial review on the grounds that the second termination was illegal and because there was a reasonable apprehension of bias on the part of the appropriate Minister.
Issues: The issues were: (1) whether the appropriate Minister had an obligation to consult the Board of Directors of VIA Rail before terminating the respondent; and (2)
whether the Federal Court erred in applying the highest standard of procedural fairness regarding the second termination order (3) Did the Commissioner breach the duty
of procedural fairness?
Held: Appeal allowed. A flexible application of the reasonable apprehension of bias test is to be used in this case. As a result of my findings that there existed a reasonable
apprehension of bias on the Commissioner toward the Applicant, the findings in the Report, as they relate to the Applicant, MUST BE set aside. This is consistent with the
SCC decision in Newfoundland Telephone where it was held that, where a reasonable apprehension of bias is found to the extend on the part of a tribunal, its decision
MUST be treated as VOID.
AND I find that the Commissioners conduct outside the hearing room had a detrimental effect on the fairness of the proceedings in that the applicant was put in a position
in which he was caused to appear before a Commission that had publicly questioned the conduct and integrity of witnesses.
AND the media is not an appropriate forum in which a decision-maker is to become engaged while presiding over a commission of inquiry, a trial, or any other type of
hearing or proceeding. Indeed, only appropriate forum in which a decision-maker is to become engaged is within the hearing room of the very proceeding over which he or
she is presiding.
Was there a reasonable apprehension of bias on the Commissioners part toward the Applicant?
-Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker (Baker).
-The standard of impartiality expected of a decision-maker is variable dependent on the role and function of the decision-maker involved (Newfoundland Telephone).
-A-G argues - the Commission falls between the middle and closed-mind end test of the Newfoundland Telephone spectrum and argues that the applicable test is
whether there is a reasonable apprehension that the Commissioner would reach a conclusion on a basis other than the evidence
- Applicant Pelletier argues the test for assessing Commissioner Gomerys impartiality is the reasonable apprehension of bias test or reasonable person test
established in Committee for Justice and Liberty. Pelletier argues that because the Commissioner in this case was selected because of his skills as a judge,
although he was sitting as a Commissioner in the hearings, he should be held to the same standard of judicial neutrality expected of a judge presiding over a trial.
-Thus, The Commissioners experience as a judge does not necessarily follow that his impartiality is to be assessed using a strict application of the reasonable
apprehension of bias test. Using a flexible application of the reasonable apprehension of bias test, I adopt the test enunciated in Committee for Justice and
Liberty.
So,
-The CAs reliance on the Baker analysis can be linked back to the SCCs analysis in Newfoundland Telephone.
-Where a reasonable apprehension of bias standard is appropriate (i.e. once a matter has proceeded to a hearing), the SCC noted that its application MUST BE
FLEXIBLE less strict for a board dealing with policy matters than an adjudicative board.
INDEPENDENCE (institutional level and independent level)
-Independence is the extent to which the statutory scheme renders the decision maker free from control or influence.
-At an institutional level independence looks at how the particular agency or board has been set up.
-At an independent level it is the extent to which a tribunal member is able to decide free from other members and from those who appointed them.
Sethy v. Canada (Minister of Employment and Immigration) (1988) FCA
PRINCIPLE: A claimant cannot claim members of a tribunal to be bias simply on the speculation that they want to satisfy/impress the Minister in order to be reinstated.
Facts: Sethy claims for immigrant status shortly after proposed legislation was introduced which created a new agency and all of the dismissed members were eligible for
appointment. Sethy argues that this makes the members biased as they will be trying to please govt so they are appointed to new board.
Held: no lack of independence because this assumes that the government wants to deny all immigration applications even when they have a legal claim which is not true
AND Policy decision if this is upheld as lack of independence, govt would never be able to release draft legislation which is part of being open with the public and getting
the public input
Principles of Independence (Valente):
1. Security of tenure - The essence of security of tenure for the purposes of s. 11(d) is a 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.
2. Financial security the essence is that 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.
3. Institutional independence the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial
function. (i.e. appointment of tribunal members)
NOTE: administrative tribunals are subject to Valente principals, 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 the nature of the tribunal, the interests at stake, and other indices of independence (Matsqui).
Statute
Charter, s.11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
Alex Couture Inc. v Canada (Attorney-General) (1991) 83 DLR (4th) 577
PRINCIPLE: The test or criterion for assessing the independence of the judge or tribunal must be the one of reasonable apprehension of bias proposed in National
Energy Board (Le Dain J).
The test for institutional impartiality is the same as the test adopted in the Valente case with respect to the issue of judicial independence, that is the apprehension of
an informed person, viewing the matter realistically and practically, and having thought the matter through.
The fact that a judge is part-time does not in or of itself raise a reasonable apprehension of bias. However, the activities in which a judge engages when
he is not sitting may give rise to such an apprehension.
Held: The Competition Tribunal therefore meets all the requirements of the constitutional guarantee of an independent and impartial tribunal under s.11(d). The mechanism
adopted in the Act therefore ensures the right to a fair hearing in accordance with the principles of fundamental justice so that the tribunal definitely possess all the
essential attributes of an independent and impartial tribunal.
Doman v British Columbia (Superintendent of Brokers) (1996)
PRINCIPLE: to the extent that the commission obtains its funds from fines and awards of costs, there is at least an argument that it has a financial stake in the outcome of
all of its proceedings.
Canadian Pacific Ltd. v Matsqui Indian Band (1995) 1 SCR 3
PRINCIPLE: Valente principles apply to tribunal adjudicating a case. The level of independence to apply will vary according to nature of tribunal and interests at stake, i.e.
property taxes = flexible approach. Reaffirms Valente test of 3 indicators.
Facts: Under Indian Act, Bands have authority to determine tax on reserve. Tax regime includes a method of appeal for those who disagree with tax assessment. Matsqui
band created two internal levels of appeal, which would be followed by appeal to Federal court on questions of law. Structure was such that members of appeal tribunals
could be paid, but need not be. There was also no tenure of office. Dispute arose with 2 corporations that had land in the reserve and who disagreed with their tax
assessment sought JR of the bylaws.
Issue:Did the appeals tribunal lack independence? Does a reasonable apprehension of bias exist because tribunal members may not be paid, lack security of tenure, and
are appointed by the Band Chiefs and Councils?
Held: Appeal dismissed. 5-4 said the appeal tribunals lack sufficient independence following the Valente principles. In my view, even a flexible application of the Valente
principles leads to the inevitable conclusion that a reasonable and right-minded person, viewing the whole procedure in the assessment by-laws, would have a reasonable
apprehension that members of the appeal tribunals are not sufficiently independent. I am not saying that any one of these factors, considered in isolation, would have led
me to the same conclusion.
More flexible standard due to issue of property assessment not huge interests at stake.
Does natural justice apply to Aboriginal affairs?:
In my view, principles of natural justice apply to the bands' tribunals as they would apply to any tribunal performing similar functions. The fact that the tribunals have
been constituted within the context of a federal policy promoting Aboriginal self-government does not, in itself, dilute natural justice.
Application of the Valente principles:
Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an
adjudicative body settling disputes and determining the rights of parties.
The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the
interests at stake, and other indices of independence such as oaths of office.
o In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person of a party (such as the
Immigration Adjudicators in Mohammad), a more strict application of the Valente principles may be warranted. In this case, we are dealing with an administrative tribunal
adjudicating disputes relating to the assessment of property taxes. In my view, this is a case where a more flexible approach is clearly warranted.
-Independence test:
The Valente principles must be considered in light of the nature of the appeal tribunals themselves, the interests at stake, and other indices of independence, in
order to determine whether a reasonable and right-minded person, viewing the whole procedure as set out in the assessment by-laws, would have a reasonable
apprehension of bias on the basis that the members of the appeal tribunals are not independent.
Application of the Valente principles to Matsqui Indian Band:
(1) Security of tenure it is either completely absent (Siska) or ambiguous and therefore inadequate (Matsqui).
The Siska Band could, if it wished, appoint tribunal members on an ad hoc basis, since there is no requirement that members be appointed for a specific term. Siska
could then refuse to re-appoint members who reached decisions contrary to the interests of the band.
In all cases, it would appear that tribunal members may be removed from their positions at any time by the bands, which leaves open the possibility of considerable
abuse.
(2) Financial security complete absence of financial security for members of the tribunals.
Thus, there is nothing to prevent the Band Chiefs and Councils from paying tribunal members only after they have reached a decision in a particular case, or not
paying the members at all.
(3) Institutional independence the Siska By-law is silent on all aspects of the appointment of tribunal members. Effectively, the tribunal members must determine the
interests of the very people, the bands, to whom they owe their appointments.
the Chiefs and Band Councils select the members of their tribunals, in addition to controlling their remuneration and tenure. This fact contributes to the appearance
of a dependency relationship between the tribunal and the band, particularly in the case at bar where the interests of the band are clearly at odds with the interests of the
respondents. In fact, both the Matsqui and Siska by-laws allow the bands themselves to be parties before their respective tribunals.
The respondents are thus faced with presenting their case before a tribunal whose members were appointed by the very Band Chiefs and Councils who oppose their
claim. This raises a problem similar to that addressed in MacBain, supra. In that case, the Federal Court of Appeal found a reasonable apprehension of bias where the
prosecutor of the human rights infringement (i.e. the Human Rights Commission) also selected the members of the panel which would adjudicate the matter. This case,
though not identical, raises the similar concern that a party should not be required to present its case before a tribunal whose members have been appointed by an
opposing party.
Appellants argument: The appellants rely heavily on the fact that members of the appeal tribunals are required to take an oath of office that they will be impartial.
This is one factor to take into account in assessing the independence of an administrative tribunal. However, the fact that an oath is taken cannot act as a substitute for
financial security or security of tenure. The Valente principles are flexible in their application to administrative tribunals, but they cannot be ignored.
-Sopinka (dissent): I do not disagree with the Chief Justice that the band taxation tribunals must comply with the principles of natural justice, but without a clear
understanding of the relevant, operational context, these principles cannot be applied. ... Case law has thus tended to consider the institutional bias question after the
tribunal has been appointed and/or actually rendered judgment.
Thus, Sopinka believes that the Councils should have first actually composed the tribunals and then decide if the Valente principles were breached.
Although the structure might appear to give rise to a reasonable apprehension of bias, the concerns might be laid to rest by the way in which the tribunals operate in
practice.
-Deference to Aboriginals:
Nowegijick v. The Queen (1983) 1 SCR 29
a case involving interpretation of the Indian Act tax exemption rights: It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It
seems to me, however, that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.
This principle was affirmed by La Forest J. in:
Mitchell v. Peguis Indian Band (1990) 2 SCR 85
also in the tax exemption rights context: . . . it is clear that in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it
is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating
them.
-We now return to a case in which the issues of security of tenure and institutional independence from government were considered.
2747-3174 Quebec Inc. v Quebec (Regie des permis dalcool) (1996) 3 SCR 919
PRINCIPLE: Fixed term was sufficient to satisfy institutional independence for security of tenure (possession or residence).
Held: court finds the way that the Rgie operated in practice led to a reasonable apprehension of bias in an institutional sense (not important).
Issue: security of tenure.
Fixed term met threshold: the minimum requirements of independence do not require that all administrative adjudicators, like judges of courts of law, hold office
for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive.
This was enough to protect the Rgie from a challenge based on security of tenure
Institutional Decisions
INTRODUCTION:
-In this chapter we consider a number of situations where lawyers traditional notions of procedural fairness seems to be at odds with the ability of some administrative
agencies to efficiently deliver consistent and high quality decisions.
-The paradigm of the legal concept of procedural fairness was developed in the context of the judicial decision-making process, in which judges decide cases personally.
Clerks and discussion with other judges have some role that varies among different times and jurisdictions but is generally not large.
-Some decisions of administrative agencies are made in the same personal way: an identified official makes a decision and takes responsibility for it. However, other
decisions are the product of institutions and institutional processes, and they can usefully be described as institutional decisions.
-There are many difference degrees, processes, and reasons for these decisions, but 2 themes are dominant (A) The sheer volume of the decisions to be made may
demand for a large staff and some arrangement for dispersal of authority, specialization, and control. (B) The range and complexity of the issues may make it impossible for
any individual or small group of individuals to have the time, expertise, and perspective to make an intelligent decision.
-The strength of institutional decisions are the ability to make large volumes of decisions and the opportunities to establish internal checks and balances; specialization
among staff members; and a sharing of expertise, opinions, and perspectives.
-The objective is to design procedures that combine the strengths of both individual and institutional decision making.
-When considering an application for JR of a decision for procedural unfairness, the reviewing court is not equipped to prescribe the optimal procedure for the agency. Its
role is more modest.
-There is no discrete legal doctrine about institutional decision making, although some aspects of the duty of fairness have proved particularly relevant:
The rule restricting the delegation of legal powers and duties,
The principle that only those who heard the evidence and argument may participate in making the decision,
The duty of disclosure, and
The impartiality and independence of the decision-maker.
Advantages/Disadvantages of institutionalizing the decision-making process:
Professor Blache (quoted in Consolidated-Bathurst)
There are advantages and disadvantages to institutionalizing the decision-making process. The main advantages with which it is credited are increasing the
efficiency of the organization as well as the quality and consistency of decisions. It is felt that institutional decisions tend to promote the equal treatment of
individuals in similar circumstances, increase the likelihood of better quality decisions and lead to a better allocation of resources. Against this it is feared that
institutionalization creates a danger of the introduction, without the parties' knowledge, of evidence and ideas obtained extraneously and reduces the decision
maker's personal responsibility for the decision to be made
DELEGATION
Willis -
-The maxim: An authority may permit another to exercise a discretion entrusted by a statute to itself.
-This is normally applied in matters relating to principle and agent
-It is basic in administrative law
-The maxim deals with delegation by an authority of its statutory discretion
-Delegation = points to the conferring of an authority to do things which otherwise that person would have to do himself.
_______________________Vine v National Dock Labour Board [1957]_________________
Facts: National Labour Board was responsible for allocating dock labourers to stevedoring companies, and had express power to delegate its functions to local dock labour
boards. Vine was assigned work but did not report; the company complained, and a discipline committee of the local labour board ordered Vine discharged.
Issue: Vine brought an action for damages for wrongful dismissal and for a declaration that the action of the discipline committee was void because the local board had no
power to delegate its disciplinary powers. (he succeeded at trial and at CA on the delegation issue, and the board appealed to the HL)
Held: Appeal dismissed.
-Somervell If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would, normally, have no authority o
delegate...disciplinary powers, whether judicial or not, CANNOT be delegated...The purported delegation in the present case was to a representative of each
side, but it was impossible to imply a limited right of delegation
-Viscounr Kilmuir It is necessary to consider the importance of the duty which is delegated and the people who delegate...but my view is that this duty in this scheme
is too important to delegate unless there is an express power...The duty is placed on the local board
DECIDING WITHOUT HEARING
-An aspect of the duty of fairness that we have not so far encountered is the general principle that only those members of an agency who hear a particular case may decide
it.
-However, like other incidents of fairness, this one should be applied with sensitivity to the administrative and legal contexts in which the impugned decision was made.
-The rationale of the requirement is that a person is denied an adequate opportunity to influence the decision if unable to address directly those who make or participate in
making it.
-A simple illustration is that it will normally be a breach of the duty of fairness for a member of a hearing panel who is unable to attend for part of the hearing subsequently
to resume sitting and to participate in making the decision. The decision must be made by the members who heard all the evidence and argument, provided of course that
they constitute a quorum. If they do not, the proceeding must be abandoned and started afresh.
DELEGATING THE DUTY TO HEAR:
______________________Local Government Board v Arlidge [1915]__________________
-The reasoning in this case about the propriety of the procedural arrangements made by the minister for hearing appeals must be considered within its wider doctorial
context: the reluctance of courts to apply non-delegation principle to the exercise by civil servants of statutory powers conferred on their minister.
-In Canada, however, while our courts do NOT require powers to be delegated expressly by the minister to the civil servants in the department, they continue to find that
some decisions exceptionally
exception require the ministers personal decision (Suresh v Canada (Minister of Citizenship and Immigration) [2002]) especially where the court
seems to demand that the minister personally provide reasons when making a deportation order of a person likely to suffer torture on return to his or her country of origin.
-On the other hand, the principle that powers exercised by departmental officials in the name of the minister is not a delegation of authority has been extended to the
exercise at the local level of a power to make an assessment of tax liability conferred by statute on a senior civil servant, the deputy minister of the Department of National
Revenue: (Canada v BM Enterprises) [1992])
-The procedural latitude in Arlidge may therefore not be afforded to attempts by other decision-makers to delegate their hearing responsibilities.
_________Jeffs v New Zealand Dairy Production and Marketing Board [1967] __________
Facts: the board had general powers to govern the production and marketing of milk, including the power to establish zones for exclusive supply arrangements. When an
informal agreement regarding the allocation of the supply of whole milk from local producers between the 2 dairies was due to expire, the board should be set up to
investigate the question of supply and report back to the board. The committee decided to proceed with a public hearing of zoning applications that had previously been
made to the board. Following a 2 day hearing, at which the committee heard witnesses and received written evidence, the committee prepared a written report to the board
setting out its recommendations on zoning of whole milk supply as between Northern Wairoa Company and Ruawai Company. The board accepted the recommendations
without alteration and passed resolutions to give effect to them.
Held: Appeal allowed. The board failed to hear the interested parties as it was under an obligation to do in order to discharge its duty to act judicially in the determination of
zoning applications.
It does not appear that the board asked the committee to hold the public hearing or delegated to the committee any part of its duties. Subject to the provisions
of the Act and any regulations thereunder, the board can regulate its procedure in such a manner that it thinks fit...It would have been a matter of procedure if the
board had appointed a person or persons to hear and receive evidence and submissions...In some circumstances, it may suffice for the board to have before it and
to consider an accurate summary of hte relevant evidence and submissions if the summary adequately discloses the evidence and submissions to the board.
Unfortunately, no such procedure was followed in this case. The committee was not appointed by the board, nor was it asked by the board to receive evidence
for transmission to it. The committees report did not state what evidence was and the board reached its decision without consideration of and in
ignorance of the evidence.
CONSULTATIONS AMONG AGENCY MEMBERS:
-The question is whether, and if so to what extent, the duty of fairness precludes the members of an agency who heard a case from discussing it with other members of the
agency after the hearing has ended, bit before they have rendered the decision.
International Woodworkers of America, Local 2-69 v Consolidated-Bathurst Packaging Ltd. (1983) 5 CLRBR / (1990) 1 SCR 282 (Ont.)
PRINCIPLE: panel members could consult with the full-Board on matters of policy, NOT matters of fact AND the audi alteram partem rule will be breached if a
new policy or a new argument is proposed at a full board meeting and a decision is rendered on the basis of this policy or argument without giving the parties
an opportunity to respond.
Facts: Consolidated-Bathurst had a plant and decided to close it. The union was never informed about the possibility of closure. Three members of the Ontario Labour
Relations Board (OLRB) held a hearing to deliberate the draft decision. After the hearing was concluded these members discussed the case with other members of the
board at a full-board meeting and then gave a decision. The employer argued that, if any evidence given at the hearing was discussed with other members or if any
opinions of other members were considered, the decision had been improperly made.
Issue: the issue is a practice of the OLRB to hold a full-Board meeting after a three-person panel Board hearing was held to discuss a draft decision. Appellant argues the
practice constitutes a breach of a rule of natural justice (he who decides must hear). And, a decision- maker must not be placed in a situation where he can be
influenced by persons who have not heard the evidence.
Held: appeal dismissed. The full-board meeting was valid.
-Decision of the Board:
After deliberating over a draft decision, any panel of the Board contemplating a major policy issue may, through the Chairman, cause a meeting of all Board
members and vice- chairmen to be held to acquaint them with this issue and the decision the panel is inclined to make. These Full Board meetings have been
institutionalized to facilitate a maximum understanding and appreciation throughout the Board of policy developments and to evaluate fully the practical
consequences of proposed policy initiatives on labour relations and the economy in the Province. But this institutional purpose is subject to the clear understanding that
it is for the panel hearing the case to make the ultimate decision and that discussion at a Full Board meeting is limited to the policy implications of a draft
decision. The draft decision of a panel is placed before those attending the meeting by the panel and is explained by the panel members. The facts set out in the draft
are taken as given and do not become the subject of discussion. No vote is taken at these meetings nor is any other procedure employed to identify a
consensus. The meetings invariably conclude with the Chairman thanking the members of the panel for outlining their problem to the entire Board and indicating that all
Board members look forward to that panel's final decision whatever it might be. No minutes are kept of such meetings nor is actual attendance recorded.
-Sopinka J (dissenting): The issue in this appeal is whether the following rules of natural justice have been violated:
(a) He who decides must hear;
(b) The right to know the case to be met.
-Boards argument the ultimate decision was left to the panel and therefore presumably that the discussion of policy implications did not influence the final decision.
-Sopinkas response Given the number of Board members present and the fact that included were an alternate Chairman, Vice-chairmen and solicitors, the views
expressed were potentially very influential.
Divisional Court: Members or support staff might relate matters from their own practical experience which might be tantamount to giving evidence. The parties to the
dispute would have no way of knowing what was being said in these discussions and no opportunity to respond.
I would conclude from the foregoing that the full Board meeting might very well have affected the outcome. The Board in its reasons on reconsideration does not
directly seek to refute this inference. It does affirm that the final decision was that of the panel.
-Held (dissent):
The full Board hearing in this case is said to violate the principles of natural justice in two respects: first, that members of the Board who did not preside at the
hearing participated in the decision; and second, that the case is decided at least in part on the basis of materials which were not disclosed at the hearing and
in respect of which there was no opportunity to make submissions. ... Furthermore, when the rules of natural justice collide with a practice of the Board, the
latter must give way.
-Gonthier J (majority):
It will be noted that Chairman Adams does not claim that the purpose of full board meetings is to achieve absolute uniformity in decisions made by different
panels in factually similar situations. ... Thus, Chairman Adams states that discussions at full board meetings are limited to policy issues, that the facts of each
case must be taken as presented and that no votes are taken nor any attendance recorded. ... Finally, Chairman Adams rejected the idea that full board meetings
could have an overbearing effect on the panel members' capacity to decide the issues at hand in accordance with their opinion.
Rationale behind the need to hold full board meetings on important policy issues:
First, the importance of benefiting from the acquired experience of all the members, chairman and vice-chairman of the Board.
Second, the large numbers of persons who participate in Board decisions creates the possibility that different panels (i.e. of three) will decide similar issues in a
different manner. Coherence in administrative decision-making must be fostered. ... Given the large number of decisions rendered in the field of labour law, the Board is
justified in taking appropriate measures to ensure that conflicting results are not inadvertently reached in similar cases. The fact that the Board's decisions are protected by
a privative clause (s. 108) makes it even more imperative to take measures such as full board meetings in order to avoid such conflicting results.
Bias
-It is pointed out that justice should not only be done, but should manifestly and undoubtedly be seen to be done (Rex v. Sussex Justices, [1924] 1 K.B.)
However, in my opinion and for the reasons which follow, the danger that full board meetings may fetter the judicial independence of panel members is not
sufficiently present to give rise to a reasonable apprehension of bias or lack of independence within the meaning of the test stated by this Court in Committee for Justice
and Liberty v. National Energy Board (1978).
A full board meeting set up in accordance with the procedure described by Chairman Adams is NOT imposed: it is called at the request of the hearing
panel or any of its members. It is carefully designed to foster discussion without trying to verify whether a consensus has been reached: no minutes are kept,
no votes are taken, attendance is voluntary and presence at the full board meeting is not recorded. The decision is left entirely to the hearing panel. It cannot be
said that this practice is meant to convey to panel members the message that the opinion of the majority of the Board members present has to be followed.
It is my opinion, in agreement with the Court of Appeal, that the full board meeting was an important element of a legitimate consultation process and not a
participation in the decision of persons who had not heard the parties. The Board's practice of holding full board meetings or the full board meeting held on
September 23, 1983 would not be perceived by an informed person viewing the matter realistically and practically -- and having thought the matter through -- as having
breached his right to a decision reached by an independent tribunal thereby infringing this principle of natural justice.
Full Board meetings and the audi alteram partem rule:
-Full board meetings held on an ex parte basis do entail some disadvantages from the point of view of the audi alteram partem rule because the parties are not aware of
what is said at those meetings and do not have an opportunity to reply to new arguments made by the persons present at the meeting.
-In addition, there is always the danger that the persons present at the meeting may discuss the evidence.
It is now necessary to consider the conditions under which full board meetings must be held in order to abide by the audi alteram partem rule. In this
respect, the only possible breach of this rule arises where a new policy or a new argument is proposed at a full board meeting and a decision is rendered on
the basis of this policy or argument without giving the parties an opportunity to respond.
I therefore conclude that the consultation process described by Chairman Adams in his reconsideration decision does not violate the audi alteram partem rule
provided that factual issues are not discussed at a full board meeting and that the parties are given a reasonable opportunity to respond to any new ground arising from
such a meeting.
Board only discussed law and policy
-The balance so achieved between the rights of the parties and the institutional pressures the Board faces are consistent with the nature and purpose of the rules of natural
justice.
NOTE: obvious problems with the Consolidated-Bathurst rules is the policing of their observance. Tribunals are not obliged to disclose whether they engage in such
practices let alone whether a particular case has been the subject of a consultation. In Bathurst itself, the employers lawyer was at the board offices, eavesdropping
on the day the case was discussed.
Tremblay v Quebec (Commission des affaires socials) (1992) 1 SCR 952 (Que.)
PRINCIPLE: Institutional independence is breached there is compulsory consultation and systemic pressure to conclude a decision Compulsory
consultation creates at the very least an appearance of a lack of independence, if not actual constraint. The fact that the president can of his own motion refer
a matter for plenary discussion may in itself be a constraint on decision makers. Plenary meetings of the Commission are held so as to arrive at a consensus:
a vote by a show of hands is generally taken, as well as attendance; minutes are kept which is a breach of independence AND while secrecy remains the rule, it
may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.
Facts: the respondent, Tremblay, was receiving social aid. The Ministere denied her claim to be reimbursed for the cost of certain dressings and bandages. The
respondent appealed this decision to the Commission in accordance with the Social Aid Act. The point at issue was whether the dressings and bandages came within the
definition of medical equipment (a purely legal question. Appeal was heard by a quorum (minimum number of voting members required at a hearing). A draft decision in
favour to the respondents was reached and send off for verification. The draft eventually went to the president who explained his position to be contrary to the draft. The
respondents case was then heard at Commission meeting. Majority held unfavourable opinion to the respondent and woman in initial draft decision also changed her mind.
Since the quorum was now in disagreement, the matter was submitted to the president as required by the Act. He decided the matter as he had already indicated,
unfavourable to the respondent. The Commission dismissed the respondents appeal. Respondent argued a breach of natural justice
Held: the Commissions decision, as a product of this system of internal consultation, breached the rules of natural justice. Plenary meetings may be a consultation tool
which is entirely in keeping with the rules of natural justice. However, they should not be imposed on decision makers and should be held in such a way as to leave
decision makers free to decide according to their own consciences and opinions. Voting, the taking of attendance and the keeping of minutes are therefore not to be
recommended.
Issues:
(1) Should the Superior Court have allowed the objection to the evidence made by counsel for the Commission and based on deliberative secrecy?
The institutionalization of the decisions of administrative tribunals creates a tension between on one hand the traditional concept of deliberative secrecy and
on the other the fundamental right of a party to know that the decision was made in accordance with the rules of natural justice.
Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the
same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing
that the process followed did not comply with the rules of natural justice. This is indeed the conclusion at which the majority of the Court of Appeal arrived.
(2) Does the machinery established by the Commission to ensure adjudicative coherence give rise to a reasonable apprehension of bias?
-Commissions argument:
... the consultation machinery which it has created is consistent with the rules of natural justice. It describes this consultation machinery not as a compulsory
process of consultation but rather as an "automated" process, the purpose of which is not to impose any particular viewpoint but to assist the decision maker by
informing him of the existence of precedents.
As the Commission's decisions are not subject to appeal, it is the Commission itself which has the duty of preventing inconsistent decision-making.
-Courts response/analysis:
Compulsory meetings The institutionalized decision-making process in the case at bar is rather different from that considered by the Court in IWA. Although the
"consensus tables" held by the Commission are optional in theory, it appeared from the testimony of the member Claude Pothier that these collegiate discussions are in
practice compulsory when the legal counsel determines that the proposed decision is contrary to previous decisions.
Dugas J., who heard the parties and was therefore in a better position to assess the specific concrete aspects of the case, concluded from the testimony that
there was undeniable "compulsory consultation" and "systemic pressure".
The testimony of the member Claude Pothier depicts a system in which in actual fact constraint seems to have outweighed influence, regardless of any
internal directive to the contrary.
a plenary meeting may be requested not only by the quorum responsible for making the decision but also by the president of the Commission.
In my view, the mere fact that the president can of his own motion refer a matter for plenary discussion may in itself be a constraint on decision makers.
However, it is the quorum, and only the quorum, which has the responsibility of rendering the decision. If it does not wish to consult, it must be truly free not to do so.
Compulsory consultation creates at the very least an appearance of a lack of independence, if not actual constraint.
Lack of independence here are other facts which support this conclusion of an apparent lack of independence. For example, plenary meetings of the Commission are
held so as to arrive at a consensus: a vote by a show of hands is generally taken, as well as attendance; minutes are kept.
Certain aspects of the system established by the Commission create at the very least an appearance of "systemic pressure", to use the words of Dugas J.
Held: Accordingly the Commission's decision, as a product of this system of internal consultation, seems to me to have been made in breach of the rules of natural justice.
The present practice of the Commission of holding plenary meetings without members of a quorum having requested them, as well as the voting procedure and the
keeping of minutes, may exert undue pressure on decision makers. Such pressure may be an infringement of a litigant's right to a decision by an independent tribunal. I
consider that the institutionalized consultation process currently being used by the Commission may also give rise to a reasonable apprehension of bias in an informed
litigant. I would accordingly dismiss the principal appeal for this reason.
(3) Is the part played by the president in the case at bar a breach of the rules of natural justice?
-I should stress first of all that the Court is not in any way questioning the good faith or impartiality of the Commission's president in the case at bar; the question which
concerns it here is one of an appearance of bias, not of actual bias.
I feel that the fact that the president expressed his opinion to members of the quorum, inviting them to reconsider the decision, and then became a decision maker is
hardly consistent with the rules of natural justice.
Moreover, s. 10 of the Act expressly authorizes the president to designate a vice-president to resolve disputes between the members of a quorum. In
view of the active part he took in the discussion, the president should have delegated the decision to one of his vice-presidents. He did not do so. The active
part played by Mr. Poirier in this matter thus seems to me likely to create a reasonable apprehension of bias in an informed observer.
-Audi alteram partem rule - In the case at bar, there is no evidence that new arguments of law were raised at the "consensus table". The consultation process therefore did
not infringe the audi alteram partem rule.
-Turning to the next stage, it also seems that no new points were considered by the president at the decision-making stage. He in fact decided on the basis of the written
file as prepared by the quorum.
I therefore do NOT feel the facts of the instant case established a breach of the audi alteram partem rule.
Consolidated Bathurst
Tremblay
Meeting initiated at option of panel / DMs.
No impediment to decision
Attendance at meeting was optional
No minutes of meeting
No vote at meeting
Original panel still made decision despite what occurred at meeting.
Meeting designed to discuss issues & policy
President could initiate meeting.
Decision unlikely to be issued without a meeting if it was a novel / new point of law
Attendance at meeting was compulsory
Minutes of meeting taken (undue pressure on decision makers)
Vote taken at meeting
Tie vote between panel members broken by President.
Process designed to achieve consensus
-In the next case, the company received a copy of the original draft decision in the proverbial anonymous brown paper envelope.
-Indeed, even when the parties are aware that such a meeting has taken place, as Tremblay suggests, there may be serious impediments to obtaining evidence as to how
the consultation actually proceeded.
-This dilemma is illustrated by the second round of litigation involving the Ellis-Don case.
-In the following cases, assistance was given by a person assigned to assist the hearing panel with a particular case:
Ellis-Don Ltd. v. Ontario (Labour Relations Board) (2001) 1 SCR 221 (Ont.)
PRINCIPLE: A change between a draft and final reasons did not, of itself, create a presumption of impropriety. As long as consultations are limited to questions of policy
and law, the decision makers are free to make up and change their own minds AND deliberative secrecy was important for administrative consistency, even though it
created evidentiary difficulties,
Facts: A first draft of the panel's decision would have dismissed the grievance based on the abandonment of bargaining rights. However, after a full Board meeting
discussed the draft, a majority of the panel found that there had been no abandonment of bargaining rights and upheld the grievance. The appellant, Ellis-Don, applied for
judicial review. It alleged that the change between the draft and the final decision was of a factual nature as opposed to a legal or policy change, and claimed that there was
a breach of natural justice and a violation of the rules governing institutional consultations.
Issue: appellant tried to establish an improper interference by the full-Board in the decision of the panel. It sought to convince the courts that the change in the decision
was of a factual nature and that it could properly be implied that a discussion of the facts had occurred at the full Board meeting.
Held: Appeal dismissed. Institutional consultation did not create an apprehension of bias or lack of independence, provided that the consultation process was limited to
questions of policy and law, and the decision-makers were free to make their own decision. A change between a draft and final reasons did not, of itself, create a
presumption of impropriety. This change consisted of a different conclusion as to the legal consequences to be derived from the facts, which was a pure question of law. It
was not the application of a new policy, as it brought the decision more in line with earlier cases. Ellis-Don failed to establish an actual breach of the audi alteram partem
rule, as opposed to an apprehension of breach. Deliberative secrecy was important for administrative consistency, even though it created evidentiary difficulties for Ellis-
Don. Ellis-Don was not required to request reconsideration as a prerequisite to judicial review.
-Secrecy: The case reveals a tension between the fairness of the process and the principle of deliberative secrecy.
-The existence of this tension was conceded by Gonthier J. in Tremblay.
-Gonthier J. recognized that this principle of deliberative secrecy played an important role in safeguarding the independence of administrative adjudicators.
Deliberative secrecy also favours administrative consistency by granting protection to a consultative process that involves interaction between the adjudicators who
have heard the case and the members who have not, within the rules set down in Consolidated-Bathurst, supra. Without such protection, there could be a chilling effect
on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency.
Satisfying those requirements of consistency and independence comes undoubtedly at a price, this price being that the process becomes less open and that litigants
face tough hurdles when attempting to build the evidentiary foundation for a successful challenge based on alleged breaches of natural justice
-Dissenting:
The record discloses a change of position by the panel on an issue of fact. This runs counter to Consolidated-Bathurst and has to be dealt with properly if
confidence in the integrity of the Board's decision making is to be maintained. ... Once it was determined here that the change between the initial decision and
the final decision related to an issue that was almost entirely factual, and was nevertheless put up for discussion at a full Board meeting, I think the appellant has
made out a prima facie basis for judicial review which in this case the Board chose not to rebut. To hold otherwise would suggest that the Court in Consolidated-
Bathurst affirmed procedural limitations on full board meetings for breach of which there is no effective remedy.
Payne v Ontario (Human Rights Commission) (2000) 192 DLR (4th) 315 (Ont. CA)
PRINCIPLE: The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a
relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed.
-Sharpe JA: noted three purposes put forward in favour of deliberative secrecy:
First, a practical concern that if no limits were imposed, tribunal members would be exposed to unduly burdensome examinations;
Second, the need for finality and the need for decisions to rest on reasons givens;
Third, the need to protect the process of debate, discussion, and compromise inherent in collegial decision making.
-The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, to the certain overarching principles.
-As was pointed out by Gonthier J. in Tremblay.
The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a
relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed.
AGENCY COUNSEL
-In this section we consider some of the other limitations that the duty of fairness may impose on agencies ability to seek the assistance of counsel in the discharge of
their adjudicative functions.
AT THE HEARING:
-It is common for tribunals, especially when sitting without a member who is legally trained, to have counsel available to advise on the admissibility of evidence, procedure,
or other questions of law that arise during the hearing.
-The parties should be apprised of counsels advice, and given an opportunity to make submissions to the tribunal before it decides the issue.
-The problem most likely to arise from these arrangements is that counsel may overstep the role of advisor to assume functions more appropriate for the chair or other
members of the tribunal, therefore, giving the impression that counsel, not the panel, is running the hearing.
-This could give rise to the challenge for bias on the ground that a reasonable observer might conclude that someone other than one statutorily authorized to decide was in
reality the decision maker.
THE PREPARATION OF REASONS:
-Writing reasons for decision can be an onerous and daunting task for members of many administrative tribunals.
-The volume and complexity of disciplinary proceedings have grown in recent years.
-The practical problem is this: to what extent is the giving of reasons a function that must be performed personally by the statutorily designated decision-makers, rather
than bureaucratically (or institutionally) through the use of the full range of agency resources?
-The relevant black-letter law can be stated simply. FIRST, the decision made must be that of the tribunal members themselves. For this reason, counsels who, without the
consent of the parties, retire with the tribunal while it deliberates may thereby create a reasonable apprehension of bias: the participation of a non-member in making the
tribunals decision. SECOND, the reasons for decisions must be in substance those of the tribunal members, NOT their clerks or their counsels.
NOTE: Courts have permitted tribunals to seek the assistance of counsel or some other staff member:
Spring v Law Society of Upper Canada (1988) 50 DLR (4th) 523 (Ont. Div. Ct.)
PRINCIPLE: The reasons must be those of the committee. The decision making process could not be delegated to a third party, but a third party (the clerk) may write up a
draft report as long as it is not the final report on the decision.
BUT : On the other hand, it is impermissible for the tribunal to ask for help from counsel for one of the parties: this would give rise to a reasonable apprehension of bias.
Khan v College of Physicians and Surgeons of Ontario (1992) 94 DLR (4th) 193 (Ont. CA)
PRINCIPLE: A committee/tribunal receiving legal advice does NOT create a reasonable apprehension of bias. It is entitled to such legal advice. A committee/tribunal may
look to outside sources such as the assistance of a lawyer.
Facts: Khan had been found guilty of professional misconduct by the discipline committee of the college and his licence was revoked. Khan had appealed on the ground
that the committee had acted in breach of the duty of procedural fairness by permitting its counsel to play so significant a role in the preparation of its reasons for decision
as to create a reasonable apprehension of bias. The Divisional court allowed the appeal on this ground.
Held: appeal allowed. Nothing in this record suggests that counsel's involvement in the writing of the reasons compromised the independence or impartiality of the
Committee
-Legal advice: The Committee is entitled to the legal assistance of its own counsel during the hearing. It received such assistance in this case and there is no suggestion
that counsel's conduct during the actual hearing was improper.
-Rosenberg J (Divisional Court) counsels advice to the Committee must have amounted to legal advice.
Lawyers are not retained for their journalistic or administrative abilities and it is unlikely that a lawyer with the best of intentions can confine his advice to be only of
journalistic and administrative assistance.
It is well established that a tribunal such as the Committee may look to outside sources for assistance in the preparation of its reasons: Spring. ... That
same reconciliation must be achieved during the drafting of reasons. The ultimate aim of the drafting process is a set of reasons which accurately and fully reflects the
thought processes of the Committee. To the extent that consultation with counsel promotes that aim, it is to be encouraged.
-Section 12(3), like the rest of s. 12, refers to the hearing stage of the proceedings. The legal advice refers to advice given during the hearing by counsel for the Committee.
The hearing stage of the discipline process was over when the Committee announced its decision and imposed a penalty. Nothing done by counsel for the
Committee after that point could contravene s. 12(3).
Even if s. 12(3) of the Health Disciplines Act reached beyond the hearing stage to the writing of the reasons for the decision, the section was not contravened in this
case. Counsel for the Committee specifically disavowed providing any legal advice to the Committee during the writing of the reasons. His assertion was not challenged.
The phrase "legal advice" in s. 12(3) must refer to advice on matters of law. Advice intended to improve the quality of the Committee's reasons by, for example,
deleting erroneous references to the evidence or adding additional relevant references to the evidence, is not advice on a matter of law but is rather advice as to how the
Committee should frame its reasons in support of its decision. If the Committee accepts such advice, it may improve the quality of the reasons ultimately provided by the
Committee and render the decision of the Committee less susceptible to reversal on appeal.
REASONS REVIEW:
-In the cases considered above, assistance was governed by a person assigned to assist the hearing panel with a particular case.
-Some agencies also employ lawyers to assist the agency in its corporate capacity to develop policy and oversee its implementations by panels of the agency.
-The chairs of many agencies take the view that there is a corporate responsibility for the quality of the agencys work, including the decisions made by its members after
the hearing.
-The argument is that, when sitting on a hearing panel, members exercise their powers, now with total independence, like judges, but as members of an agency with a
statutory mandate to discharge, which accordingly gives to the agency a legitimate interest in the substance and technical quality of members decisions.
Bovbel v Canada (Minister of Employment and Immigration) (1994) 2 FC 563 (CA)
PRINCIPLE: a third party may be involved in writing the decision as long as strictly confined to the law/policy/consistency and not the facts.
Facts: appellant argued that contrary to the principles of natural justice and the provisions of the Immigration Act, the board had referred a draft of its written decision to
legal counsel who was not a member of the Board and who had not participated in or attended at the applicants hearing.
Held: no breach of procedural fairness. In our view, the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a
factual inconsistency that could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their
mandate and try to influence the factual findings of the board. However, any policy is susceptible to abuse.
AGENCY GUIDELINES
-Some administrative agencies make extensive use of guidelines on the interpretation of their enabling legislation and the exercise of their statutory discretion.
-The Immigration and Refugee Board of Canada Policy on the Use of Chairpersons Guidelines (p633) - is Canadas largest administrative tribunal, and has been
very active in drafting guidelines to assist board members to deal with both the procedural and substantive aspects of the exercise of their powers under the Immigration
and Refugee Protection Act.
_________Thamotharem v Canada (Minister of Citezenship and Immigration) [2008]_______
Issue: whether Guideline 7 is unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members exercise of discretion in the conduct of hearings.
Held: the appeal should be allowed, and the cross-appeal should be dismissed.
Evans
Effective decision making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion. Through the
use of soft law (policy statements, guidelines, manuals and handbooks), an agency can communicate prospectively its thinking on an issue to agency
members and staff as well as to the public at large and to the agencys stakeholders in particular....Although not legally binding on a decision-maker in the
sense that it may be an error of law to misinterpret or misapply them, guidelines may validly influence a decision-makers conduct. The use of guidelines and other soft
law techniques to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on
procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Immigration and
Refugee Board (IRB).
Despite the express statutory authority of the Chairperson to issue guidelines under IRPA, paragraph 159(1)(h), they do not have the same legal effects
that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate
regardless of the facts of the particular case before them. The word guideline itself normally suggests some operating principle or general norm,
which does not necessarily determine the result of every dispute
Since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exception
exceptional circumstances, the Court should be
slow to conclude that members will regard themselves as bound to follow the standard order in the absence of clear evidence to the contrary. The Federal
Court correctly concluded that the language of Guideline 7 is more than a recommended but optional process. The fact that a guideline is intended to
establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision
maker may deviate from normal practice in the light of particular facts. While RPD members must perform their adjudicative functions without improper influence
from others, case law also recognizes that administrative agencies must be free to devise processes for ensuring an acceptable level of consistency and quality in
their decisions. Evidence that the IRB monitors members deviations from the standard order of questioning does not create the kind of coercive
environment that would make Guideline 7 an improper fetter on members exercise of their decision-making powers. Nor did the evidence establish that
a reasonable person would think that RPD members independence was unduly constrained by Guideline 7
-In my opinion, therefore, the evidence in the present case does NOT establish that a reasonable person would think that RPD members independence was
unduly constrained by Guideline 7, particularly in view of: the terms of the Guidelines; the evidence of members deviation from standard practice; and the need for the
Board, the largest administrative agency in Canada, to attain an acceptable level of consistency at hearings, conducted mostly by single members.
-Adjudicative independence is not an all or nothing thing, but is a question of degree.
-The independence of members of administrative agencies must be balanced against the institutional interest of the agency in the quality and consistency of the decisions,
from which there are normally only limited rights of access to the courts, rendered by individual members in the agencys name.
NOTES
-Evans observed that Guideline 7 is aimed at ensuring acceptable level of consistency and quality in IRB decisions, and, drawing an analogy to a full board hearing, applies
the Consolidated-Bathurst framework to determine the guidelines validity.
SUBSTANTIVE REVIEW
The Standard of Review
INTRODUCTION:
-Our preoccupations in this chapter is with the standard of review that the courts should apply in exercising their review powers over various forms of statutory authorities
(and in many cases tribunals) charged with implementing the mandate of the administrative scheme created by their empowering statute.
-So when the courts are asked to review determinations of questions of law, fact, mized law and fact, and discretion made by these decision-makers, what
approach should they bring to that task and what tests should they apply?
-The Dunsmuir decision lays out the current framework. It calls this the STANDARD OF REVIEW analysis (although the analysis encompasses the factors that previously
applied under the pragmatic and functional approach).
-The standard of review is:
(1) The presence and terms of a privative clause or right of appeal in the statute
(2) The nature of the question that is under review
(3) The expertise of the decision-maker
(4) The statutory purpose and context in which the decision making took place
THE STANDARD OF REVIEW ANALYSIS:
-The SCCs judgement in Baker had a profound effect on many critical issues in Canadian JR of administrative action on both SUBSTANTIVE and PROCEDURAL
grounds.
-BUT the majority reasons of the court in Dunsmuir proclaim similar ambitions to provide a comprehensive review of the system of JR and a holistic approach
to fundamental principles of substantive review. And, even if Dunsmuir did not radically alter the courts commitment to judicial deference for administrative decision
making, it made significant changes to the method of implementation of that commitment:
THUS = reduce the number of standards of review in Canadian JR from 3 to 2.
The highly deferential patent unreasonableness standard does NOT entirely disappear from the lexicon, but rather seems to live on only where its usage is
dictated by a past decision or by an express statutory provision.
Likewise, the NEW standard of reasonableness is not the same as the old reasonableness simpliciter, and appears to convey an adaptable approach to
deference in different circumstances, thus shifting many questions in the standard of review analysis to a stage at which the standard of reasonableness, once
arrived at, is applied.
The standard of correctness retains more or less the SAME meaning.
The FIRST STAGE of substantive review is to determine the appropriate standard of review. So, must an administrative decision be unreasonable or simply
incorrect, in the courts view, for the court to set it aside.
-This is also known as the Standard of Review Analysis, at which the court decides whether:
to DEFER to the administrative decision-maker by adopting a reasonableness standard; or to DECLINE TO DEFER based on the correctness standard
The SECOND STAGE of substantive review is to apply that standard on the merits of the case at hand in order to decide the outcome of judicial review.
NOTE: this chapter is more concerned with stage one
Dunsmuir v New Brunswick (2008) SCC 9
PRINCIPLE: the two variants of reasonableness review should be collapsed into a single form of reasonableness review. The result is a system of judicial review
comprising two standards: correctness and reasonableness.
PRINCIPLE: overruled Knight - Reaffirmed that office holders at pleasure are not entitled to a public law duty of procedural fairness (confirming Ridge v Baldwin).
PRINCIPLE: pragmatic and functional approach is now referred to as the standard of review analysis.
(A) Reasonableness standard: courts will give due consideration to the determinations of decision makers. Deference requires respect for the legislative choices to
leave some matters in the hands of administrative decision makers.
(B) Correctness standard: a reviewing court will not show deference to the decision makers reasoning process; it will rather undertake its own analysis of the
question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view
and provide the correct answer. Thus, the court must ask whether the tribunals decision was correct.
Method for selecting the appropriate standard of review (a.k.a. the pragmatic and functional approach:
(A) Reasonableness standard:
(1) The presence or absence of a privative/preclusive clause
o Because a privative clause is evidence of Parliament or a legislatures intent of deference. However, the presence of a privative clause is not determinative.
(2) The nature of the question at issue;
o If the question is one of fact, discretion or policy, deference will usually apply automatically.
o If the questions are of mixed law and fact.
(3) The purpose of the tribunal as determined by interpretation of enabling legislation;
o Where a tribunal is interpreting its own statute(s) closely connected to its function, with which it will have particular familiarity reasonableness will attract.
(4) Expertise (in the application of a general common or civil law rule) will attract deference.
o Adjudication in labour law.
(B) Correctness standard:
A question of law (that is of central importance to the legal system and outside the specialized are of expertise of the administrative decision maker).
A question of jurisdiction.
o Constitutional questions regarding the division of powers (National Energy Board).
o Courts must substitute their own view of the correct answer where the question at issue is one of general law that is both of central importance to the legal system as a
whole and outside the adjudicators specialized area of expertise (Toronto (City) v C.U.P.E.).
Because the phrase pragmatic and functional approach may have misguided courts in the past, we prefer to refer simply to the standard of review analysis in the future.
-Application of the standard of review to Dunsmuir:
(1) Privative clause existed (every order, award, direction, decision ... of an adjudicator is final and shall not be questioned or reviewed in any court.
(2) The nature of the question at issue is not one that is of central importance to the legal system nor outside the specialized expertise of the adjudicator indicating a
reasonableness standard.
(3) Provision for timely and binding settlements of disputes implies a reasonableness standard.
(4) The nature of the regime favours the standard of reasonableness: labour arbitrators.
SCC Held: the appropriate standard is reasonableness.
Was the adjudicators interpretation unreasonable?:
-SCC Held: the adjudicators interpretation was unreasonable.
-The reasoning process of the adjudicator was deeply flawed.
The approach to the dismissal of public employees:
-The starting point should be to determine the nature of the employment relationship with the public authority.
-Following Wells, it is assumed that most public employment relationships are contractual.
-A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness.
-Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies (overruling Knight on this).
-HOWEVER, there may be occasions where a public law duty of fairness will still apply:
(1) Where a public employee is not protected by a contract of employment (judges, minister and others who fulfill constitutionally defined state roles (Wells) or the terms
of appointment expressly provide for summary dismissal or are silent).
(2) The dismissal of a teacher could only take place if the teacher was given three weeks notice of the motion to dismiss (MallochUK).
Conclusion:
-Facts: D was employed by the Department of Justice for the Province of New Brunswick. He held a position under the Civil Service Act and was an office holder at
pleasure. His probationary period was extended twice and the employer reprimanded him on three separate occasions. Eventually, his employer sent him a formal letter of
termination, cause was explicitly not alleged, and given four months pay in lieu of notice.
-Dunsmuirs argument: no reasons given for dismissal, no opportunity to respond to the concerns, termination was without notice, and the length of the notice period was
inadequate.
-SCC Held: Since the appellant was a contractual employee, it was not necessary to consider any public law duty of procedural fairness. Contract law applied. Thus, the
adjudicator erred in his application of the duty of fairness and his decision was therefore correctly struck down.
LINGERING QUESITONS AFTER DUNSMUIR:
1) What is the role of precedent?
2) What is to be done about cases where a statute or the existing jurisprudence dictates a standard of review that is no longer available in the common law after
Dunsmuir?
3) Dunsmuir introduces new questions about the proper scope of judicial review on questions of law
4) The role of the factors in general in the standard of review analysis. To what extent is it necessary for a court to refer explicitly to several or all of the factors when
explaining its reasoning in support of a correctness or reasonableness standard?
5) Whether the majoritys approach will provide, as it aspires to do, a coherent and workable framework for the system of judicial review as a whole.
6) The interaction between the different factors in the standard of review analysis, in particular the role of privative clauses.
Privative Clauses and Statutory Rights of Appeal
INTRODUCTION
-This chapter deals with an important consideration in the standard of review analysis: privative clauses and statutory rights of appeal.
-We are concerned here with the statute under which a decision-maker acts and, in particular, with statutory provisions that speak to the relationship between the courts
and the relevant decision-maker or decision.
-An examination of PRIVATIVE CLAUSES and right of appeal thus involves statutory interpretation in that the court must formulate an understanding of
legislative intent on the issues of judicial DEFERENCE.
-The courts treatment of privative clauses, in particular, has provoked impassioned debate within the judiciary and the wider legal community.
-A statutory direction that the decisions of a particular tribunal are not to be questioned or reviewed in any legal proceeding whatsoever challenges the pervasive
assumption that it is ultimately the constitutional function of an independent judiciary to determine the rights of individuals accorded to law.
-In particular, it is ultimately for the courts, not administrative agencies, whose members may not be lawyers or who may be appointed for a relatively short term, to interpret
statutes and apply them to the facts of the individual case and to ensure that administrative decisions are made on the basis of a procedure that meets minimum standards
of reasoning and fairness.
-A principle area in which privative clauses are common is the regulation of the employment relationship. Thus, statutory privative clauses of various kinds
regularly shelter from JR the proceedings and decisions of labour relations boards, labour arbitrators, workers compensation boards, and the tribunal charged with
implementing the principles of equal pay for work of equal value and employment equality.
-This chapter begins with sections on the general role of privative clauses and rights of appeal in light of the Dunsmuir decision.
-We then examine the historical debate about privative clauses, focusing especially on the position of the courts that the legislature cannot completely remove the authority
of superior courts to review administrative decision making.
Summary:
-a privative clause is a provision in a statute that tries to remove a courts ability to review decisions of a tribunal (or other administrative agency).
-Latin privare, meaning to deprive.
- Privative clauses demonstrate the tension between the power of the legislature and the courts.
-They are subject to much controversy because on the one hand, Parliament has the elected right to make laws for the electorate, but also the courts have a
constitutionally enshrined right to review and account for decisions
PRIVATIVE (OR PRECLUSIVE) CLAUSES AND RIGHTS OF APPEAL
A full or strong privative clause:
-Uses a broad language to preclude any form of review by a court, while also establishing that the decisions of the relevant actor are final and conclusive
-Pasiechnyk v Saskatchewan (Workers Compesation Board) [1997]
One that declares that decisions of the tribunal are full and conclusive from which no appeal lies and all forms of JR are excluded...although where the
legislation wmploys words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the
words were intended to have full privative effect or a lesser standard of deference
A weak privative clause:
-Sometimes called finality clauses or exclusive jurisdiction clauses
-They state that decisions of a decision-maker are final and conclusive or that a decision-maker has the sole or exclusive jurisdiction in certain matters, without
expressly precluding the role of the courts from any review of the decision-maker.
Interpretation of a privative clause
-May depend also on whether other provisions of statute provide for an appeal to a court from the decision-maker on questions of face, law, mixed law and face, or another
category of decision.
NOTE: privative clauses CANNOT oust the authority of the superior courts to carry out JR on constitutional issues or its authority to ensure that an administrative actor has
the statutory authority that it claims and that it is acting within the bounds of this authority (intra vires).
-p699 = give examples of privative clauses and rights of appeal
PRIVATIVE CLAUSES IN THE STANDARD OF REVIEW ANALYSIS
-Generally, in determining whether judicial DEFERENCE should be shown to an administrative decision-maker, a court will accept that the presence of a privative clause in
a statute calls for the court to show deference, although this may be influenced also by other factors.
-That said, there is an unfortunate history of judicial resistance to privative clauses, especially the labour relations context
Reasons why legislatures in Canada inserted privative clauses in legislation to protect the decisions of administrative agencies charged with regulating labour relations:
(1) Legislatures were aware that the protracted delays that would inevitably accompany applications to the courts for judicial review to seek a second opinion on the
arbitrators interpretation of the collective agreement would postpone the resolution of the grievance, to the potential detriment of the parties labour relations.
And time is generally of the essence when a union is seeking certification from a labour relations board; delay often works in favour of the employer who is resisting
certification by allowing the employer more time to try to persuade the employees that unionization will not serve their interests.
(2) The conduct of litigation through the courts is expensive.
(3) Administrative tribunals sometimes have been created for the very purpose of keeping the dispute out of the courts, i.e. a specialist tribunal is generally preferred to a
court because its members have a better understanding of the issues.
Limits of privative/preclusive clauses:
-Distinction between asking whether an agency has the power to decide (ultra vires) and whether it has exercised properly the decision making power that it has.
The clauses cannot oust the courts right to determine whether an agencys decision was one that was within its jurisdiction.
-Justification by courts for NOT interpreting blanket preclusive clauses literally:
Jacmain v Att. Gen. of Canada (1978) 2 SCR 15
The intractable difficulty is this. It is hard to believe that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal an
unlimited power to determine the extent of its jurisdiction.
Also, if there was no limitation, then in effect, the tribunal would be a s.96 court.
Where then do we stand on the role of privative clauses in the current doctrine?
-Privative clauses retain their importance in the standard of review analysis as a signal of deference. On the other hand, other aspects of the Dunsmuir framework suggest
a turn away from the view that privative clauses convey a clear message about legislative intent.
-Thus, Dunsmuir also leaves room against an expansive approach to jurisdictional review.
-It seems to remain important, at least, to examine closely the reasons given by a court to justify overturning a decision where the decision was protected by a full
privative clause.
-We later discuss the concept of jurisdiction and, in particular, the direction in Dunsmuir that the courts exercise in characterizing questions as jurisdictional.
-The post-Dunsmuir decision in Hibernia Management and Development Company v Canada-Newfoundland and Labrador Offshore Petroleum Board [2008] is an
example of such caution.
RIGHTS OF APPEAL IN THE STANDARD OF REVIEW ANALYSIS:
-Many statutes provide a right of appeal to a specific court in Ontario, for instance, this is typically to the Divisional Court, whereas at the federal level, it is the Federal
Court or the Federal Court of Appeal on questions of fact or law (or both) that have been determined by the statutory decision-maker.
-The right of appeal is broadest when it encompasses all of the possible questions that a decision-maker might make, and its inclusion in a statute tends to right against
deference by a court.
-Before Dunsmuir, the general position was that, where questions of FACT fell within the scope of the right of appeal, there was a tendency nonetheless to defer to the
findings of the trier of FACT. Where the issue was one of LAW, the assumption was the right of appeal indicated a legislative intent for the court to feel few to intervene on
the basis of its own conclusions on the relevant legal issues.
-Thus, a right of appeal on questions of LAW was taken as a green light for judicial intervention.
-In terms of a right of appeal that encompasses questions of LAW, then, Dunsmuir suggests implicitly that the conventional position may be altered, or at least clarified.
-Thus, the more important issues appears to be, not the presence of a right of appeal on questions of LAW, but rather, the context in which a question of LAW
has arisen and the degree to which it engages the mandate and expertise of the decision-maker.
THE CONSTITUTIONAL LIMITS OF PRIVATIVE CLAUSES:
-Here, we consider the doctrine, led in particular by the decision in Crevier , that the constitution implicitly guarantees the authority of the courts to review the decisions of
administrative agencies for errors of law or jurisdiction and for procedural unfairness.
-The issues is of special significance to privative clauses because it retrains the ability of Parliament or a provincial legislature to limit the scope of judicial review.
-It is now generally agreed that a legislature cannot oust the courts power to review a decision of an administrative agency, or its enabling statute, on the ground that wither
is beyond the constitutional capacity of that legislature.
-Thus, legislation that confers power on public authorities are always subject to challenge on the basis that there has been a disregard of the division of powers between
Parliament and the provincial legislatures provided for primarily in ss.91 and ss.92 of the Constitution Act 1867-1982, and also in other unwritten principles of the
Canadian constitution as recognized in Reference re Secession of Quebec [1998].
-However, the Constitution Act 1867-1982, contains no provision that explicitly deals with the power of the courts to review decisions of administrative agencies.
-In Canada, in the absence of any express separation of powers provision, it was claimed that a right to the JR of administrative action should be implied in the
constitutional based on the judicature provisions of ss.96-101 of the Constitution Act 1867-1982.
COURTS AND TRIBUNALS: CONSTITUTIONAL BACKGROUND
-Peter Hogg, Constitutional Law of Canada (2009)
STATUTORY REMOVAL OF JUDICIAL REVIEW
__________________Crevier v Quebec (Attorney General) [1981] _____________________
PRINCIPLE: Any legislation which has a privative clause purporting to exclude review of jurisdictional matters is outside the jurisdiction of a provincial legislature.
Facts: This cases addresses the limits of a provincial legislatures power to create an administrative tribunal within authority over matters conventionally dealt with by s.96-
101 courts. The decision examined the Professional Code, a Quebec statute which governed 38 professional corporations. The law required each of the corporations to
establish a discipline committee in conformity with the code that would examine allegations of professional misconduct. The statute provided that the decisions of the
tribunal were final.
Held: Appeal allowed.
-This is a leading SCC decision in administrative law.
-The Court had to decide whether a Quebec-created Professionals Tribunal was unconstitutional due to being a "s. 96 court" according the Constitution Act 1867, whose
members can only be federally appointed.
-It found that any legislation which has a privative clause purporting to exclude review of jurisdictional matters is outside the jurisdiction of a provincial legislature.
EXPERTISE AND STATUTORY PURPOSE
INTRODUCTION
-Here, we examine 2 of the factors in the standard of review analysis.
-The first is the expertise of the administrative decision-maker as measured by the court in light of relevant statutory provisions and relative to the courts understanding of it
own expertise.
-Indicators of expertise may be present in the statute itself, but may also emerge from the courts understanding of the legislatures aim when it created a statutory regime
and the relevant decision-making within in.
-The second factor is the consideration of the purpose of a decision-maker as determined by its enabling legislation.
EXPERTISE AS A FACTOR IN THE STANDARD OF REVIEW ANALYSIS:
-The consideration of expertise requires a court to put itself into the mind of the legislature at the time that it creates or subsequently endorsed a statutory regime. It looks to
explicit markers in the statute to guide itself in this manner, such as a provision that states expressly the type of expertise that members of tribunal posses, or should
possess, as a condition of their appointments.
-Also, the courts may find indirect indicators of the legislatures intentions, such as a requirement that a tribunal include members who are lawyers or judges (indicating a
degree of legal expertise) or in more general statements about the aims and purpose of the statute.
-Thus, statutory markers of expertise also contribute to an understanding of the intentions of the legislature when it established the statutory regime.
NOTE: Expertise and statutory purpose are closely related.
-In Dunsmuir the existence of a discrete and special administrative regime in which the decision-maker has special expertise... is a consideration that may
lead to deference based on a reasonableness standard.
-The majority in Dunsmuir concluded that deference will usually extend to the resolution of question of law
where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity or where an
administrative tribunal has developed particular expertise in the application of a general common law of civil law rule in relation to a specific statutory context.
THE DECISIONS IN PEZIM AND SOUTHAM
Pezim v British Columbia (Superintendent Brokers)(1994) 2 SCR 557
PRINCIPLE: courts should defer to an agencys resolution of an issue of statutory interpretation even in the face of a right of appeal on such issues.
Facts: The BC Securities Commission had found that the respondents (Pezim and others) had failed to make timely disclosure in respect of certain transactions as
required by the Securities Act 1985, s.83. As a result, it suspended them from trading in shares for a year and ordered them to pay costs. The respondents exercised their
right under s.149 of the Securitas Act to appeal this decision on the question of LAW to the CA, with leave of that courts. They argued that the commission had erred in law
in its interpretation of the phrase material change in the affairs of a reporting issuer of shares. The CA allowed the appeal and the superintendent and the commission
appealed to the SCC.
Held: Appeal allowed. The majority of the Court of Appeal erred in failing to appreciate the Commission's role in an area requiring special knowledge and sophistication. It
also failed to recognize the Legislature's intent to confer a broad public interest mandate on the Commission to carry out its role. There was ample evidence to support
each of the Commission's findings. There being no reviewable error of law, the majority of the Court of Appeal erred in interfering with the Commission's findings.
Consequently, I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal and substitute therefore the findings and orders of the Commission.
The appellants shall have their costs here and in the court below.
Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges
from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts
as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the
spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its
jurisdiction and where there is no statutory right of appeal.
At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of
a provision limiting the tribunals jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its
opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights.
NOTES:
-This case is groundbreaking because it established that courts should defer to an agencys resolution of an issue of statutory interpretation even in the face of a right of
appeal on such issues.
-Since this case, the principle of deference to agency determinations even on questions of law, has been consolidated, culminating in the statements in Dunsmuir and
Khosa that administrative decision-makers enjoy a margin of appreciation when interpreting their home statutes or other statutes closely related to their functions.
NOTE: the significance of the decision is Southam, which closely followed Penzim, was to discuss further the basis for deference based on expertise.
Canada (Director of Investigation and Research) v Southam Inc. (1997) 1 SCR 748
PRINCIPLE: The first case in which the SC expressly identified reasonableness simpliciter as a third (or middle) category of review. It thus provides an interesting example
of how to show deference based on the pre-Dunsmuir distinction between reasonableness simpliciter and patent unreasonableness. (see below p155)
Facts: The Competition Tribunal had to determine if mergers of newspapers significantly lessened competition. The tribunal found a substantial lessening in competition in
the real estate print advertising market and ordered Southam to divest itself of one of its newspapers.
Issue: whether the Federal CA erred in concluding that it owed no deference to the tribunals finding about the dimensions of the relevant market and in subsequently
substituting for that finding one of its own. Ultimately, this comes down to a question about the standard of review.
Held: deference was owed to the tribunal Reasonableness review.
Pezim v BC Depending on how the factors play out in a particular instance, the standard may fall somewhere between correctness, at the more exacting end of the
spectrum, and patently unreasonable, at the more deferential end.
A. Statutory right of appeal:
There is no privative clause, and so jurisdiction is not at issue.
B. The Nature of the problem before the tribunal:
In my view, the problem is one of mixed law and fact.
questions of statutory interpretation are generally questions of law, but also because the point in controversy was one that might potentially arise in many cases in
the future.
Nova Scotia Pharmaceutical Society appellate courts should be reluctant to venture into a re-examination of the conclusions of the tribunal of questions of mixed
law and fact.
C. The words of the tribunals constituting statute:
Section 13 of the Competition Tribunal Act confers a right of appeal from orders and decisions of the Tribunal:
13. (1) Subject to subsection (2), an appeal lies to the Federal Court of Appeal from any decision or order, whether final, interlocutory or interim, of the Tribunal as if it were
a judgment of the Federal Court -- Trial Division.
(2) An appeal on a question of fact lies under subsection (1) only with the leave of the Federal Court of Appeal.
That Parliament granted such a broad, even unfettered right of appeal, as if from a judgment of a trial court, perhaps counsels a less-than-deferential posture for appellate
courts than would be appropriate if a privative clause were present. However, as this Court has noted several times recently, the absence of a privative clause does not
settle the question.
Section 13 is not a privative clause, thus a less deferential approach is warranted.
D. The purpose of the statute that the tribunal administers:
Parliament has described the purpose of the Competition Act in the following terms:
1.1 ... to maintain and encourage competition in Canada ...
The aims of the Act are more economic than they are strictly legal. The "efficiency and adaptability of the Canadian economy" and the relationships among Canadian
companies and their foreign competitors are matters that business women and men and economists are better able to understand than is a typical judge.
The purpose of the statute is economical, thus better served by business minded people than judges. Thus, better served by the appellate deference to the Tribunals
decisions.
E. The area of the tribunals expertise:
Expertise, which in this case overlaps with the purpose of the statute that the Tribunal administers, is the most important of the factors that a court must consider in settling
on a standard of review.
NOTES:
-Southam is significant because it introduced the third middle standard, reasonableness simpliciter, in Canadian judicial review .
-Penzim did not articulate a standard of review, referring instead to a need for considerable deference
NOTE: this middles standard, reasonableness simpliciter, and the highly deferential standard of patent unreasonableness, have been replaced in Dunsmuir with the
single standard of reasonableness.
THE ROLE OF STATUTORY PURPOSE:
-While the courts may refer to the factor of a decision-makers or a statutes purpose in order to obtain an overall sense of the decision-making context, the role of this
factor is perhaps most important to steer the courts away from judicial decisions that run counter to the overall rationale for which a specialized administrative regime was
established.
-The framing of a decision-makers purpose thus interacts with all of the other factors in the standard of review analysis. In this respect, purpose and regulatory context
pervade many aspects of the evaluation of deference.
-On the other hand, it is also difficult to imagine a court relying on purpose alone to decide whether to defer, especially where the other factors point in an opposite
direction.
-The decision in Pezim and Southam point to the role of the purpose of a decision-maker.
-Likewise, the following case from a recent SCC decision links statutory purpose more closely to the nature of the question.
_______________Bell Canada v Bell Aliant Regional Communications [2009]_____________
Facts: The Telecommunications Act, S.C. 1993, c. 38, sets out certain broad telecommunications policy objectives. It directs the Canadian Radio-television and
Telecommunications Commission (CRTC) to implement them in the exercise of its statutory authority, balancing the interests of consumers, carriers and competitors in the
context of the Canadian telecommunications industry. The issue in these appeals is whether this authority was properly exercised.
While distinct questions arise in each of the appeals before us, the common problem is whether the CRTC, in the exercise of its rate-setting authority, appropriately directed
the allocation of funds to various purposes. In the Bell Canada and TELUS Communications Inc. appeal, the challenged purpose is the distribution of funds to customers,
while in the Consumers Association of Canada and National Anti-Poverty Organization appeal, the impugned allocation was directed at the expansion of broadband
infrastructure. For the reasons that follow, in my view the CRTCs allocations were reasonable based on the Canadian telecommunications policy objectives that it is
obliged to consider in the exercise of all of its powers, including its authority to approve just and reasonable rates.
Held: Appeal dismissed.
The CRTC heard from several parties, considered its statutorily mandated objectives in exercising its powers, and decided on an appropriate course of action.
Under the circumstances, I have no hesitation in holding that the CRTC made a reasonable decision in ordering broadband expansion.
I would therefore conclude that the CRTC did exactly what it was mandated to do under the Telecommunications Act. It had the statutory authority to set
just and reasonable rates, to establish the deferral accounts, and to direct the disposition of the funds in those accounts. It was obliged to do so in
accordance with the telecommunications policy objectives set out in the legislation and, as a result, to balance and consider a wide variety of objectives and
interests. It did so in these appeals in a reasonable way, both in ordering subscriber credits and in approving the use of the funds for broadband expansion.
THE NATURE OF THE QUESTION
INTRODUCTION
-Before Dunsmuir, the most important factor in the pragmatic and functional approach appeared to be that of EXPERTISE.
-However, Dunsmuir shifted the focus to the nature of the question by emphasizing that a determination of the nature of the question may create a strong
resumption in favour of deference, such that it may be unnecessary to examine other factors in detail.
-It is not always straightforward to classify a decision of a tribunal or agency, or one single question arising from that decision, as one of law, fact, or mixed fact and law.
Likewise, it may be challenging to distinguish these categories from the further category of discretionary questions given that the resolution of issues of law and fact
always involve some element of discretion, although to widely varying degrees.
-In this chapter we elaborate on the nature of the question as a factor in the standard of review analysis. To do so, we examine various challenges arising from the attempt
to distinguish between different types of questions and decisions.
NOTE:
unreasonable and patently unreasonable:
-The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the
tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is
unreasonable but not patently unreasonable.
Unreasonable
Patently Unreasonable
Correctness
Deference if the decision is held to be reasonable then it will stand.
Less deference if the decision is held to be patently reasonable then it will stand.
No deference if the tribunal did not err and decided correctly then it will stand.
FACTUAL QUESTIONS
__________Dr. Q v College of Physicians and Surgeons of British Columbia [2003]_______
Facts: In 1998, an Inquiry Committee of the appellant College found that the respondent physician had taken physical and emotional advantage of one of his female
patients and was guilty of infamous conduct. The relationship began in early 1994 as a therapeutic one, after the patient sought help in treating her depression. She
alleged that, at some point in the spring of 1995, the relationship became sexual and that this sexual relationship lasted for approximately 16 months. The respondent
denied the allegations. In reaching its conclusion that sexual acts had occurred, the Committee stated that it accepted the patients evidence and disbelieved that of the
respondent. The Council of the College suspended the respondent from the practice of medicine for 18 months, with stringent conditions for his return to the profession.
On an appeal under the Medical Practitioners Act, the reviewing judge set aside the Inquiry Committees decision, disagreeing with its findings as to credibility. The Court
of Appeal dismissed the Colleges appeal because it could not conclude that the reviewing judge was clearly wrong.
Held: The appeal is allowed with costs to the appellant throughout. The record, including any personal documents and therapeutic records, will remain sealed at this Court
and in the courts below. While the judgment of the Court and the courts below will remain public, publication of the name of the complainant and of any facts or other
names that would reveal her identity are banned. Disclosure of the name of a doctor who has been disciplined by the College is a matter normally determined by the
Council of the College of Physicians and Surgeons. Now that a decision has been rendered in this case, the issue of whether Dr. Qs name should be disclosed is to be
decided by the Council in accordance with its normal practices.
The Role of the Reviewing Judge:
(1) The Distinction between Standard of Proof at First Instance and Standard of Judicial Review
The reviewing judge took the requirement for clear and cogent evidence as an entree into a reconsideration of the facts...
The requirement for clear and cogent evidence is a matter relating to the standard of proof employed at the Committee level, ensuring that the Committee is
alive to the gravity of the consequences of their decision. It is a legal standard that the administrative decision-maker must apply to the evidence in order to
determine the outcome of the case. It does not instruct a reviewing court on how to scrutinize the decision of the administrative decision-maker. This is solely a
question of standard of review, to be resolved by applying the pragmatic and functional approach.
(2) The Primacy of the Pragmatic and Functional Approach
This brings us to the second erroneous assumption that because the Act grants a right of appeal, the matter could be dealt with without recourse to the usual
administrative law principles pertaining to standard of review.
(3) A Review of the Pragmatic and Functional Factors
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors the presence or absence of a
privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation
and the provision in particular; and, the nature of the question law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern
legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law. I find the approach taken in the courts below problematic.
The virtue of the pragmatic and functional approach lies in its capacity to draw out the information that may be relevant to the issue of curial deference...
The first factor focuses generally on the statutory mechanism of review. A statute may afford a broad right of appeal to a superior court or provide for a
certified question to be posed to the reviewing court, suggesting a more searching standard of review: (see Southam; Baker) A statute may be silent on the
question of review; silence is neutral, and does not imply a high standard of scrutiny: (Pushpanathan) Finally, a statute may contain a privative clause, militating
in favour of a more deferential posture. The stronger a privative clause, the more deference is generally due.
The second factor, relative expertise, recognizes that legislatures will sometimes remit an issue to a decision-making body that has particular
topical expertise or is adept in the determination of particular issues.... Thus, the analysis under this heading 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: (Pushpanathan)
Relative expertise can arise from a number of sources and can relate to questions of pure law, mixed fact and law, or fact alone...Simply put, whether because of
the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, an administrative body called upon to answer a
question that falls within its area of relative expertise will generally be entitled to greater curial deference: (Pushpanathan)
The third factor is the purpose of the statute...If the question before the administrative body is one of law or engages a particular aspect of the legislation, the
analysis under this factor must also consider the specific legislative purpose of the provision(s) implicated in the review. As a general principle, increased deference
is called for where legislation is intended to resolve and balance competing policy objectives or the interests of various constituencies: (Pushpanathan
where Bastarache J. used the term polycentric to describe these legislative characteristics)
The final factor is the nature of the problem...Consequently, in the context of judicial review of administrative action, the nature of the question is just one of four
factors to consider when determining standard of review.
(4) Application to the Case at Bar
Applying the pragmatic and functional approach in this case, the four factors lead to a standard of reasonableness simpliciter. The fact that the statute provides
a broad right of appeal and that the Committee is no more expert than the courts on the issue in question suggests a low degree of deference.
On one hand, the legislatures intent for the legislation as a whole was to assign to the College the role of balancing competing interests and multiple policy
objectives, like the protection of the public, education and qualification of members, the setting of standards of ethics and practice, and the administration of privacy
regimes: the Act, s. 3. This purpose suggests considerable deference. However, the discrete issue of adjudicating a claim of professional misconduct the
particular issue that the statute puts before the Committee is quasi-judicial in nature, and therefore militates against deference. In the result, the purpose analysis
counsels neither for great deference, nor for exacting scrutiny.
Finally, however, the need for deference is greatly heightened by the nature of the problem a finding of credibility. Assessments of credibility are
quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.
Balancing these factors, I am satisfied that the appropriate standard of review is reasonableness simpliciter. The reviewing judge should have asked
herself whether the Committees assessment of credibility and application of the standard of proof to the evidence was unreasonable, in the sense of not being
supported by any reasons that can bear somewhat probing examination
The Role of the CA:
The Court of Appeal should have corrected the reviewing judges error, substituted the appropriate standard of administrative review, and assessed the
Committees decision on this basis...It follows that the decisions of the reviewing judge and the Court of Appeal should be set aside and the order of the College
restored.
QUESTIONS OF LAW
-In Dunsmuir, the majority stated that a court should also adopt a correctness standard in the case of certain questions of law.
-Correctness is required for questions of general law that are both of central importance to the legal system as a whole...
-Also, the majority reserved a correctness standard for the well-established, but widely debated, category of jurisdictional questions.
-The following case dates well before Dunsmuir, but offers nonetheless a good example of a question of law that appears to fall within the Dunsmuir subcategory of
general questions of law.
-This case introduced 4 factors and decided mainly because it was not their area of expertise as it was international law that standard of review correctness:
Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998) 1 SCR 982
PRINCIPLE: The ultimate question is always what the legislature intended. The case marks a point at which SCC becomes more careful when deferring expertise to
tribunals.
Facts: Appellant from Sri Lanka, claimed refugee status. Granted Permanent Residency. Convicted for conspiracy to traffic - 8yrs. Need IRB hearing to determine if
excluded under 1F(c) of the 1951 Convn. Minister attempts to deport. Deportation of resident is conditional re: person not a Convention Refugee. IRB: not a CR (upheld
at FCTJ and FCA).
Issue: what is the proper standard of judicial review over decisions of the Immigration and Refugee Board?
Held: correctness standard of review based on the pragmatic and functional approach.
The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is
being reviewed. More specifically, the reviewing court must ask: "[W]as the question which the provision raises one that was intended by the legislators to be left to the
exclusive decision of the Board?"
But it should be understood that a question which "goes to jurisdiction" is simply descriptive of a provision for which the proper standard of review is correctness,
based upon the outcome of the pragmatic and functional analysis.
Factors to Be Taken into Account:
The factors to be taken into account in determining the standard of review have been canvassed in a number of recent decisions of this Court, and may be divided into four
categories:
(i) privative clause
(ii) expertise
(iii) Purpose of the Act as a Whole, and the Provision in Particular
(iv) The Nature of the Problem: A Question of Law or Fact?
(i) Privative clause:
The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard.
However, the presence of a "full" privative clause is compelling evidence that the court ought to show deference to the tribunal's decision, unless other factors
strongly indicate the contrary as regards the particular determination in question.
A full privative clause is "one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are
excluded". Unless there is some contrary indication in the privative clause itself, actually using the words "final and conclusive" is sufficient, but other words might suffice if
equally explicit.
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.
(ii) Expertise:
Described by Iacobucci J. in Southam, as "the most important of the factors that a court must consider in settling on a standard of review".
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.
3 indicia of expertise:
knowledge of DMs,
special procedure,
non-judicial means of implementing the Act
Bradco: "On the other side of the coin, a lack of relative expertise on the part of the tribunal vis--vis the particular issue before it as compared with the reviewing
court is a ground for a refusal of deference".
In short, a decision which involves in some degree the application of a highly specialized expertise will militate in favour of a high degree of deference, and towards a
standard of review at the patent unreasonableness end of the spectrum.
(iii) Purpose of the Act as a Whole, and the Provision in Particular:
What is its role Policy? Interpret facts? Adjudicative?
As Iacobucci J. noted in Southam, purpose and expertise often overlap. The purpose of a statute is often indicated by the specialized nature of the legislative
structure and dispute-settlement mechanism, and the need for expertise is often manifested as much by the requirements of the statute as by the specific qualifications of
its members.
Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but
rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes.
o i.e. Southam court found the aims of the Act are more economic than they are strictly legal...
If Board has a role in policy development, suggests a greater degree of deference.
Where polycentric purposes (balancing of multiple interests, policy issues, protection of public, choice of administrative response or remedies) weighs in favour of
greater deference.
(iv) The Nature of the Problem: A Question of Law or Fact?:
Courts should be less deferential of decisions which are pure determinations of law.
Southam, Iacobucci J., who stated: Of course, 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 very particular set of circumstances that is not apt to be of much interest
to judges and lawyers in the future.
Generality of the proposition decided and a high precedential value will be factors in favour of the imposition of a correctness standard
Iacobucci J. in Southam, that a determination which has "the potential to apply widely to many cases" should be a factor in determining whether deference should
be shown.
When complicated need to decide if the decision will establish a rule of wide application less deference and toward the correctness standard.
Mossop In general, deference is given on questions of fact because of the "signal advantage" enjoyed by the primary finder of fact. Less deference is warranted
on questions of law, in part because the finder of fact may not have developed any particular familiarity with issues of law.
Application of P& F (concludes proper standard is CORRECTNESS):
(1) No strong privative clause. IRPA permits appeals on any issue of general importance.
Where there is an issue of general future importance, the court is invited to review.
(2) Board has no relative expertise in matter of law that was at issue
Only 10% of Board members are required to be lawyers
Mossop and Trinity U HR matters usually seen as ones where tribunals have no relative expertise compared to the crt b/c of international instruments and the
nature of the Qs.
Strong leaning lately toward the correctness standard
Doesnt look at practice here (constituting special panel to hear the particular case)
(3) Board not responsible for policy development
Given this certified Q procedure, it would go against legisl intention to show deference of IRB looking at the regulatory nature of statutory appeal
Clear that he had already decided the matter at the nature of the Q factor; its a HR interpretation Q.
(4) Nature of the Question: This is a precedent setting Q of general application.
The Proper Standard: Correctness:
In my judgment, however, applying the pragmatic and functional analysis to the Act indicates that the decision of the Board in this case should be subjected to a standard of
correctness.
The key to the legislative intention as to the standard of review is the use of the words "a serious question of general importance".
o In short, s. 83(1) of the Act grants a statutory right of appeal based upon the criterion of "generality".
Moreover, the Board appears to enjoy no relative expertise in the matter of law which is the object of judicial review here.
... the Boards expertise in the matters relating to human rights is far less developed than that of human rights tribunals.
Note: is this another judgment like Mossop in that it represents an unwillingness to concede to the tribunal any deference on issues in which human rights concerns arise?
NOTES:
-In Dunsmuir and Khosa, the SCC stated that an administrative tribunal is to be shown deference in the interpretation of it home statute or of statutes closely
related to its function. In doing so, the court reinforced a position originating in the decision in CUPE, in which Dickson acknowledged the statutory language
may be open to a range of interpretations and that it is not up to the court to substitute its preferred reading for that is an expert decision-maker operating on
its specialized terrain.
-For a more recent decision, which followed these cases is: Investment Dealers Association of Canada v Dass [2008] (p779)
DISCRETIONARY AND POLICY QUESTIONS IN THE STANDARD OF REVIEW ANALYSIS
-The decision in the SCC in Khosa provides an example of how the standard of review analysis may apply to a discretionary decision.
-It thus also elaborates a context in which courts will show deference based on the nature of the question before an administrative actor.
-Thus, Khosa reiterates the important role of the nature of the question, post-Dunsmuir.
-The courts characterization of the question as discretionary, based on the applicable statutory language, did not determine outright the standard of review. But it clearly
played an important role in supporting the courts decision to apply a reasonableness standard.
_____________Canada (Citizenship and Immigration) v Khosa [2009] _________________
PRINCIPLE: when the standard of review is defined as patent unreasonableness, the legislature is calling for DEFERENCE if the decision is reviewed
Facts: K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In
2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid removal order was issued to return him
to India.
K appealed the order, but the majority of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, after considering the Ribic factors and the
evidence, denied special relief on humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act (IRPA). A majority of
the Federal Court of Appeal applied a reasonableness simpliciter standard and set aside the IAD decision.
Held: The appeal is allowed and the decision of the IAD is restored. When the standard of review is defined as patent unreasonableness, the legislature is calling for
deference if the decision is reviewed
-Khosa suggests that from a practical perspective, decisions will receive the same sort of deference, whether the standard is reasonableness or a statutorily set as patent
unreasonableness
NOTES:
-As in Baker, Khosa involved a decision to refuse to allow a non-citizen to remain in Canada following an administrative decision to reject the individuals petition for relief
on humanitarian and compassionate grounds.
-Unlike in Baker, where the decision was made by an immigration officer, the decision in Khosa was taken after a hearing by a tribunal of the Immigration Appeal Division.
-Also, in Baker, the decision to refuse Mrs. Bakers application was overturned by the SCC on the basis that the immigration officer failed to consider the best interests of
Mrs. Bakers children, making the decision unreasonable.
-This outcome was groundbreaking at the time because the court established that even discretionary choices of administrative agencies were not entitled automatically to
the highest level of deference (the court applied the pre-Dunsmuir standard of reasonableness rather than patent reasonableness) simply because they were
discretionary.
-In Khosa, the question was classified as discretionary because of the breadth of the statutory language granting the Immigration Appeal Division its authority to review Mr.
Khosas application. The IAD was authorized to give special relief from removal on the basis of humanitarian and compassionate considerations...in all circumstances.
-By rejecting Mr. Khosas application for JR and upholding the IADs decision, the court in Khosa clearly signalled a reluctance to interfere with the
discretionary choices of an administrative tribunal!
THE DISAGGREGATION DILEMMA: LEVIS AND VIA RAIL
-2 prominent cases on segmentation, both preceding Dunsmuir:
Levis (City) v Fraternite des policies de Levis Inc [2007];
Council of Canadians with Disabilities v VIA Rail Canada Inc [2007]
-Disaggregation = To divide into constituent parts. To break up or break apart.
-It is a vexing issue and it has caused major differences of view on the court.
-In its post-Dunsmuir decision in Workers Compensation Act (Re) and ODonnell [2008], the Yukon CA considered and rejected the option of disaggregating a
question of law from the decision as a whole.
Facts: The case involved an appeal from a Yukon Supreme Court decision that had quashed a decision of the Yukon Workers Compensation Appeal Tribunal. The SC
chambers judge based his decision to quash on the conclusion that the tribunal decided incorrectly a number of pure legal questions arising from the Workers
Compensation Act 2002 and the Yukon Workers Compensation Health and Safety Board Policy. This decision was appealed by ODonnells employer, the government of
Yukon.
Held: Appeal allowed. The Tribunals decision is restored and each party bear its own costs.
The essential basis of the employers appeal is that the chambers judge failed to properly apply the reasonableness standard of review....
In my view, it is questionable whether the pure legal questions identified by the chambers judge in this case were in fact all questions of law. What is
certain is that they were not readily separated from the general question in issues and were not of central importance to the legal system and outside the
specialized expertise of the Tribunal (Dunsmuir)
Considering all of the relevant factors, there can be no doubt that the appropriate standard of review in this case was one of reasonableness. Indeed,
as I have noted, that was the standard chosen but the chambers judge, preferring that standard over the standard of patent unreasonableness urged by the
employer. The issue on this appeal really concerns whether the reasonableness standard was properly applied by the chambers judge.
JURISDICTIONAL QUESTIONS AND THE ORIGINS OF
THE STANDARD OF REVIEW ANALYSIS
INTRODUCTION
-The reference to the CUPE decision was important because that decision marked a turning point in the jurisprudence of the SCC away from earlier expansive approaches
to the notion of jurisdiction.
-The point from CUPE to Dunsmuir reflects an approach by which a reviewing court must confirm that a statute implies that the legislature intended for the decision-maker
to decide whether it should answer a question or engage in an activity connected to its statutory authority.
-So long as the statute implies that the decision-maker has this authority to decide on the scope of its own authority, a court should be satisfied that the decision-makers
interpretation of its parent statute has not engaged a question of jurisdiction but rather, a question of law.
-There remains uncertainty today about just how far the concept of true questions of jurisdiction now extends. This is particularly so in light of the pervasiveness of broad
approaches to jurisdictional error in the history of Canadian JR, as Dunsmuir wards against.
-Indeed, for the longest time, the theory and practice of substantive review were dominated by the concept of jurisdiction.
THE CONCEPT OF JURISDICTIONAL ERROR
- In other words, "jurisdictional error" is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal
must make a correct interpretation and to which no deference will be shown. (Pushpanathan v. Canada) -For jurisdictional surveillance is left to its own devices, an
administrative agency will tent to implement its enabling legislation in a way that expands its regulatory reach.
-The courts and the common law are no more neutral than administrative agencies, and that their approach to statutory interpretation had often exhibited an anti-regulation
and pro status quo bias.
-Moreover, as interpreters of public policy statutes, courts are at a serious disadvantage when compared with the specialist agency to which the legislature has entrusted
the administration of the legislation. They are removed from the realities of administering a public program and are unable to formulate comprehensive solutions to what are
often complex choices of public policy and its effective delivery and not legal questions suitable for determination by the courts.
-...Thus, the concept of jurisdiction may aid this search, but only in limited ways and at the risk of obfuscation and confusion.
-The following excerpt from the decision of Evans offers assistance in understanding how the concept of jurisdiction can be understood.
_______Public Service Alliance of Canada v Canadian Federal Pilots Association [2009]____
Facts: The case involved an appeal to the Federal Court of Canada under the Federal Courts Act. The appeal was from a decision of the Public Service Labour Relations
Board to allocate 3 positions in the federal public service to an occupational group and its bargaining unit in the relevant job descriptions. Both the Public Service Alliance
of Canada and the A-D of Canada appealed the PSLRBs decision. They argued, among other things, that the PSLRB had made a jurisdiction error and that decision
should therefore be set aside pursuant to s.18.1(4)(a) of the Federal Courts Act, which allowed the Federal Court to provide relief where a federal board, commission or
tribunal acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction.
Issue: Did the Board exceed its jurisdiction by allocating the positions to the AO bargaining unit?
Held:
To conclude, in order to establish that the Board has exceeded its jurisdiction by misinterpreting a provision in its enabling statute, which neither raises a question
of law of central importance to the legal system nor demarcates its authority vis--vis another tribunal, an applicant must demonstrate that the Boards
interpretation was unreasonable.
The only qualification that I would add is that the tribunal must have the legal authority to interpret and apply the disputed provision of its enabling
legislation. However, administrative tribunals performing adjudicative functions, such as the Board, normally have explicit or implied authority to decide all
questions of law, including the interpretation of its enabling statute, necessary for disposing of the matter before it
In my view, it is too late in the development of administrative law in Canada for an applicant to invoke the ghost of jurisdiction past to inveigle the Court into
reviewing for correctness a tribunals interpretation of a provision in its enabling statute, without subjecting it to a standard of review analysis. It would, in my
view, make no sense to apply a correctness standard when the tribunal has the authority to interpret and apply the provision to the facts, and a
standard of review analysis indicates that the legislature intended the tribunals interpretation to be reviewed only for unreasonableness.
THE PRELIMINARY QUESTION DOCTRINE:
-The preliminary question doctrine was unsatisfactory in both theory and practice.
-Prior to CUPE, judicial review followed the preliminary question doctrine, which inquired into whether a tribunal had erred in determining the scope of its jurisdiction.
-By simply branding an issue as jurisdictional, courts could replace a decision of the tribunal with one they preferred, often at the expense of a legislative intention that the
matter lie in the hands of the administrative tribunal.
-CUPE (1979) marked a significant turning point in the approach of courts to judicial review, most notably in Dickson J.s warning that courts should not be alert to brand as
jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.
-Dickson J.s policy of judicial respect for administrative decision making marked the beginning of the modern era of Canadian administrative law (Dunsmuir 2008).
-CUPE did not do away with correctness review altogether and in Bibeault (1988), the Court affirmed that there are still questions on which a tribunal must be correct.
-As Beetz J. explained, "the jurisdiction conferred on administrative tribunals and other bodies created by statute is limited, and ... such a tribunal cannot by a
misinterpretation of an enactment assume a power not given to it by the legislator".
-Bibeault introduced the concept of a "pragmatic and functional analysis" to determine the jurisdiction of a tribunal, abandoning the "preliminary question" theory.
-This is that the decision-making power of administrative agencies is legally limited and that it is the function of the courts to ensure that agencies to not exceed the limits
imposed by the legislature on their authority to decide.
-Thus, despite the presence of a primitive clause, the courts must determine whether the agency correctly interpreted any provision in its enabling statute that
confers, limits, or describes its jurisdiction.
-However, jurisdiction-limiting clauses are to be identified by the standard of review analusis as a whole, and NOT by the formalistic approach to statutory
language that followed form the preliminary question doctrine.
WRONG QUESTIONS AND IRRELEVANT CONSIDERATIONS:
-As part of the expansion of JR of administrative action that occurred in England in the late 1960s, the HL abandoned the preliminary question approach to defining those
questions of law that remained subject to JR.
-The SCC has rendered its historical interest only in the approach to jurisdictional review contained in Metropolitan Life Insurance Co. v International Union of
Operating Engineers, Local 796 [1970] which reflected an assumption that the interpretation of an agencys enabling statute was a matter for the courts and, despite a
string privative clause, the agencys decision could be set aside if the court thought it was based on an error of law, including a misinterpretation of the agencys enabling
statute.
-The SCC also sought to limit an expansive approach to jurisdiction along the lines of the preliminary question doctrine, which preserving the role for true questions of
jurisdiction, understood in the narrow sense of the authority to enter into an inquiry.
-To shed further light on what the narrow concept of jurisdiction is meant to capture, it is essential to examine one of the seminal decisions in Canadian substantive review.
THE ORIGINS OF THE STANDARD OF REVIEW ANALYSIS: CUPE (1979)
-Dunsmuir adopted a cautious approach to the concept of jurisdiction. It did so, in part, by referring to Dicksons decision in CUPE.
-The CUPE decision marked a major turning point in Canadian administrative law because past approaches to substantive review had per reviewed virtually any question
of law to be approached as a question of jurisdiction and thus, reviewed on a correctness standard. And if questions were not treated as jurisdictional and was protected by
a full privative clause, it would be entirely insulated from review.
-CUPE initiated a move away from the existing approaches to review for jurisdictional error. The decision called for restraint by courts when reviewing administrative
decision-makers, even in matters of statutory interpretation.
Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation (1979) 2 SCR 227 (NB)
Facts: Strike by CUPE members at a liquor store. CUPE complained that employer violated the Public Service Labour Relations Act (PSLRA) by replacing striking
employees with management contravening s.102(3). Case turned on interpretation of section 102(3) - prohibited employers from replacing striking workers or fill their
position with any other employee. Employer argued that management who filled the positions were not defined as employee in the Act. Board decided in favour of union
and ordered employer to refrain from using management personnel.
Issue:How much deference is owed to the labour boards decision when there is a privative clause? Was the decision so unreasonable that the jurisdiction is lost?
Held:When privative clause exists, the standard of review will be patent unreasonableness (more deference own by court to tribunal Decision Makers) => huge shift in
Judicial Review and admin law in Canada (from correctness to patent unreasonableness). The Boards interpretation was not so patently unreasonable that the courts
should interfere jurisdiction upheld, thus, not subject to JR.
Must consider: privative clause, high degree of specialization of tribunal, broad scope of powers given by legislation, and the particular unique features of this labour
legislation (speed) a high degree of deference to the board, however they are NOT immune from review SofR is one of patent unreasonableness.
I find it difficult to brand as patently unreasonable interpretation given to s.102(3) by the Board. At minimum, the Boards interpretation would seem at least as
reasonable as the alternative interpretations. Certainly the Board cannot be said to have misinterpreted the provision in question as to embark on an inquiry or answer a
question not remitted to it
Patent unreasonableness so unreasonable that it cannot be rationally supported by relevant legislation and demands intervention from the court.
AFTER CUPE: EVOLUTION OF THE PRAGMATIC AND FUNCTIONAL APPROACH
-Naturally, many issues raised in CUPE have been revisited and elaborated in numerous decisions, most recently in Dunsmuir
-For example, in Dunsmuir, not all questions of law arising from the interpretation of a decision-makers enabling statute are said to warrant deference. This is
so where the question of law is considered to be of central importance to the legal system as a whole and outside of the specialized expertise of the decision
maker.
-One might treat this description of the very concept of jurisdiction, such that a question of jurisdiction is understood simply to be a question of law which, based on the
pragmatic and functional approach, attracts a correctness standard (Pushpanathan).
-In elaborating this point, Dunsmuir echoes the reaction to CUPE that emanated from the later decisions as in Syndicat. Another marker of the origins of the standard of
review analysis is the decision of the SCC in Bibeault.
Introduced the phrase pragmatic and functional:
Union des employes de service, Local 298 v Bibeault (1988) 2 SCR 1048 (Que.)
PRINCIPLE: Pragmatic and functional approach is the approach now for determining whether a tribunal has jurisdiction to adjudicate an issue.
Facts: School board sub-contracted janitorial services to contractor (EEs were union members). Engaged in illegal strike, government terminated employment contract
and awarded it to another contractor. Employees of 1st sub-contract, argued that employer was prohibited from hiring second sub-contract and working outside provisions
of 1st CBA (bound by successor provisions of statute). Are there successor rights for the 1st U? Turned on words of the statute alienation or operation. Labour
Commissioner: broad reading of statue; successor rights apply.
Held: The tribunal did not have authority to decide issues before it there were no successor rights. Therefore, standard of review is correctness.
Beetz J.: It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:
(1) if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is
competent to answer a question may make errors in so doing without being subject to judicial review.
If question is within tribunals jurisdiction then standard is patent unreasonableness.
(2) if however the question at issue concerns a legislative provision limiting the tribunals powers, a mere error will cause it to lose jurisdiction and subject the tribunal to
judicial review.
If question concerns whether tribunal has jurisdiction standard is correctness.
Must therefore determine whether question at issue was within boards jurisdiction to decide.
How to Determine the Tribunals jurisdiction?(Preliminary question before determining the Standard of Review) Courts should use the Pragmatic and Functionalanalysis
to determine jurisdiction that requires looking to several factors:
(1) Wording of legislation (privative clauses?)
(2) Purpose of statute conferring jurisdiction
(3) Reason for tribunals existence, its raison detre
(4) Area of expertise of its members
(5) Nature of the problem before the tribunal (law, fact, mixed)
Pragmatic and Functional approach advantages:
refocuses inquiry away from isolated provisions of the statute to legislative intent.
better suited to jurisdictional questions than a formalistic approach because it focuses on consequences of decision and function rather than formal classification
circular justification - you cant decide jurisdiction w/ lines and boxes want more nuanced approach.
emphasizes processes of the superior courts and role of courts as guardian of the law.
Therefore:
-The introduction of a factor-based approach to the standard of review analysis raised the prospect that a factor other than the presence of a strong privative clause could
lead a court to defer, even on questions of law, to an administrative decision-maker. It might also allow a tribunal to claim deference based on its specialized expertise
alone (Pezim and Southam).
-However, to this day, the role of expertise as a counter to a statutory right of appeal on a question of law has led to differences of view. As we saw in Dunsmuir, the
majority left open the possibility of deference to a tribunal on this basis.
-We conclude this chapter with the following excerpt from the decision pof the Alberta Court of Appeal in Boarder Paving.
-The reasons of the CA here provide a useful example of a cautious approach as directed by CUPE and by Dunsmuir to an attempt by a party to classify an issue of
statutory interpretation as a jurisdictional question:
______Border Paving Ltd. v Alberta (Occupational Health and Safety Council) [2009]_____
PRINCIPLE: When a council is its own specialized tribunal with its own enabling statute, it is at the broad discretion of this council to make judgement.
Facts: a paving machines rollover which resulted in serious injury to its operator caused the Officer, among other things, to order the appellant to equip all RayGo 304A
road roller paving machines (RayGo)with rollover protection, and provide documentation for review and lifting of the associated stop work order. The appellants appeal to
the Occupational Health and Safety Council (Council) pursuant to sec.16(1) of the Occupational Health and Safety Act 2000 (OHSA)was rejected. Appeals from Council
decisions on questions of law or jurisdiction may be made to the court of Queens Bench: s.16(5). The employers appeal from the Councils decision to the Court of
Queens Bench was dismissed.
The appeal judge concluded that reasonableness was the appropriate standard of review to apply to the Councils decision. Among other things, he relied on the
employers sorry record to conclude that the health and safety of Alberta workers employed by Border justified the Order, and the Councils decision to uphold it was
reasonable.
Held: appeal dismissed
The four factors to consider in the contextual standard of review analysis are whether there is a privative clause in the legislation, the purpose of the tribunal as
determined by the interpretation of enabling legislation, the nature of the question at issue and the expertise of the tribunal: Dunsmuir...the existing standard of
review analyses concerning the tribunal may be used: Dunsmuir...
As emphasised above...the enabling provisions grant an officer considerable latitude in determining whether work is being conducted safely or in accordance with
the legislation, as well as in selecting the appropriate measures to remedy safety concerns. And as noted in Dunsmuir, deference will usually apply automatically to
questions of discretion decided by a tribunal interpreting its own statute. Accordingly, this factor also indicates deference to the Council.
In summary, although the OHSA grants a statutory right of appeal, the Council is a specialized tribunal interpreting a provision of its enabling statute
which grants a health and safety officer broad discretion to direct remedial measures in response to safety concerns. Therefore, a reasonableness
standard applies to the Councils decision
Summary
Pragmatic and Functional Approach:
1. Presence or absence of a privative clause or statutory right of appeal
1. Privative clause is not determinative (i.e., absence not automatically correctness std., presence not automatically a P.U. std.)(Pushpanathan)
2. Strong privative clause weighs in favour of greater deference.
2. Expertise of tribunal relative to the reviewing court on the issue in question (Pushpanathan)
1. May derive from specialized knowledge of a topic, or from experience and skill in the determination of particular issues
2. Relative expertise in tribunal weighs in favour of greater deference
3. Purpose of the legislation and the provision in particular;
1. Where polycentric purposes (balancing of multiple interests, policy issues, protection of public, choice of administrative response or remedies) weighs in favour
of greater deference (Pushpanathan)
4. Nature of the question (law, fact, mixed).
1. Generality of a question to be decided is indicative of a more legal, less factual question

2. Factual questions tend towards greater deference, legal questions tend towards less deference.
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11/10/2017 Administrative.

Clic Bias and Lack of Independence

-Two important branches of natural justice:

Three types of Bias:

(2) Institutional or structural bias

BIAS: THE GENERAL TEST:

(2) An association between one of the parties and a decision maker

(3) An involvement by a decision maker in a preliminary/earlier stage of the process/decision, and

1) ANTAGONISM DURING THE HEARING:

Baker v Canada (Minister of Citizenship and Immigration)

PRINCIPLE: Antagonism may also be a problem in written or paper hearings.

2) ASSOCIATION BETWEEN PARTY AND DECISION MAKER

-A simple example of this group of cases is:

3) INVOLVEMENT OF DECISION MAKER IN EARLIER STAGE OF PROCESS

-The leading Canadian case on the test for bias is:

STATUTORY AUTHORIZATION (of bias)

Brosseau v Alberta (Securities Commission) (1989) 1 SCR 301

PRINCIPLE: a certain amount of bias may be allowed if permitted by statute.

As with most principles, there are exceptions.

E.A. Manning Ltd. v Ontario Securities Commission

-This means that:

-Below are examples of each:

Only need 5 of 7 members to agree. However, 0 agreed here.

-Mackinnon ACJO: I agree with Weatherston.

This is not, in my view, the exceptional

o National Energy Boardtest reasonable and right-minded person.

Large v Stratford (City) (1992) 9 OR (3d) 104

PECUNIARY AND OTHER MATERIAL INTERESTS

-Our illustrative modern case is stated below in Energy Probe.

Energy Probe v Canada (Atomic Energy Control Board) (1984)

PRINCIPLE: interest must NOT be too remote to be a pecuniary interest.

VARIATIONS IN STANDARDS FOR BIAS

-Court must classify tribunal as:

-City Councils = the executive function; different standards for bias.

o Higher bias threshold to pass for Municipal councillors.

Nature and functions of a municipal body:

Re Cadillac Development Corp. Ltd. (1973)

Issue:reasonable apprehension of bias of board member?

Composition/Function of Administrative Boards:

-Nature of Administrative Boards

-Board of Commission of Public Utilities

Bias at different stages of hearing:

-Once matters proceeded to a hearing, a higher standard had to be applied.

Application of test in Baker:

________________Pelletier v Canada (Attorney General [2008]_______________________

INDEPENDENCE (institutional level and independent level)

Sethy v. Canada (Minister of Employment and Immigration) (1988) FCA

Principles of Independence (Valente):

Alex Couture Inc. v Canada (Attorney-General) (1991) 83 DLR (4th) 577

Doman v British Columbia (Superintendent of Brokers) (1996)

Canadian Pacific Ltd. v Matsqui Indian Band (1995) 1 SCR 3

Does natural justice apply to Aboriginal affairs?:

Application of the Valente principles:

Application of the Valente principles to Matsqui Indian Band:

Nowegijick v. The Queen (1983) 1 SCR 29

This principle was affirmed by La Forest J. in:

Mitchell v. Peguis Indian Band (1990) 2 SCR 85

Issue: security of tenure.

The rule restricting the delegation of legal powers and duties,

The duty of disclosure, and

The impartiality and independence of the decision-maker.

Advantages/Disadvantages of institutionalizing the decision-making process:

Professor Blache (quoted in Consolidated-Bathurst)

-This is normally applied in matters relating to principle and agent

Pelletier v Canada (Attorney General [2008]_______

_______Vine v National Dock Labour Board [1957]_

____Local Government Board v Arlidge [1915]

___Thamotharem v Canada (Minister of Citezenship and Immigration) [2008]_