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ADMINISTRATIVE LAW EXAM FRAMEWORK

PRELIMINARY ANALYSIS OF FACT PATTERN:


 What is the decision? Is it an order or a remedy or a refusal to grant an exemption etc.?
 What is the authorising statute?
 Remember to keep in mind:
o Legislative intent
 Is the action authorized?
 What is the wording of the provision? Permissive or mandatory? Discretion given?
o Judicial deference – do the factors indicate more or less deference?

ISSUES
A. Availability of Judicial Review
 Framing of questions:
o Consider the decision of a Warden to reject an inmate’s complaints and designate her as a frivolous complainant.
Where should the inmate take her appeal of these decisions? Will she be able to obtain relief if she applies to the
federal court for judicial review?

Dunsmuir: not available if contract.

B. Procedural Fairness
 Framing of questions:
o What if any breaches of procedural fairness may be advanced to challenge the decision?
o Evaluate the likelihood of success of review for procedural fairness.
o Consider also how the complainant’s procedural rights might change (if at all) if her s. 7 Charter rights are implicated by
the decision.

Baker: Oral hearing and provision of reasons

Dunsmuir:

C. Substantive Review
 Framing of questions:
o Identify the question that arguably goes to jurisdiction and provide a brief discussion of whether this concern
constitutes (or does not constitute) a “true question of jurisdiction” under Dunsmuir.
o What standard of review would apply and why?
o Is the decision likely to withstand review on that standard and why?

D. Remedies

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I. IS JUDICIAL REVIEW AVAILABLE (NOW OR AT ALL)?
 Is there a basis for the Court to exercise its discretion not to grant relief?
o Yes, if application is premature,
o matter is moot, and
o The person seeking JR has exhausted all alternative forms of challenging the tribunal’s action. Alternative remedies are
inadequate if (Harelkin):
 The appellate tribunal lacks statutory authority over, or is not willing to address, the issues the appellant
raises;
 The appellate tribunal does not have statutory authority to grant the remedy the appellant requests;
 The appeal must be based on the record b/efore the original tribunal, but that record does not include
evidence relevant to the applicant or includes evidentiary errors that the appellate tribunal lacks authority to
correct;
 The alternative procedure is too inefficient or costly.
 Is the decision/body amenable to judicial review?
o Was the decision made pursuant to a statute?
o Is the ADM “public enough”? The tribunal must be a public body:
 whether the gov’t directly or indirectly controls the body and whether gov’t would have to occupy that field if
the body were not already performing it  if part of the “machinery of government” subject to JR
 Sniff test: is the ADM government machinery? [Anishnabek - policing]. If fulfilling gov’t function then body will
be part of machinery of gov’t. Look at: functions, gov’t action or control; power of public, nature of members,
funding, and nature of decisions.
 JR is available on exercises of prerogative power (Anishinabek)
 Factors used to distinguish domestic tribunals from public bodies (Anishinabek):
1. The source of the board’s powers;
2. The functions and duties of the body;
3. Whether government action has created the body, or whether, but for the body, the government would
directly occupy the area, such that there is an implied devolution of power;
4. The extent of the government's direct or indirect control over the body;
5. Whether the body has power over the public at large, or only those persons who consensually submit to
its jurisdiction;
6. The nature of the body's members and how they are appointed;
7. How the board is funded;
8. The nature of the board's decisions -- does it seriously affect individual rights and interests;
9. Whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed;
and
10. The body's relationship to other statutory schemes or other parts of government, such that the body is
woven into the network of government.
o Does the party have standing to bring this forward?
 Basic principle
 Public interest standing (Finlay Test)
o What court are we going to? Provincial or federal? The choice of court is determined by whether the source of the
impugned authority is provincial or federal
o Are there any deadlines that have passed? (Statutory limitations or some other drop dead date). make sure you
haven’t missed any deadlines (look at the enabling statute, global procedural and judicial review acts, and rules of
court)
 An inconsistency (conflict of decisions of administrative bodies ) is not a free-standing basis for JR (Domtar)
 Scope of JR is not limited to the certified question from the trial division. The certified question is just a justification for the
decision to be reviewed and the court can look at all aspects of the decision – [Pushpanathan; Baker]
o Pushpanathan: “The certification of a “question of general importance” is the trigger by which an appeal is justified.
The object of the appeal is still the judgement itself, not the certified question.”
o Baker: “[I]f a question of general importance has been certified, this allows for an appeal from the judgement of the
Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to
answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be
considered here.”

Baker: Jamaican mother’s request for a discretionary exemption on H & C grounds was rejected by Immigration Officer Caden based
on the biased reasons of IO Lorenz. Certified question focused on whether the best interests of the child were to be given primary
consideration in assessing the application.
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II. PROCEDURAL FAIRNESS REVIEW:
A. THRESHOLD: Is a duty of procedural fairness owed?

Write-up:
INTRODUCTION:
 The applicant claims that he was denied procedural fairness. Prior to an analysis of whether he is owed a remedy, one must
determine whether the duty of procedural fairness applies to the applicant.
 Thesis: A duty of procedural fairness is owed to the applicant because **.
LAW:
 An administrative decision which is not of a legislative nature and that affects “the rights, privileges or interests of an individual”
will trigger a duty of fairness (Cardinal) subject to certain exceptions. They duty of fairness does not apply to ** (Identify
applicable exceptions/limits)
 The decision was made pursuant to ** (identify the provision in the statute or prerogative power that allowed ADM to make the
decision).
 The sources of the duty are *the enabling statute, which states that .../*s. 7 of the Charter/*the common-law since the statute
is silent on the procedures to be followed.
 The common law will fill the gaps to provide some measure of procedural fairness where the statute is silent (Nicholson). Under
the common-law a decision that is administrative (and not legislative) and which affects “the rights, privileges or interests of an
individual” will trigger a duty of fairness (Cardinal) subject to certain exceptions
APPLICATION:
 1) The decision is administrative because* ;
 2) It affects the rights privileges or interests of an individual because * .
CONCLUSION:
Therefore, a duty of fairness applies.

TEST FRAMEWORK:

 Identify potential sources of the duty:


o Statute:
 The governing statutes, regulations, and general regulatory context
 Tribunal rules, policies, and guidelines;
 Statutory procedural codes such as the Administrative Tribunals Act;
o Common law principles of procedural fairness (Baker);
 CL: where statute is mute, the common law will provide some measure of procedural fairness [Nicholson]
o Bill of Rights ss. 1(a) or 2(e) [Authorson]
o The Charter and other constitutional law principles;
o Other applicable laws.
o Administrative jurisprudence (previous decisions made by the ADM)
o Prerogative power.
 Treaties are made under prerogative power and regulations made pursuant to treaties can be a source of duty
of fairness (Anishinabek).
 Threshold analysis: (common law – Cardinal/Knight; constitutional - s. 7 analysis or analysis under relevant section of Bill of
Rights, or other quasi-constitutional leg.; Statute – may define procedural rights).
o Common-law → duty of fairness applies → Every public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or interests of an individual (Cardinal).
o Constitution → S. 7 of Charter → principles of fundamental justice → life, liberty and security interests.
o Statute → may include procedures to be followed.
o Exceptions/Limits:
 Legislative limit:
 It doesn’t apply to legislative decisions/decisions with legislative “character” or functions [CAP].
Primary legislation is not subject to the duty of fairness. The only constraint on the legislatures is the
constitution and, ultimately, ballot box.
 Cabinet and ministerial decisions will often be characterized in legislative in nature and will be
exempt (Inuit Tapirisat). “A purely ministerial decision, on broad grounds of public policy will typically
afford the individual no procedural protection.” (Martineau)

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 Decisions made subject to subordinate legislation (by-laws/regulations) is generally not viewed to
attract procedural rights. There are exceptions: if the subordinate legislation is enacted to deal with
an individual, then a DoF will arise (Homex).
 Policy decisions don’t attract DoF. Policy is primarily political in nature and subject to political
accountability. Governments are elected to make policy decisions and must be allowed to do so,
provided that they comply with relevant constitutional requirements.
 Distinguish between “decisions of a legislative and general nature” from “acts of a more
administrative and specific nature”
 Final (or defacto final)decisions:
 It applies to final decisions, but, in principle, it doesn’t apply to investigations or advisory processes
that may occur prior to the commencement of a formal decision-making process. This might be
skirted in cases where the prelim inquiry as de facto finality. [Cardinal/Critchlow/Cougar Aviation]
 Contractual relationships:
 The duty does not apply to public office holders employed under contracts [Dunsmuir]. Post-
Dunsmuir it is assumed that a contract of employment addresses procedural fairness issues. There
are two exceptions: employees not protected by employment contracts or subject to employment at
pleasure will be protected by the DoF. The DoF may arise by necessary implication in some statutory
contexts.**need to get exact wording from Dunsmuir.
 The DoF may be suspended in some instances if circumstances dictate it (think Cardinal facts).
 Conclude: Is a duty of fairness owed?
o Duty of fairness applies to H & C decisions – [Baker; Sobrie; Said; Shah].

 Ridge v. Baldwin - a public office holder had a CL entitlement to reasons and a chance to respond before being dismissed from
office - Watch Committee - quasi-judicial body so adhere to principles of natural justice - owed constable a duty of fairness.
 Nicholson v. Haldimand-Norfolk Regional Police Commissioners [1979] - SCC found a duty of fairness to public office-holders.
 Knight v. Indian Head School Division No. 19 [1990] - expanded this duty to include even those officers who were employed "at
pleasure."
 Dunsmuir - retreat by SCC - if public employee under contact, then the contract itself, rather than the CL of procedural review,
determined what if any procedural rights an employee is entitled to.

B. CONTENT OF THE DUTY OF FAIRNESS – What does the duty of fairness require in the relevant
circumstances?

WRITE-UP:
INTRODUCTION:
 The duty of fairness requires two things: audi alteram partem (the right to be heard), which refers to participatory rights and
nemo judex in sua causa, which is the right to an independent and impartial hearing.
 In terms of participatory rights, the applicant claims that his right to ** (a notice/oral hearing/call evidence/cross-examination/
legal counsel/disclosure of information or file so as to know case to meet and opportunity to respond/reasons for judgement)
were infringed.
 In terms of the right to an independent and impartial hearing, the applicant alleges **(tribunal independence/personal
bias/institutional bias).
PARTICIPATORY RIGHTS:
LAW:
 Everything depends on what the duty is understood as requiring in the circumstances, and this has a normative dimension:
fairness requires procedural protection the courts think ought to be required before a decision is made in particular
circumstances. “[T]he concept of procedural fairness is eminently variable, and its content is to be decided in the specific
context of each case.” (Knight).
 Baker: A consideration of the following 5 Baker factors determines the content of the duty:
o 1) nature of the decision being made and the process followed in making it;
o 2) nature of the statutory scheme and the “terms of the statute pursuant to which the body operates;
o 3) importance of the decision to the individual or individuals affected;
o 4) the legitimate expectations of the party challenged it; and
o 5) the agency’s choice of procedures.
 Specific components of the duty of fairness
APPLICATION:
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 *(application of each of the Baker factors to the fact pattern)
 Under the Baker factors *(list factors) militate towards a higher procedural fairness, whereas *(list factors) militate towards a
lower PF.
 The applicant specifically argued that his right to ***.
CONCLUSION:
 A contextual analysis using the Baker factors reveals that the duty of procedural fairness owed is *high/medium/minimal

TEST FRAMEWORK:

1. What is the content of the duty? (Audi Alteram Partem - Hearing rights)
 The content of the duty is flexible and contextual. “[T]he concept of procedural fairness is eminently variable, and its content is
to be decided in the specific context of each case.” – [Knight]
 Review the 5 Baker factors (analysis of context) to identify the relative level of procedural protection called for (do this
regardless of what the source of the DoF (i.e. common law, statutory, or constitutional):

Baker Factors
1) The nature of the decision being made and the process followed in making it
 Decisions that are considered judicial or quasi-judicial in nature are likely to demand more extensive procedural protection than
administrative decisions. Greater procedural protection is likely to be required in an adjudicative context than a regulatory one.
 “[T]he closeness of the administrative process to the judicial process should indicate how much of those governing principles
should be imported into the realm of administrative decision making.” – [Knight]
 “The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the
determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural
protections closer to the trial model will be required by the duty of fairness” (Baker).
o Where is it situated in the spectrum from judicial/adjudicative to administrative/legislative? Are the procedures similar
to a court house? Is it adversarial, cross-examination etc.

Baker: The decision was made by an Immigration Officer based on delegated authority of the Minister. It was an administrative
decision and a discretionary one that the Regulations authorized the Minister to make = low PF.

2) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates
 “Greater procedural protections ... will be required when no appeal procedure is provided within the statute, or when the
decision is determinative of the issue and further requests cannot be submitted.” – [Baker]
o Pay attention to the statute that authorizes the decision making power!
o Is it a final decision? A final decision is going to attract higher PF.
o Is there an appeal process provided for by statute? Less fairness required at the first instance then.
o What is the role of that provision in the statute? Is it an exemption clause? – discretionary decision?
o Is the legislation aimed at poly-centric issues?

Baker: The decision concerned an exemption clause of the Regulations and the Act. An H & C decision involves discretion and
requires consideration of multiple factors – poly-centric. The appeals process was limited, in that there was no right of appeal and it
could only be subject to JR with leave of the court. = more deference = lower PF.
Lafontaine: No appeal procedure

3) The importance of the decision to the individual or individuals affected


 Duty of fairness increases in proportion to the importance of the particular decision to the person it affects. “The more
important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more
stringent the procedural protections that will be mandated.” – [Baker]
o In Baker the court placed A LOT of emphasis on this factor alone.
o High standard is required where the profession or employment is at stake – Kane.

Baker: H & C decision affected Ms. Baker and her children → deportation to Jamaica →affect her health and separation from her two
dependent children = High PF.
Kane: Decision → disciplinary suspension → “can have grave and permanent consequences upon a professional career.” → (loss of
employment) → = high PF
Khan (academic grades) = low PF;
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Charkaoui (risk of torture) = high PF
Gagliano (reputation) = high PF

4) The legitimate expectations of person challenging the relevant decision (procedure and outcome)
 When a government official makes representations within the scope of his or her authority to an individual about an
administrative process the government will follow, and the representations give rise to the legitimate expectation are clear,
unambiguous, and unqualified, the government may be held to its word, provided the representations are procedural in nature
and do not conflict with the decision maker’s statutory duty. (Mavi)
 “[G]overnment representations will be considered sufficiently precise for the purposes of the doctrine of LE if, had they been
made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.” (Mavi)
 If a claimant has a legitimate expectation a certain procedure will be followed, this procedure will be required by the duty of
fairness. If a claimant has legitimate expectations certain decision/outcome will be reached, fairness may require more
extensive procedural rights. (Baker)
o Process: Did the person believe he or she was going to get a particular type of process, such as an oral hearing or
result? Was that expectation legitimate/reasonable?
 Legitimate expectations of procedural protections may arise out of conduct such as representations, promises,
or undertakings or past practice or current policy of the decision maker.
 If LE that certain procedure will be followed, then PF would require that procedure – [Qi v. Canada; Mercier-
Neron]
o Outcome: to outcome can give rise to a LE. This will require more extensive PF – [Canada (AG) v. Canda (Human
Rights Tribunal). Tread carefully here!
 " .. [I]f representations with respect to a substantive result are made to an individual, the duty owed to him by
that public authority in terms of the procedures it must follow before making a contrary decision will be more
onerous." (Agraira)
o Is the representation clear, unambiguous, and unqualified? (Mavi)
 "Generally speaking, government representations will be considered sufficiently precise for purposes of the
doctrine of LE if, had they been made in the context of a private law contract, they would be sufficiently
certain to be capable of enforcement."
o Conduct of public officials giving rise to a LE may include:
1. Express promises and representations that are procedural in nature and do NOT conflict with statutory duties
(clear, unambiguous, unqualified – see Mavi at 68).
2. Regular practices (i.e., always hold an oral hearing for H&C decisions).
3. Agency choices & “soft law” (i.e., policy guides)?
4. Expressions of gov’t policy by the executive such as signing international agreements (e.g. Baker – at para 29,
NOT decided; Suresh)
o LE does not create substantive rights – [Old St. Boniface; Re CAP]
o A person cannot have a LE that a statute won’t be changed or that a statute won’t be passed.
o LE is akin to a promissory estoppel.
o If LE is found then high PF, if no LE is found there is no effect on PF.

Old St. Boniface:


Reference re CAP: Feds signed an agreement to provide notice but they used Parliament to circumvent having to do so and it worked
b/c LE cannot be used to bind the legislature
Baker: Convention on the Rights of the Child did not create a LE – not equivalent to a government representation.
Mavi: IRPA includes gov’t representation of discretion on enforcement in “situation of abuse or other inappropriate circumstances”
given LE created gov’t CANNOT proceed without notice or permitting sponsors to argue for deferral. ***LOOK UP
Agraira: The Guidelines created a clear, unambiguous, and unqualified procedural framework for the handling of relief applications,
and thus, a legitimate expectation that that framework would be followed.

5) The choices of procedure made by the agency itself


o What procedures did the ADM put into place? Consider the expertise of the ADMs.
o The procedural choices made by the decision-maker must be taken into account in determining the requirements of
the duty of fairness.
o “[T]he analysis of what procedures the duty of fairness requires should take into account and respect the choices of
procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability [and
discretion] to choose its own procedures, or when the agency has an expertise in determining what procedures are
appropriate in the circumstances.”

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o Decision makers have superior knowledge of not only needs but also the needs of the community it serves.

Baker: The Immigration Officers making H & C decisions were provided with a set of guidelines.

 Sub-conclusion: What is the level of PF with respect to the type of hearing right at issue?
o Balance contextual factors. Group together factors that militate towards PF and those away from PF. Type out what
factors weighed in favour of PF and what factors weighed against PF.
o What is the resulting PF? Minimal, more than minimal, high?
o Consider what level of PF the above analysis translates into for particular hearing rights e.g. Oral hearing.

Baker: immigration cases involving applications for stays based on humanitarian and compassionate grounds = high PF. (oral hearing
and provision of reasons).
Charkaoui: security certificate hearings that may result in deportation = high PF
Khan: academic review of grades = low PF

Example:
“Several of the factors above enter into the determination of the type of participatory rights the duty of procedural fairness requires
in the circumstances. First, an H & C decision is very different from a judicial decision, since it involves the exercise of considerable
discretion and requires the consideration of multiple factors. Second, its role is also, within the statutory scheme, as an exception to
the general principles of Canadian immigration law. These factors militate in favour of more relaxed requirements under the duty of
fairness. On the other hand, there is no appeal procedure, although judicial review may be applied for with leave of the Federal
Court – Trial Division. In addition, considering the third factor, this is a decision that in practice has exceptional importance to the
lives of those with an interest in the result – the claimant and his or her close family members – and this leads to the content of the
duty of fairness being more extensive. Finally, applying the fifth factor described above, the statute accords considerable flexibility
to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all
cases. The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be
considered in the analysis. Thus, it can be seen that although some of the factors suggest stricter requirements under the duty of
fairness, others suggest relaxed requirements further from the judicial model.” – Baker

Specific Components of the Duty of Fairness


 Notice that the decision is going to be made
o In the enabling statute there may be a requirement.
o Timeliness and sufficiency of notice are important considerations.
o "[N]otice must be adequate in all circumstances in order to afford to those concerned a reasonable opportunity to
present proofs and arguments, and to respond to those presented in opposition." It is an ongoing duty; it arises prior to
the making of a decision and continues throughout the course in a decision-making process.
 Disclosure of the information on which the tribunal will base its decision (CAN: 32)
o Less disclosure than what is required by Stinchcombe (the criminal requirement which requires absolute fairness)
o More discretion to refuse granting disclosure as less procedural fairness attaches.
o Case-to-meet principle – The individual must know that case he or she has to meet (satisfied if a party has sufficient
information to make informed submissions in regard to a particular matter).
o Professional discipline and the possibility of loss of livelihood require a high level of disclosure (Khan).
o Disclosure duty can be tailored to the needs of particular circumstances.
 Oral Hearing – some opportunity to participate or make views known
o Not always required, may be granted if adequate opportunity to be heard. The administrative process would grind to a
halt if the duty of fairness required an oral hearing before any decision could be made. It depends on the
circumstances.
o It is required where a decision depends on findings of witness credibility [Singh, Khan, Suresh).
o Not required in H & C applications (since the ADM already had documents expressing her side of the issue) – Baker
 Right to counsel
o There is no right to counsel in the context of administrative proceedings unless it has triggered a s. 7 issue. -protection
of 10(b) right is limited to circumstances of "arrest and detention".
o It is covered by s. 32 of the Administrative Tribunals Act.
 Reasons – oral or written
o Two main concerns:
 no reasons provided in circumstance that the court says required reasons - Lafontaine. 2004 SCC

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 inadequacy of reasons – tantamount to no reasons at all and hence a violation of the duty - Clifford v. Ontario
Municipal Employee Retirement System (2009) Ont CA; Sussman v. College of Alberta Psychologists (2010)
o Is there a statutory right of appeal? Does the decision have a significant impact on the individual? Are there other
circumstances that necessitate the provision of reasons?
o “[I]n certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a
decision... [These are required] in cases such as ... where the decision has important significance for the individual,
when there is a statutory right of appeal, or in other circumstances” – [Baker].
o Low threshold. Nfld and Labrador Nurses' Union v. Nfld and Labrador (Treasury Board):
 "It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons
fall under the category of a breach a duty of fairness and that they are subject to a correctness review ... [If] ...
there are reason, there is no such breach. Any challenge to the reasoning/result of the decision should
therefore be made within the reasonableness analysis."
 Focus is now on the substantive question: do the reasons, such as they are, "allow the reviewing court to
understand why the tribunal made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes?"
o There isn’t necessarily a formality to how the written reasons are given. Look at reasons to analyze what factors the
ADM considered. Was he alive to the issues raised by the OP?
o s.43 ATA (Tribunal’s stated case has to be in writing)

Baker: High PF → Even though reasons were not formally provided to Ms. Baker, the court ruled that Officer’s Lorenzo’s notes, on
which Officer Caden based his decision, were sufficient reasons.
Lafontaine: High PF → Court held that reasons were required for the second and third decisions rejecting the Congregation’s
rezoning application.

o Call evidence
 s.38 ATA
 This is part of an oral hearing and the right is not absolute (Boyle; Gagliano). The guiding principle is that parties must
be afforded a reasonable opportunity to present their cases.
o Cross-examination:
 Grant MacEwan Community College: "A fundamental component of natural justice is that both parties must be
free to present their case and cross-examine the other side on their evidence.
 Kane: "[A] tribunal must listen carefully to both sides, and must give the parties to the controversy a fair
opportunity to correct or contradict any relevant statement prejudicial to their case."
 In Innisfil (Township) v. Vespra (Township), right of cross-examination is not to be withheld on the basis of a
judgment by the tribunal that it is of limited utility. Additionally, there needs to be clear statutory language to deny
someone of this right.
 Consider whether there is evidence showing that the ADM actively considered both sides of the evidence (e.g.
Gagliano). Was the right to test the credibility of the evidence adequately exercised?
o Right to timely hearing
 Severe delay can trigger Charter
 No s.11(d) guarantee; have to look at what the normal process is.
 S. 11(b) of the Charter only applies to persons charged with an offence. There is no Charter right to have an
administrative decision heard or determined in a reasonable amount of time unless it triggers s.7 (rare circumstance).
 Three considerations (Blencoe):
 the time taken compared to the inherent time requirements of the matter before the particular administrative
body.
 the causes of delay beyond the inherent time requirements of the matter.
 the impact of the delay.
 Delay in the administrative process can have serious consequences - Blencoe. Following Blencoe it is clear that delay in
providing a hearing - or presumably, in rendering a decision - may breach the duty of fairness and may even rise to the
level of a Charter breach. But the normal remedy for delay is likely to be an order in the nature of mandamus, requiring
the tribunal to perform its duty expeditiously. It is a high threshold.
 Conclude: Provide conclusion of outcome based on analysis. Remember: the courts are looking to make sure the process is fair in
all the circumstances. Doesn’t mean rigid perfection, but balance.

Notes:
 If it helps you, develop a checklist of procedural rights (notice, discovery/disclosure, x-exam…etc.) to run through in step 2.

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 Don’t lose track of the point of all of this: IS THE PROCESS FAIR IN ALL THE CIRCUMSTANCES?
 Remember (could you forget???) that content of the duty of fairness is flexible and variable. The goal is not procedural
perfection, but a balance between fairness and efficiency (see statements of L’Heureux-Dubé, for e.g., in Knight and Baker).

Constitutional Sources (CAN: 34-35)


 What specific procedures are required for that level of PF? Section 7 Analysis: Analyze whether the procedural steps taken in
the circumstances were adequate. Apply any additional criteria to evaluate the adequacy of procedural protections associated
with particular hearing rights: (important to examine the enabling legislation as well as look at umbrella legislation such as the
BC Administrative Tribunals Act. )
 In BC the Administrative Tribunals Act expressly distinguishes those tribunals with jurisdiction to decide constitutional questions
from those that do no.
 Constitutional sources of procedural rights
o Individual: Charter, s. 7; unwritten constitutional principles (i.e. judicial independence); Charter ss. 8-14.
o Collective: Constitution Act, 1982, s. 35(1)/Honour of Crown; Charter, s. 2(d); Language rights?

Bill of Rights
 Trigger/Thresholds:
o S 1(a) – includes enjoyment of property – not included in Charter.
o 2 (e) – rights and freedoms as protected by the Bill; broader than “life, liberty & security of person”BROADER than
Section 7 of Charter.

Section 7 of Charter
INTRODUCTION
 In addition to a duty of fairness that applies at CL, the duty may also be owed under the Charter. Section 7 is the only rights
conferring provision in the Charter that refers to the POFJ and within the Charter's substantive rights-conferring provisions, only
these principles have been found to include procedural fairness.
 To access s. 7 protection, one must first cross the threshold of "life, liberty, and security of the person. S. 7 only applies if a
decision or legislation engages these interests
 life = one's right to live and be free of state conduct that increases the risk of dying.
 liberty = freedom from physical restraint and freedom to make choices
 security = physical component = engaged when threat of physical harm and psychological component = engaged when state
imposes severe psychological harm.
 If cannot show s. 7 engaged - can still use the Canadian Bill of Rights.
 The Charter does not replace CL, but rather embodies and supplements fundamental legal principles contained within it.
 In procedural review, the courts rely on the CL doctrine of PF to interpret the POFJ set out in s. 7 of the Charter.
 In substantive review - court used to use the framework in Oakes to determine the validity of a decision the engaged a
Charter right, now administrative law approach adapted to consider Charter rights.
 Common-law is a gap-filler. S. 7 can also be a gap-filler but can overrule statute.
 Legislation can determine the availability of procedures.
 Statute can overpower common law by dictating less stringent (or even no) procedural safeguards.
 Specific procedural requirements of the POFJ are determined flexibly but on a standard of correctness.
 If s.7 interest is engaged, procedural fairness comes into play via POFJ and legislation must conform to them as a
constitutional requirement.
LAW:
Frame of Analysis:
1. Has an interest in one or more of life, liberty or security of person been engaged? Has there been a deprivation of life, liberty or
security of person as a result of state action?
2. Has this deprivation occurred in accordance with fundamental justice?
 Fundamental justice as a due process: Related to natural justice
 Fundamental justice as “substantive” due process: Some recognized principles: Arbitrariness, gross disproportionality,
overbreadth
Trigger is s. 7 jurisprudence (i.e. can we show an interest in life, liberty and security of person has been engaged by action of state in
manner that is NOT in accordance with fundamental justice – due process).

Security of Person “Threshold”:


Morgentaler: includes psychological stress and physical integrity.

9
Rodriguez: includes personal autonomy.
G(J): Impact of state action must be “serious and profound” – not minor disturbance of psychological integrity.(para 60).
Blencoe: Inordinate and undue delay could trigger s. 7:
 Difficult to reach; Even assuming gov’t (in)action has causal nexus to mental health problems, NOT triggered in
Blencoe; stigma caused by complaints NOT caught.

Content of S. 7 POFJ rights


Note: Section 7 Hearing Rights
When s. 7 is triggered, we are generally at the "quasi-judicial" end of the spectrum:
 Disclosure, right to reply, ex parte hearings/ XE (national security context cases - Charkaoui, Suresh)
 Reasons - Suresh (application of Nfld & Labrador Nurses in Charter context?)
 Right to counsel – G(J)
Discussion: interest at stake that led to a right of counsel in G.J.? - security interest - psychological component

Duty to Consult and PF (CAN: 46-52)


 Haida Nation: "In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful
consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of
natural justice mandated by administrative law."
 DTC has many parallels with the duty of PF - such as that both have thresholds and content analysis. The SCC made reference to
cross-application of principles. So it is possible for the DTC to be fulfilled by advertence to the duty of fairness.
o Haida Nation: "regard may be had to procedural safeguards of natural justice mandated by administrative law" in
discharging the duty.
o Taku River Tlingit: DTCA can be carried out within regular administrative processes.
o Little Salmon/Carmacks: Binnie J. "administrative law is flexible enough to give full weight to the constitutional
interests of the First Nation."
Duty to Consult Test
1. Is there a duty? (threshold or trigger)
o Rio Tinto Alcan: The Crown has real or constructive knowledge of the potential existence of an aboriginal right
o The Crown contemplates conduct
o With potential adverse affects on the (potential) aboriginal right
2. What is the content of the duty? And has that duty been met?
o A spectrum: “the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting
the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title
claimed.” (Haida, para 39)

2. What is the Content of the Duty? The Rule against Bias (CAN: 52-63)

 Three types of bias: personal bias, institutional bias, and tribunal independence.
 Identify potential breaches of the rule against bias and whether they raise issues with respect to personal bias, institutional bias,
independence or all three.
o ADMs shouldn’t be confined to a model of due process that draws exclusively on the judicial paradigm and discourages
innovation. Nonetheless, ADMs owe a high degree of impartiality and independence, and that can’t be sacrificed at the
altar of innovation.

 GENERAL TEST: Reasonable Apprehension of Bias:


“Apprehension of bias MUST be a reasonable one, held by reasonable and right minded persons, applying themselves to
question and obtaining thereon required information. ….the test is “what would an informed person, viewing the matter
realistically and practically – and having thought the matter through – conclude.” (Grandpre J, Committee for Justice and
Liberty, quoted CP v Matsqui at 81).

 Personal bias: individual decision-making – considers whether prior involvement, conduct, personal interests/associations on
the part of the individual decision makers give rise to a reasonable apprehension of bias.

It’s about perceptions: It is of fundamental importance that justice should NOT only be done, but should manifestly and undoubtedly
be seem to be done.”
RULE

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 “The apprehension of bias MUST be a reasonable one, held by reasonable and right minded people, applying themselves to
the question and obtaining thereon required information. In the words of the Court of Appeal, that test is “What would an
informed person view the matter realistically and practically – and having through the matter through –
conclude.”(Grandpre J, Committee for Justice and Liberty v Nat’l Energy Board).
CRITERIA:
 The standard of impartiality expected of a particular ADM depends on context and is to be measured by reference to the
factors identified in Baker.
 ADMs should not be confined to a model of due process that draws exclusively on the judicial paradigm and discourages
innovation. Nonetheless, ADMs owe a high degree of impartiality and independence, and that cannot be sacrificed at the
altar of innovation.
 In assessing bias, the legitimate interest of the agency in the overall quality of its decisions cannot be ignored.
PARAMETERS OF RULE:
1. Can we answer an apprehension of bias with evidence of NO actual bias? NO (Wewaykum).
2. To whom does rule apply? All those substantially involved in the decision (e.g., Baker).
3. Does apprehension of bias on the part of one decision maker taint the whole panel?
o Usually (Great Atlantic). BUT might depend on decision-making structure, and how much we know about it
(Wewaykum, paras 92-93, re SCC decision-making process). It’s all about what constitutes a “reasonable
apprehension”.
TYPES OF PERSONAL BIAS
1. Pecuniary/material interests:
o “Typical” bias concern: financial, personal benefit from outcome of adjudication is NOT permitted.
o Imperial Oil – Minister’s interest in collecting $ from polluter to deal with law suits brought by affected land
holders is NOT a personal pecuniary interest, does NOT give rise to RAB.
o If interest is too remote, indirect, it will NOT give rise to a RAB (Energy Probe, Matsqui)
2. Relationships:
o Personal connection to decision.
o Difficult in relation to advocacy, in small communities, or small pools of experts from whom tribunal adjudicators
may be drawn (i.e. labour context).
3. Prior knowledge, involvement:
o Wewaykum (2003, SCC) – Binnie J was ADM in Dept. of Justice while case was in play, then became SCC judge and
participated in the appeal. No RAB.
o Imperial Oil – Minister involved on investigation before pursuing order against Imperial Oil.
4. Attitudinal:
o Shown through questioning (i.e. inquisitorial processes).
o Shown through content of statements (before hearing, during hearing). E.g. Baker.
o Can be statistical bias – Turoczi
 These types emerge from the cases and help identify the problem. They are not “part of the test.” The test is always RAB, as
applicable to the administrative context.
 But see distinction btwn type #1 and type #4 in Old St Boniface, where context dictates that a different standard applies in
relation to type #4 than in relation to type#1.
 Always subject to express legislative sanction (esp relevant in relation to overlapping roles and prior
knowledge/involvement)
APPLICATION
 Identify the relevant standard of bias (RAB or closed mind) drawing from the Baker analysis above). Baker factors are going
to dictate a high or low level of procedural fairness.
o If low PF (more deference):
 the closed mind test is more appropriate.
 Closed Mind: the onus is on the party alleging disqualifying bias to establish that there is prejudgment. If
they can’t be persuaded (i.e. their mind is so closed that presentations of any other perspectives are
futile) then they have prejudged and personal bias is established [Newfoundland Telephone; aff’d Old St.
Bonafice]
o If high PF (less deference):
 the RAB test is more appropriate.
 Reasonable Apprehension of Bias: whether a well informed person, viewing the matter realistically and
practically and having thought the matter through would conclude that an administrative decision maker
is sufficiently free of factors that could interfere with his or her ability to make impartial judgments
[Matsqui]
 Analyze whether the facts satisfy the applicable standard.

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Baker: Officer Lorenz’ notes placed particular emphasis on that fact that Baker had numerous children. Note that during that time,
there was stereotyping of black people as being more promiscuous. →also frustration with the “system”. Since his notes formed part
of the reasons for the decision and there was RAB → taints the decision → “do not disclose the existence of an open mind or
weighing of the particular circumstances of the case free from stereotypes.” = RAB

 Institutional bias: extent to which boards and tribunals can consult with others to whom boards the person affected will not
have had the opportunity to present his or her case.
 Concept of institutional bias embodies ability of a decision-maker to decide free of inappropriate interference by other
decision-makers. Such inappropriate interference may include pressure to decide a certain way or substitution of another’s
decision for one’s own. (Think Roncarelli v. Duplessis). Examples of situations where this might arise: back room meetings
(Bathurst); “lead cases” (Geeza). See CAN p. 59-63.
 Test:
o Still reasonable apprehension of bias but adapted to institutional context: “a reasonable apprehension of bias in the
mind of a fully informed person in a substantial number of cases” (R v Lippé, [1991] SCC; Gezaat 19).
o One factor to look at is potential conflict between interests of tribunal members and parties who appear before them
(i.e. Lippe: concern for judges who also part-time lawyers for Highway Safety Act charges.
o If NO institutional bias, an apprehension of bias may still be found in a particular case.
 Identify the relevant standard of bias that should apply (drawing from Baker analysis above). Baker factors are going to dictate
a high or low level of procedural fairness.
o If high: the modified RAB test is more appropriate
 RAB: having regard for a number of factors including, but not limited to, the potential for conflict between
the interests of tribunal members and those of the parties who appear before them, will there be a
reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?
[Lippe/Geeza]
 Apply the relevant standard of bias (RA adapted to institutional context; Baker analysis regarding context still relevant).
 Analyze whether the facts satisfy the applicable standard.

 Independence: refers to the constitutional idea of judicial independence. How does it operate in the administrative tribunal
context?
RULE:
 Whether a reasonable, well-informed person having thought the matter through would conclude that an administrative
decision-maker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments (i.e.
“reasonable apprehension of bias test”).
CRITERIA:
 Indices of Judicial Independence in Valente (as per Constitutional Principe):
1. Security of tenure: “Essence of security of tenure for purposes of s. 11(d) is tenure, whether until an age of retirement, for
fixed term, or for a specific adjudicative task, that is secure against interference by executive or other appointing authority
in a discretionary or arbitrary manner.”
o A lower level of procedural protection is owed to “at pleasure” employees. Note that this is at tension with Baker
factors and the general idea (see: Keen) that ADMs should be free from easy removal by another party (in Keen,
government).
2. Financial security: “Right to salary and pension should be established by law and NOT be subject to arbitrary interference
by executive in a manner that could affect judicial independence.”
3. Institutional (administrative) independence: “institutional independence of tribunal with respect to matters of
administration bearing directly on exercise of its judicial function.”
 Recall: An “unwritten” constitutional principle (but grounded in ss. 96-101 of 1867 Act), that has been applied to inferior
courts (i.e., provincial courts); Provincial Judges Ref. But NO general constitutional guarantee of tribunal independence.
 Keep in mind: What is the legislative intent?
APPLICATION:
 Consider what legislative intent is and what the context (according to the Baker analysis above) demands relative to the 3
Valente factors of judicial independence:
 Contextual → The Valente test for institutional independence as applied to administrative tribunals “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 such as oaths of office.”
– CP v. Matsqui
 Does the constitutional principle apply in administrative context? Does NOT apply.
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oOcean Port Hotel: “Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally
required to possess objective guarantees of both individual and institutional independence…. Historically,
requirement of judicial independence developed to demarcate fundamental division between judiciary and
executive…. Administrative tribunals, by contrast, lack constitutional distinction from executive. They are, in fact,
created precisely for purpose of implementing government policy… degree of independence required of particular
tribunal is matter of discerning intention of Parliament or legislature and, absent constitutional constraints, this
choice MUST be respected” [23-24].
 What is the legislative intent with respect to institutional independence?
 Principle serves two objectives; only 2nd one is constitutional (outside of Charter ss. 7, 11(d)) (Ocean Port):
o Rule against bias  perceptions of justice being done
o Upholding the rule of law and separation of powers  a constitutional principle, not relevant to admin tribunals
(at least not this one….)
 Analyze the facts to see if the facts satisfy the required level of independence.
 Consider whether there is a statutory authorization for any problems with independence that are identified:
o What does the enabling statute require?
o Any reference to the ATA?
CONCLUSION: Remember: justice must not only be done but must be seen to be done.

Notes:
 Don’t lose track of the point of all of this: JUSTICE MUST NOT ONLY BE DONE BUT MUST BE SEEN TO BE DONE.
 Consider whether there is statutory authorization for the bias or problems of independence (i.e., whether the common law
procedural prescriptions have been altered or replaced).

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III. SUBSTANTIVE REVIEW
Preliminary Analysis of Fact Patten
 What is the decision to be judicially reviewed?
 What are the issues?
 What is the SOR? Reasonableness or Correctness?
 How do we apply the SOR?
 What is the remedy?
 Should the remedy be granted?

Analysis of Decision
 Contentious Law/Order/Remedy: Identify decision subject to judicial review.
 Decision:
 ADM
o Who is the ADM?
o What is the enabling statute?
o What are the functions of the ADM? (adjudicative, legislative, policy implementation)
 On what grounds is that decision being challenged?
o Interpretation of the law?
o Jurisdiction?
o Application of the law to facts?
 Is it a federal or BC AT? Note that if BC AT, then the BC Administrative Tribunals Act may apply to it.

Issues
 Identify clearly what the issues are.
 Each issue may attract a different standard of review.
 Segmentation – Where a JR application raises several discrete issues, reviewing courts have sometimes calibrated the SOR
separately for each issue. Segmentation arises whenever one link in a decision chain attracts a different SOR than the other links
in the chain. E.g. Charter issues.

Determining SOR
 What is the standard of analysis to be used? Correctness or reasonableness?
“[D]etermining the applicable standard of review is accomplished by establishing legislative intent” – Dunsmuir.

Discretion: an express legal power to choose a course of action from a range of permissible options, including the option of
inaction. The discretion may authorize administrative action, a decision that is aimed at an individual or small group, or the
making of a rule that will affect a large number.
IHOP: Identifying discretionary decisions using clues from the statute:

 Statute: Is the applicable SOR set out in a statute? Eg. BC ATA or enabling statute? If so, apply as set out in statute.
 Patent unreasonableness
o Defined by the common law as it existed pre-Dunsmuir (Jensen, Coast Mountain Bus Company)
o Not frozen and continue to develop with principles of administrative law (Jensen)
o Clear legislative intent that patent unreasonableness must be kept, though it is removed from the common law
o SCC jurisprudence has not altered the patent unreasonableness standard under ATA (United Steelworkers)
 General principles of patent unreasonableness (Speckling)
o Means openly, clearly or evidently unreasonable
o Review test must be applied to the result not to the reasons leading to the result (Victoria Times)
 Court is not to ask itself whether it is persuaded by the rationale for the tribunal’s decision
 Merely ask
1) whether, assessing decision as a whole, there is rational line of analysis supporting the decision such
that the decision is not clearly irrational
2) whether no amount of curial deference can justify letting it stand
 not about whether the court agrees
 not patently unreasonable if the flaws in reasoning does not affect the reasonableness of the decision
o Decision may be set aside only on jurisdiction error
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o Decision based on no evidence is patently unreasonable, but insufficient evidence is not
 Analysis under Administrative Tribunals Act
1. Is the tribunal covered by the BC ATA?
2. Is there a “privative clause” in the enabling statute?
3. If yes, apply Section 58
o Tribunal considered to be “expert tribunal”
o Key: what is meant by “exclusive jurisdiction”?
 not defined in the statute, must interpret enabling statute to see what the tribunal has exclusive
jurisdiction in
 Kerton 2011
 Simply consider if the privative clause covers the matters in issue
o If the privative clause appears to authorize the decision maker to make the decision it
did, that’s all that matters (do not bother with PPEQ, pragmatic and functional analysis)
o If the enabling statute defines the exclusive jurisdiction, then apply that
 The pragmatic and functional approach may still be applicable, but must pay attention to the governing
legislative provisions (an argument that can be made, but likely fail)
 Does “exclusive jurisdiction” = jurisdiction? (this will take 2 classes to go through)
o patently unreasonable: finding of fact, law or discretion within exclusive jurisdiction **(remember Speckling above) –
exercise of discretion is patently unreasonable when 58(3)
o correctness: any other matter outside its exclusive jurisdiction
4. If no, apply Section 59
 Standard is correctness, except:
 Discretion – patently unreasonable (examples in 59(4)) **(remember Speckling above)
 Finding of fact – must not set aside unless there is no evidence support or is patently unreasonable

Federal Court Act

Powers of Federal Court


(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has
unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as
it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other
tribunal.
Grounds of review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for
the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.

BC Administrative Tribunals Act

Standard of review if tribunal's enabling Act has privative clause


58 (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert
tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction
under a privative clause must not be interfered with unless it is patently unreasonable,
(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to
whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision
is correctness.
(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
15
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
Standard of review if tribunal's enabling Act has no privative clause
59 (1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all
questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural
justice and procedural fairness.
(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the
evidence, the finding is otherwise unreasonable.
(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.
(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
(5) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to
whether, in all of the circumstances, the tribunal acted fairly.

"privative clause" means provisions in the tribunal's enabling Act that give the tribunal exclusive and final jurisdiction to inquire into,
hear and decide certain matters and questions and provide that a decision of the tribunal in respect of the matters within its
jurisdiction is final and binding and not open to review in any court; – BC ATA

 Common law: If SOR is not set out in statute, apply Dunsmuir analysis to determine the SOR.
Court will apply Dunsmuir when the statute is silent – Khosa
“Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the
rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of
the matters delegated to administrative bodies by Parliament and legislatures” – Dunsmuir

 Stage 1: Precedent: is there past jurisprudence that has already adequately determined the degree of deference to be accorded
to a particular category of question? If so, proceed to the next step of the inquiry. (Dunsmuir)
“An exhaustive review is not required in every case to determine the proper standard of review” – Dunsmuir

Predetermined Standards of Review:


Deference and therefore, reasonableness review must apply to:
o Legal and factual issues that are intertwined and cannot be easily separated.
Deference and therefore, reasonableness review usually or may apply to:
o Questions of fact, discretion, or policy;
o “Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its
function, with which it will have particular familiarity” – Dunsmuir
o Where an AT had developed particular expertise in the application of a general CL rule in relation to a specific statutory
context;
o Where there is a privative clause, as it is a statutory legislative direction indicating the need for deference
Correctness review must apply to:
o Constitutional questions
o The determination of “true questions of jurisdiction,” – which arises where a tribunal must “explicitly determine
whether its statutory grant of power gives it authority to decide a particular matter.
 The category of true questions of jurisdiction is narrow and exceptional. When considering a question of an AT
interpreting or applying its home statute, it should be presumed that the appropriate standard of review is
reasonableness – ATA, 2011
 As long as the true questions of jurisdiction category remains, the party seeking to invoke it must be required
to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the
deferential standard of reasonableness – ATA, 2011.
o Questions of law that are both of central importance to the legal system as a whole and outside the expertise of the
AT.
 “[G]eneral questions of law that are both of central importance to the legal system as a whole and outside the
adjudicator’s specialized area of expertise, must still be reviewed on a standard of correctness, in order to

16
safeguard a basic consistency in the fundamental legal order of our country.” – Lebel and Cromwell, Canada
(Canadian Human Rights Commission) .
 “[S]ince Dunsmuir, for the correctness standard to apply, the question has to not only be one of central
importance to the legal system but also outside the adjudicator’s specialized area of expertise.” – ATA 2011
o Questions regarding jurisdictional lines between two or more competing specialized ATs.
 Domtar – Court rejected the assertion that the precedential value of resolving inconsistency within or
between tribunals constitutes an independent basis for adopting a correctness standard of review, unless the
divergent decisions create an operational conflict, whereby compliance with one order would necessitate
violation of the other. A significant concern for the Court in Domtar was the risk that real or apparent
inconsistencies within or between tribunal decisions might become a pretext for undermining fidelity to the
principles underlying curial deference. The Court also adverted to internal mechanisms available to tribunals
to encourage consistency, and downplayed the virtues of consistency in relation to other important values
served by deference.

 A. Reasonableness usually applies to/where:


1. Interpretation of enabling or home statute.
o The default is reasonableness unless any of the four categories of questions to which correctness SOR usually applies,
applies in this case (Dunsmuir, ATA).
o “Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its
function, with which it will have particular familiarity” – Dunsmuir
2. Question of fact
3. Question of mixed fact and law

 Correctness usually applies to/where:

1. “true” questions of jurisdiction or vires


Yes: Northrop,
No: ATA, Dunsmuir,

o Courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be
doubtfully so” – Canadian Union of Public Employees, Local 963 v. NB Liquor Corp., [1979].
o “Dunsmuir expressly distanced itself from the extended definition of jurisdiction” – Canada (Canadian Human Rights
Commission).
o Narrow scope: “True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an
administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard
of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it
must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the
deferential standard of reasonableness.” – Obiter dicta by Rothstein in ATA 2011.
o Applied in Northrop Grumman Overseas Services Corp. v. Canada (AG) 2009. ATA reasoned that this ruling “was based
on an established pre-Dunsmuir jurisprudence applying a correctness standard to this type of decision, not on the
Court finding a true question of jurisdiction” – ATA.
-
2. Questions of law of “central importance” outside of expertise of the admin decision maker
o Did not qualify in ATA b/c the question was “specific to the administrative regime for the protection of personal
information” and it dealt with issues that were “squarely within the Commissioner’s specialized expertise.” – ATA 2011.
o “[G]eneral questions of law that are both of central importance to the legal system as a whole and outside the
adjudicator’s specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a
basic consistency in the fundamental legal order of our country.” – Lebel and Cromwell, Canada (Canadian Human
Rights Commission) .
o “[S]ince Dunsmuir, for the correctness standard to apply, the question has to not only be one of central importance to
the legal system but also outside the adjudicator’s specialized area of expertise.” – ATA 2011

3. Constitutional questions (e.g. separation of powers)


4. Questions regarding jurisdictional lines between tribunals (Domtar)

17
• Stage 2: If no precedent, then carry out a contextual standard of review analysis by analyzing the Pushpanathan factors to
determine SOR. Note that the presumption or default SOR is reasonableness; it can only be rebutted by the overall evaluation of
the 4 exception (Dunsmuir).
1) Nature of the question
 Type of question:
 Question of law – correctness (sometimes reasonableness).
 Question of fact – reasonableness
 Question of mixed law and fact – reasonableness
 Legislative intent re: questions of law
 Generalized proposition of law = correctness
 Discretionary power
2) Purpose of the statue in general and the provision in particular
 Purpose and expertise often overlap;
 Legislative scheme in its entirety;
 Principle of poly-centricity inform its purpose; (polycentric = engages a balancing of multiple interests, constituencies,
and factors and contains a significant policy element, and articulates legal standards in vague language)
 Assess whether rights/entitlements are protected/affected.
3) The presence or absence of a privative clause:
 Shift in CUPE to a very deferential standard when there is a PC – rationale: tribunal expertise.
 “A privative clause is a strong indicator of legislative intent” – Khosa
 Does the PC preclude only factual findings from review or all?
 Full privative clause – is compelling reason for deference but does not prevent JR.
 Finality clause – states that the decision is final but does not preclude a review.
 Partial or equivocal – look to legislative intent.
 Is there a right of appeal? Right of statutory appeal – permits more searching review.
4) The relative expertise of the tribunal compared to the reviewing body.
 Process: (Pushpanathan)
1. Characterize the expertise of the AR;
2. Consider its own expertise relative to that of the reviewing body;
3. Identify the nature of the issue relative to this expertise.
 “Deference may also be warranted where an administrative tribunal has developed particular expertise in the
application of a general common law or civil law rule in relation to specific statutory context” (Dunsmuir).
 Expertise is a relative concept;
 Interpret with respect to the aims of the Act;
 Indicated in enabling legislation and interpretation;
 Specialized knowledge of decision-makers;
 Special procedures for dispute resolution;
 Judicial skills and procedures – comparative assessment

 Conclude: Remember that in Dunsmuir – reinforced by the majority in Khosa – the analysis is aimed at discerning which
institution possesses the relative expertise on the issue at hand in accordance with legislative intent.

WRITEUPS
Example from Catalyst Paper 2012 SCC.
“[S]ubstantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the
power it delegates to be exercised unreasonably, or in some cases, incorrectly.” [para. 12]
“A court conducting substantive review of the exercise of delegated powers must first determine the appropriate standard of
review. This depends on a number of factors, including the presence of a privative clause in the enabling statute, the nature of the
body to which the power is delegated, and whether the questions falls within the body’s area of expertise. Two standards are
available: reasonableness and correctness. See, generally, Dunsmuir v. New Brunswick, 2008 SCC ... at para. 55. If the applicable
standard of review is correctness, the reviewing court requires, as the label suggests, that the administrative body be correct. If the
applicable standard of review is reasonableness, the reviewing court requires that the decision be reasonable, having regard to the
processes followed and whether the outcome falls within a reasonable range of alternatives in light of the legislative scheme and
contextual factors relevant to the exercise of the power: Dunsmuir at para. 47” [para. 13]
– McLachlin C.J., Catalyst Paper.

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APPLYING THE STANDARDS OF REVIEW
 Reasonableness:
o “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring
both to the process of articulating reasons and the outcomes."In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law." – Dunsmuir
o Nfld and Labrador Nurses' Union v. Nfld and Labrador (Treasury Board): Abella J stated that Dunsmuir does not
advocate "that a reviewing court undertake two discrete analyses - one for reasons and a separate one for the result."
The assessment for reasonableness "is a more organic exercise - the reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of possible outcomes."
o Process: In terms of process, reasonableness is concerned mostly with the exercise of “justification, transparency and
intelligibility” – Dunsmuir.
 No duty to provide reason – Mavi and Dore.
 Look at no reasons, gaps in reasoning, implied decisions etc.
o Outcome: In terms of outcome, reasonableness is concerned with whether the decision falls within a range of possible,
acceptable outcomes that are defensible, in respect of the facts and the law.
 Correctness: A reviewing court will not show deference to the AT’s reasoning process. Rather, it will undertake a de novo
analysis, which will bring the court to decide whether it agrees with the AT’s decision. If so, the AT’s decision was correct. If not,
the court will substitute its own view and provide the right answer. – Dunsmuir

SUBSTANTIVE REVIEW – CHARTER/CONSITUTITON (CAN: 84-91)

Doré – challenging decision of ADM (reasonableness standard).


Martin – challenging interpretations of legislation in light of the Charter.

Preliminary Analysis of Fact Pattern:


 Catalyst Paper: the nature of the reasonableness review is always contingent on its context.
 Consider: Is the infringement of the right express (legislation) or implicit (discretionary decision)?

Legislation (Martin):
Q. Does the ADM have jurisdiction to consider constitutional questions? (Martin)
1. Does administrative tribunal have explicit or implied jurisdiction to decide questions of law arising under the challenged
provision?
 If explicit jurisdiction → found in terms of the statutory grant of authority → enabling statute (skip to #3).
 If implied jurisdiction → discerned by looking at the statute as a whole (go to #2).
2. If NOT explicit, implied jurisdiction is determined by considering the following factors:
 Statutory mandate of the tribunal in issue
 Whether determination of questions of law is necessary to fulfilling the statutory mandate effectively.
 Interaction of the tribunal in question with other elements of the administrative system;
 Whether the tribunal is adjudicative in nature;
 Practical considerations regarding the tribunal’s capacity to consider (complex) questions of law.
o BN: Practical considerations “cannot override a clear implication from the statute itself.”
3. Where there is authority to decide questions of law under a legislative provision, there is a presumption of authority to
determine the constitutionality of that provision under the Charter.
4. Presumption is rebuttable (by party alleging tribunal lacks jurisdiction) by showing:
 Explicit withdrawal of authority over the Charter in statute.
 Implied legislative intention to exclude authority over Charter (or a category of questions that would imply exclusion of
Charter, or constitutional questions generally), based on the statute itself.
o “[C]onvincing the court that an examination of the statutory scheme clearly leads to the conclusion that the
legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as
constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an
implication should generally arise from the statute itself, rather than from external considerations.”
Q. Can the ADM grant a Charter remedy? (Conway)
When remedy sought from tribunal under s. 24(1), proper initial inquiry is whether tribunal can grant Charter remedies generally:
Two questions:
(1) Does tribunal have jurisdiction, explicit or implied, to decide questions of law? (i.e. threshold question);
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(2) Can tribunal grant particular remedy sought, given relevant statutory scheme?

ADM Decision (Dore): Q. Has the ADM disproportionately, and therefore unreasonably, limited a Charter right? – Doré.
 How does an ADM apply Charter values in the exercise of statutory discretion? “He or she balances the Charter values with the
statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives… Then the
decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the
core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter
protection with the statutory objectives.”
o 1) What are the statutory objectives?
o 2) How are the Charter values best protected in view of the statutory objectives?
 Requires ADM to balance severity of interference of Charter protection w/ statutory objectives.
On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the
nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter
protections at play.
o JR: Has the ADM proportionality balanced the Charter values in light of the statutory objectives such that the
decision is one of a range of possible reasonable outcomes?
 This may involve re-weighing some factors.
 The SOR is reasonableness.
 In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision-
maker interferes with the relevant Charter guarantees no more than is necessary given the statutory objectives. (Doré).
 If in exercising his statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory
objectives, the decision will be found to be reasonable.

IV. REMEDIES
What are the consequences of any breaches of procedural fairness or successful grounds for substantive review?
 What remedy is appropriate?
o Through common law prerogative writs (available through FC JR)
 Certiarori: to quash or set aside a decision
 Prohibition: to order a tribunal to not proceed
 Mandamus: to order the performance of a public duty
 Habeus Corpus: to determine the legality of a person’s detention
 Quo warranto: by what authority?
o Equitable remedies:
 Declaration
 Injunction
o Statutotory remedies:
 Judicial Review Procedure Act (BC) s.2(2) and s.18
 Court may grant any relief that the applicant would be entitled to (includes the common law
remedies above).
 Federal Courts Act ss. 18.1
 Look at enabling legislation.
 Should the court exercise its discretion to not grant a remedy?
o Will do so if there are timing and forum issues (premature, moot, or not all alternate routes have been explored
[Harelkin]). Factors for adequate alternative remedy (Harelkin):
 (1) composition of appeal body;
 (2) powers (i.e. what kind of order can it make? Can it hear evidence? De novo hearing or just appeal?
Earlier decisions?)
 (3) procedures by which powers exercised;
 (4) cost, expediencies (balance of convenience, respect for legislative intent).
o Issues with the conduct of the parties (delay/misconduct/bad faith/parties waived their rights)
o Issues with deference to ADM [see: Domtar multiplicity of decisions]
o The power to impose a particular remedy must be provided for in the tribunal’s enabling statute.
o Most tribunals’ composition, structure, and mandates are different from the courts’, and their approach to
remedies reflects those differences.
o Tribunals’ expertise may help them to identify systemic problems or recurring patterns across multiple individual
disputes.
o Judicial Review Procedure Act (BC) s. 8 (1) and (2) – discretion to refuse relief.
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