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Administrative Law Summary Chapter One Introduction to Administrative Law Features of Administrative Boards and Tribunals: they are established by legislation in order to attain a public policy goal or goals they are frequently somewhat independent of the government that has established them their members are appointed in order to bring a particular expertise to decision-making and may develop expertise over time in making decisions Procedural Fairness: The first question a court should ask itself on judicial review for procedural fairness is the threshold question whether this is the kind of decision that should attract some kind of procedural right. The Supreme Court in Baker identified five factors as relevant in determining the general level of procedural fairness: (1) the nature of the decision and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the parties; and (5) the procedure chosen by the tribunal. Having determined the general level of procedural fairness owed, the court will then decide from a range of possibilities what specific procedures are required. These include: notice that the decision is going to be made; disclosure of the information on which the tribunal will base its decision; some opportunity to participate or make views known; full hearing similar to that which occurs in a court; opportunity to give evidence and cross-examine; right to counsel; and oral or written reasons for its decision. Although historically administrative law has focused primarily on procedural review, substantive review, where the courts will look at the decision itself and ask what the standard of review is, has gained in importance. The three standards are: Correctness: the most exacting standard of review Reasonableness: the decision can be one that falls within a band of reasonable decisions even if it was not the exact decision that a court would itself have reached Patent Unreasonableness: the most forgiving standard of review The modern approach to the standard of review is to treat the existence of a privative or preclusive clause, and of a statutory right of appeal, as just one of many factors (albeit a significant one) in determining the appropriate standard. The courts' remedial powers were historically the prerogative writs: Certiorari: to quash or set aside a decision Prohibition: to order a tribunal not to proceed Mandamus: to order the performance of a public duty Habeas corpus: to order the release of the unlawfully imprisoned The courts have developed a three-part test to determine whether or not an administrative tribunal is in fact acting like a s. 96 court (seen in Re Residential Tenancies Act, 1979): (1) Historical inquiry whether the impugned power broadly confers to a power exclusively exercised by a superior, district, or county court at the time of Confederation

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(2) Is the impugned power a judicial power, as opposed to an administrative or legislative power? (A judicial power is one where there is a private dispute between parties, adjudicated through the application of a recognized body of rules, and adjudicated in a manner consistent with fairness and impartiality.) (3) Has the power in its institutional setting changed its character sufficiently to negate broad conformity with superior, district, or county jurisdiction?

Provincially constituted statutory tribunals cannot constitutionally be immunized from review of decisions on matters of jurisdiction by the Superior Courts: Crevier. The trend in the case law is that, implicit in ss. 96-100, there is a constitutionally guaranteed right to seek judicial review of administrative action on the grounds of jurisdictional error or illegality. when you take an administrative law matter to court, you are asking to hold the government accountable for what it has done three things to figure out: where do I go, what do I complain about, what do I ask for forum, ground, remedy forum will typically be resolved by statute grounds are usually procedural fairness (such as reasonable apprehension of bias) and substantive unfairness (something about the outcome of the decision that suggests the decision-making body acted inconsistently with the law that created it errors of law refer to interpreting their own statute incorrectly; another possibility is that the body interpreted their law in an unreasonable way, or making a decision in a capricious way, failing to take facts or evidence into account) even if the statute does not explicitly purport to guarantee procedural fairness, the court can draw on principles developed through the common law, such as the duty of fairness owed by decision-makers to people affected by their decision, so it can import these interpretive devices and principles remedy: in administrative law, under judicial review, you do not get a new outcome on judicial review, the best you can get in that sense is a new hearing at the forum of first instance it may be that the new outcome is in a sense predetermined by what the court has decided there are various other subcategories of remedies sometimes the statute will create a right to an appeal to the courts unlike in criminal right, where there is an appeal as of right, the statute must create this statutory appeal possibility and set out the criteria by which an appeal can be brought

Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC): The issues raised in Baker on appeal were: (1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review? (2) Were the principles of procedural fairness violated in this case? 1. Were the participatory rights accorded consistent with the duty of procedural fairness? 2. Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness? 3. Was there a reasonable apprehension of bias in the making of this decision? (3) Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker's children? (1) 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 judgment itself, not the certified question. Once a question has been certified, all aspects of the appeal may be considered by the appellate court, within its jurisdiction.

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Procedural Fairness: A duty of procedural fairness attaches to H&C decisions. The fact that a decision is administrative and affects the rights, privileges, or interests of an individual is sufficient to trigger the application of the duty of fairness. Underlying all of the factors identified in Baker is the notion that the purpose of participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. The five factors identified (not exhaustive): The nature of the decision being made and the process followed in making it 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 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 The importance of the decision to the individuals affected the more important the decision is to the lives of those affected and the greater its impact on those persons, the more stringent the procedural protections that will be mandated The legitimate expectations of the person challenging the decision if the claimant has a legitimate expectation that a certain procedure will be followed, or that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise be accorded; nevertheless, the doctrine cannot lead to substantive rights outside the procedural domain The choices of procedure made by the agency itself particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances Legitimate Expectations: In this case, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H&C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. Therefore, she had no legitimate expectation affecting the content of the duty of fairness. Participatory Rights: The circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. The flexible nature of the duty of fairness, however, recognizes that meaningful participation can occur in different ways in different situations. In these circumstances, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled, particularly given the fact that several of the factors relevant to determining the content of the duty of fairness point toward a more relaxed standard. The opportunity for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.

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The Provision of Reasons: Any reasons requirement under the duty of fairness must leave sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient. In Ms. Baker's case, the provision of written reasons are necessary, but the requirement was fulfilled by the provision of the notes of Officer Lorenz. These are both sufficient to satisfy the requirement under the duty of fairness, and to represent the reasons for decision themselves. Reasonable Apprehension of Bias: Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker. The test for reasonable apprehension of bias is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude? The notes of Officer Lorenz demonstrate a reasonable apprehension of bias, as the well-informed member of the community would perceive bias when reading his written reasons. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Review of the Exercise of the Minister's Discretion: The language of the legislation signals an intention to leave considerable choice to the Minister on the question of whether to grant an H&C application. It is inaccurate to speak of a rigid dichotomy of discretionary or non-discretionary decisions. Most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision-making. The pragmatic and functional approach recognizes three standards of review on a continuum of deference owed: patent unreasonableness, reasonableness simpliciter, and correctness. The pragmatic and functional approach takes into account considerations such as the expertise of the tribunal, the nature of the decision being made, he language of the provision and the surrounding legislation, whether a decision is polycentric, the intention revealed by the statutory language, and the amount of choice left by Parliament to the administrative decision-maker. In this case, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as patent unreasonableness. Thus, the appropriate standard of review is reasonableness simpliciter. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Officer Lorenz was completely dismissive of the interests of Ms. Baker's children, and the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section. These reasons show that Officer Lorenz' decision was inconsistent with the values underlying the grant of discretion, and therefore they cannot stand up to the somewhat probing examination required by the standard of reasonableness. The exercise of the H&C discretion was also unreasonable because the discretion granted by the ministerial guidelines is confined within certain boundaries, and attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to

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them by a negative decision is essential for an H&C decision to be made in a reasonable manner.

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Chapter Two Tools of the Administrative State Legal intervention can involve a variety of kinds of regulation, or tools, including criminalization, taxation, restrictions upon advertising, self-regulation, and constraints upon how, where, and when an activity may take place. These can all be used to achieve policy goals. The overarching question that needs to be asked regarding legal intervention in any area is What is the best mix of various forms of regulation that is likely to result in attaining the policy objective? Agencies generally possess four common characteristics: They enjoy a measure of independence from the government department with overall responsibility for the policy area in which they operate They render decisions regarding the area that they regulate that can directly affect persons They follow a more or less uniform decision-making process for resolving issues that directly affect persons They are specialized with regard to the area that they regulate Criteria for assessing the tools of legal intervention in administrative law: Effectiveness assesses the extent to which a tool achieves its intended objective Efficiency takes account of both results and the costs entailed in their realization Equity focuses on basic fairness (the distribution of benefits and costs roughly evenly among those eligible) or on the redistribution of benefits to those who have previously not had them or had them disproportionately less Manageability focuses on issues of implementation Legitimacy and Political Feasibility focuses on the ability to gain political support, accountability, and participation 407 ETR Concession Company v. Ontario (Registrar of Motor Vehicles) (2005, OSCJ): There are four jurisdictional requirements for mandamus: (1) the applicant must demonstrate a clear legal right to have thing sought by it done, and done in the manner and by the person sought to be coerced; (2) the duty must be due and incumbent on the official at the time the relief is sought; (3) the duty must be purely ministerial in nature (plainly incumbent upon an officer by operation of law or by virtue of his office, with no discretionary powers); and (4) there must be a demand and a refusal to perform the act which the applicant seeks to have ordered. The jurisdictional requirements for mandamus are met by 407 ETR, as the applicant company demonstrates a clear legal right, the legislation prescribes a limited and strictly administrative role for the Registrar, uses mandatory language that does not afford the Registrar any discretion, and obliges the Registrar to act notwithstanding the existence of further procedures with respect to enforcement in the regulation (subordinate legislation). The Registrar has also refused to perform the act requested on a continuing basis. The court still has a residual discretion to refuse mandamus: JRPA, s. 2(1). In exercising that discretion, the court can decide whether, and what sort of, a remedy should be granted. But the court does not, any more than the government, have the power to suspend the operation of a public statute that is fully enforced by operation of law. The court may consider, in determining whether to exercise its residual discretion and refuse mandamus: (a) the existence of alternative remedies; (b) the public interest in good government; (c) the balance of convenience; and, (d) the potential consequences of the order.

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Chapter Three Remedies Because a tribunal does not have the general jurisdiction that a court does, the power to impose a particular remedy must be provided for in the tribunal's enabling statute. Many enabling statutes set out express lists of the remedies a tribunal may order. Other statutes accord their tribunals broad, discretionary power to fashion the remedies they see fit. Administrative agencies even when acting as tribunals rather than policy-making bodies may have a broader mandate, and the ability to leverage a broader range of tools, than a traditional prosecution of rights-based claims provides. Many administrative bodies are explicitly charged with managing complex and often polycentric problems in a comprehensive manner. This has a few implications: (1) Administrative tribunals have stronger theoretical justifications for remaining seized of a case over a longer period of time. (2) They may try to develop remedies that address underlying structural or systemic problems, in a forward-looking rather than retrospective, rights-oriented way. (3) Their members are a more diverse group, especially in terms of their training and expertise, than judges are. Some tribunals' enabling statutes stipulate that a certain portion of their tribunal members should be laypersons, and sometimes the composition of tribunal membership even reflects an explicit attempt to represent different interest groups. (4) Private management approaches have often been implemented. Enforcement Powers of Tribunal Orders against Parties: Rarely, a tribunal may enforce its own orders. Any enforcement powers held by a tribunal must be granted to the tribunal in its enabling statute, and that delegation of enforcement power must pass constitutional scrutiny. More commonly, the tribunal must make an application in court to enforce any order it makes. Once a tribunal has converted its order into a court order, the order can be enforced in the same manner as a court judgment. A party to an administrative action may also bring an action in court against another party to enforce the tribunal's order. Many statutes also provide for quasi-criminal prosecution of persons who disobey tribunal orders. Challenging Administrative Action: A party to an administrative action may also decide to challenge that administrative action directly. Judicial review is only one method of challenging administrative action, and the remedial mechanisms available are not always satisfactory to the challenger. Internal Tribunal Mechanisms: All tribunals can fix certain things, such as clerical or factual errors due to mistake or dishonesty, without express statutory authority. Tribunals can also change their minds until the time a final decision is made. Therefore, what constitutes a final decision becomes important. Some enabling statutes specifically provide tribunals with the ability to reconsider and rehear decisions they have made. This is most common where a particular tribunal has ongoing regulatory responsibility over a particular domain. Absent express statutory authority, however, for policy reasons that favour finality of proceedings, a tribunal cannot reconsider or alter a final decision made within its jurisdiction. In some cases (such as the IRPA regime), there are also multi-tiered internal appellate structures, which in turn do not themselves preclude subsequent appeals to the courts. External Non-Court Mechanisms: Ombudspersons, auditors, privacy commissioners, and public inquiries are other possible mechanisms for challenging government conduct though these can be more difficult for individuals to instigate.

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Using the Courts Statutory Appeals: There are two main ways by which a party to a tribunal action can access the courts to challenge that action: appeal and judicial review. Appeal mechanisms either to internal administrative appellate bodies or to courts are the norm. Judicial review is the exception. Significantly, it is also discretionary. The scope of a possible appeal is confined to what the statute expressly provides. This means that, even though courts struggle sometimes with knotty issues in taking appeals from administrative tribunals, relative to judicial review it is easier to predict the availability and likely outcome of an appeal. 1. Is an appeal available? 1a. Does the tribunals' enabling statute provide for a right of appeal? 1b. What is the scope of available appeal? 1c. Is an appeal available as of right, or is leave required? If leave is required, who may grant it? 1d. Is a stay of proceedings automatic, or must one apply for it? Using the Courts Judicial Review: At its root, judicial review is about the inherent jurisdiction of courts to oversee and check administrative (that is, executive) action in the interest of the rule of law. Unlike appeals, which are statutorily created, judicial review is the review of executive action beyond what the executive itself provided for. Thus, only on judicial review will courts investigate a tribunal's procedural fairness or the alleged bias of its members. Is Judicial Review Available: One of the key threshold questions is whether the tribunal whose actions are being challenged is, in fact, a public body. Judicial review is available to check executive action. Therefore, only public bodies can be subject to judicial review. Relevant considerations for determining whether a particular tribunal is a private body or a public one include: the tribunal's functions and duties and the sources of its power and funding; whether the government directly or indirectly controls the body; and whether government would have to occupy the field if the body were not already performing the functions it does. A body or tribunal will be subject to public law, and therefore judicial review, if it is part of the machinery of government: McDonald. A party seeking to challenge administrative action should also determine to which court it should apply for judicial review. Both the provincial superior courts and the Federal Courts have judicial review jurisdiction. Typically, the choice of courts is determined by whether the source of the impugned authority's power is provincial or federal. The final threshold matter that a party must establish, before gaining access to judicial review, is that he or she has exhausted all other adequate means of recourse for challenging the tribunal's actions. An alternative form of appeal will not be inadequate based only on unproven allegations that an appellate tribunal will suffer from the same errors or biases as the original tribunal: Harelkin. Remedies on Judicial Review:

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Certiorari (cause to be certified) is a special proceeding by which a superior court requires some inferior tribunal, board, or judicial officer to provide it with the record of its proceedings, for review for excess of jurisdiction. A successful certiorari application results in the quashing of a tribunal's order or decision. It is an ex post facto remedy. Prohibition is another special proceeding, issued by an appellate court to prevent a lower court from exceeding its jurisdiction, or to prevent a non-judicial officer or entity from exercising a power. Unlike certiorari, which provides relief after a decision is made, prohibition is used to obtain preemptive relief. Mandamus (we command) is a writ issued by a superior court to compel a lower court or government agency to perform a duty it is mandated to perform. In practice, it is often combined with an application for certiorari (sending something back while also forcing the original tribunal to reconsider it in a procedurally fair manner). If the court issues directions, it must clearly state what the original panel is to do or what it must refrain from doing. Those directions may only protect against unfair procedures or excess of power, and cannot direct the tribunal to decide in a particular way. Declaration is a judgment of a court that determines the legal position of the parties, or the law that applies to them. There are two kinds of declarations: the public law variety, used to declare some government action ultra vires, and the private law variety, used to clarify the law or to declare a private party's rights under a statute. The prerogative writs have since been transformed by statutory reform, as some provinces have enacted omnibus statutes governing judicial review or statutory/civil procedure, while others used their Rules of Court to enact changes. Key features include the following: The statutes generally provide for simplified application procedures it is sufficient for a party to set out the grounds on which relief is sought and the nature of the relief sought The statutory schemes provide for simplified remedies The statutes generally clarify who may be parties The statutes generally provide for a right of appeal judicial review applications are generally made to provincial superior courts, and the statutes provide for a subsequent right of appeal to the provincial Court of Appeal The statutes may also address the inability of judicial review mechanisms to challenge interlocutory orders and to resolve interim disputes On judicial review courts have discretion to refuse a remedy even where one is clearly warranted by the facts of a case. This refusal may occur where adequate alternative remedies are available, where the applications are dismissed as being premature, where the issues are moot, where present circumstances make granting the remedy impossible, if the court believes the tribunal's error did not affect its overall conclusion, and where the party making the application does not come before the court with clean hands. McDonald v. Anishinabek Police Service et al. (2006, OSCJ, Div. Ct.) McDonald brought an application for judicial review alleging that the Police Chief was without statutory authority to discharge him and that there was a lack of procedural fairness and a denial of natural justice He sought reinstatement and payment of his wages from the date of his termination as remedies There is only one rule in modern interpretation of statutes, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.

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After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy in its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. Taking into account the complex interplay between the four legal regimes at play in this case, the court finds that the Police Chief's actions (and powers to hire and fire which were derived from contract and not from statute) are public enough to permit judicial review. The prerogative writs are thus available where a public decision-maker owes a duty of fairness, and have evolved into a flexible remedy not merely circumscribed by the JRPA. The scope of judicial review is not limited to boards or bodies constituted under statute and extends to bodies established by the exercise of prerogative power. The prerogative writs are not limited in their application to boards or tribunals constituted under statute, and may be applied to bodies constituted pursuant to prerogative powers, if the decision in question affects the rights or legitimate expectations of an individual. The prerogative writs will be available as a general remedy for supervision of the machinery of government. If the body is fulfilling a public law function, then the body in question is subject to judicial review. A body will be fulfilling a public law function if it is exercising public law functions or if the exercise of its functions has public law consequences. Various factors can be used to distinguish domestic (private) tribunals from public bodies: the source of the board's powers; the functions and duties of the body; whether government action has created the body, or whether, but for the body, the government would directly occupy the field; the extent of the government's direct or indirect control over the body; whether the body has power over the public-at-large; the nature of the body's members and how they are appointed; how the board is funded; the nature of the board's decisions (and whether it seriously affects individual rights and interests); whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed; and the body's relationship to other statutory schemes or other parts of government Applying these criteria to the Aboriginal Police Service, the source of the power exercised by the APS is entirely public, and the court ultimately concludes that it is a public body fulfilling a government function as part of the machinery of government and is therefore subject to JR. The APS decision to terminate McDonald's employment is an administrative and specific decision that affects his individual rights and interests, and because he was a public officer and not a mere employee, he was owed a duty of fairness. Because the Police Chief dismissed the applicant before he had an opportunity to know the case against him and to respond, that duty of fairness was not met. So the doctrinal takeaway is that public powers, outside of statutorily constituted public bodies, can likely still be judicially reviewed, provided they meet the factors set out.

McKinnon v. Ontario (Ministry of Correctional Services), (2002, Ontario Board of Inquiry, HRC): The issues are whether the Ministry failed to comply fully with one or more of the 1998 orders, and in consequence of which, the atmosphere of the Toronto East Detention Centre remains poisoned? The complainant need only prove noncompliance with the order, at which point the burden shifts to the respondent Ministry to rebut the presumption that in consequence thereof the environment of his workplace remains poisoned. With regards to the training programme implemented, the Board is entitled to examine whether

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the programme was inappropriate having regard to the reasons and findings on which that order was based, and finds that as it was not a programme of the kind ordered, there was no approval of an appropriate programme. Similarly, respecting the poisoned work environment, mere superficial compliance with the order is considered insufficient, and although the Ministry has at times talked the talk about institutional reform, it appears never to have walked the walk. Although the Board concedes that the complaints only reveal a workplace that remains poisoned when examined collectively, and perhaps not individually in and of themselves, it finds that the failure of management at all levels to take McKinnon's complaints seriously and/or to properly investigate them amounts to condonation by the corporate respondent. Concerning the Board's remedial jurisdiction, the broad and liberal view to be taken of a Board's authority under s. 41(1)(a) of the HRC must be seen to run to the crafting of new orders so as to achieve an otherwise unattainable compliance with the Act and fulfilment of the underlying purpose of the original order itself. The Board thus finds authority to exercise great discretion in the direction of ordering and in respect of future practices, and can craft more careful, direct, and comprehensive orders than was originally done. Whether this process is described as the crafting of new orders or the generous amplification of existing orders was not considered important.

How do courts view the internal processes of administrative bodies in the exercise of their powers? How does the court understand the ability of administrative agencies themselves to make decisions and then undertake their own mechanisms for review of their decisions there is usually in a statutory scheme a recourse of steps that one can take before needing to turn to the courts courts may refuse to grant when an applicant did make proper use of the internal recourses Harelkin is a leading case on this issue (though a little idiosyncratic); majority shows extraordinary deference to the university, which seems to have screwed up all the way along a decision is made in the department of social work to kick him out of the program: the bad grades are likely defensible, but the reason of being neurotic is likely not there is an internal appeal process through the University of Regina they make a decision according to a process that on its face looks problematic didn't get a hearing in person, wasn't allowed to be represented, and other procedural fairness concerns from there, though, he was entitled to go up to the Senate, but he did not, having lost confidence in the fairness of the process courts have authority to grant certiorari to set aside the decisions of the decision-maker where natural justice has been violated, but why is it not the case here? Dickson from the dissent says there was a flagrant violation of procedural fairness that we cannot generally assume a body who has violated this so flagrantly at one level will correct itself at a higher level, especially with path-dependence / institutional commitment that commits bodies to decisions as you go up in levels moreover, even if he went to the Senate, what would the Senate do? Likely de novo but this maybe helps Beetz' point, because the fact that there would be a de facto hearing de novo would militate in favour of there being procedural fairness protections being in place at this internal appellate level in Harelkin, the Court is dealing with the contention that in judicial review it has the discretion to withhold a remedy that would otherwise be rationalized or justified by the statutory regime the discussion revolves around when and why discretion should be exercised this case demonstrates the importance that the Court attaches to the exhaustion of internal remedies; there is a kind of recognition of or attention to the appropriate role of the courts the question of whether you should keep going up an internal system or cut and run to the courts also arises in cases where there is a question of reasonable apprehension of bias

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Harelkin v. University of Regina (1979, SCC): The two main issues before the SCC are whether the claimant had a right to be heard by the committee of the university council, and whether the discretionary remedies should be refused because the claimant should have pursued his right of appeal to the university senate before resorting to prerogative writs The majority finds, like the dissent, that the committee had a statutory duty to hear the claimant, which duty was not complied with, and also that all those persons connected with the university who were concerned with the claimant's case acted in good faith. Unlike the minority, though, the majority finds that the claimant's applications for certiorari and mandamus should not have been allowed, as the claimant had, and ought to have exercised, a better alternative remedy in his right of appeal to the senate committee. As to the argument that the original decision was nullified by the failure to comply with natural justice, and therefore could not be appealed, the majority instead finds that if there is jurisdiction but there has been a failure of natural justice, the decision is valid until it is quashed or set aside. In this case, the university committee had the jurisdiction to make the decision it did even though it failed to observe the rules of natural justice. Therefore, its decision could have been appealed to the senate committee. The majority then finds that the senate committee was required to hear the appellant on appeal from the university committee, and that such an appeal would have been adequate to cure the failure of natural justice by the university committee. The appellant should have assumed that the body of super jurisdiction should give him justice, regardless of the failings below. The court also finds a flexible standard for what an appeal could entail, one capable of meaning review, retrial, or new trial in this context. In this case, the appeal would be more likely to take a form resembling that of a de novo trial than that of a pure appeal, because the record of the original decision would not likely be transferred up the chain, and because the lack of legal training of the triers of fact at each stage would tempt those hearing the appeal to re-try the case. In sum, it should not have been assumed that the senate committee would also have erred in law, and thus this right of appeal provided the claimant with an adequate alternative remedy. Additionally, this remedy was a more convenient remedy for both the appellant and the university in terms of costs and expeditiousness, and the courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right. Dickson, in dissent, finds that a procedural error of failing to observe the rules of natural justice, in the context of a statutory duty to hold a hearing, is an error going to jurisdiction rather than an error within jurisdiction. Thus, certiorari should be available notwithstanding any right of appeal to an administrative or internal body, where that body is only capable of exercising purely appellate functions rather than conducting a hearing de novo. For Dickson, the discretion for a court to grant a remedy is broad when the error is nonjurisdictional and there is an appeal to the courts, but virtually disappears when the error is jurisdictional and the right of appeal, if any, is to an administrative or domestic tribunal sitting in a purely appellate role. Where an alternative remedy exists, in the case of want of jurisdiction, certiorari remains available but, in each case, the court in exercising its discretion must consider the convenience and adequacy of the alternative remedy. For Dickson, the nature of the error must be considered, as well as the nature of the appellate body, and in this case an appeal would simply not be a sufficient remedy for the failure to do justice in the first place. JRPA and Federal Courts Act determine not only forum, but also remedies.

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Chapter Four The Rule of Law The rule of law can be characterized by three interrelated features: a jurisprudential principle of legality; an activity or practice of law-making among and within an institutional arrangement of government; and a distinctive political morality. Together, these features affirm the rule of law as an overarching normative relationship among legal subjects and the state, seeking to prevent the arbitrary use of power, and encouraging appropriate forms of responsiveness among government institutions and between these institutions and affected individuals. Brian Tamanaha Guide to the Rule of Law: The rule of law, at its core, requires that government officials and citizens are bound by and act consistent with the law. This basic requirement entails a set of minimal characteristics: law must be set forth in advance (must be prospective) law must be made public law must be general law must be clear law must be stable and certain law must be applied to everyone according to its terms One function of the rule of law is to impose legal restraints on government officials, in two ways: (1) By requiring compliance with existing law; and (2) By imposing legal limits on law-making power. A second function of the rule of law is to maintain order and coordinate behaviour and transactions among citizens. Primary benefits of the rule of law (note that each has problems in connection with it): (1) Enhances certainty, predictability, and security between citizens and government and among citizens (2) Restricts discretion of government officials, reducing willfulness and arbitrariness (3) Peaceful social order is maintained through legal rules (4) Economic development is facilitated by certainty, predictability, and security (5) Fundamental justice of the requirement that the rules must be applied equally to everyone according to their terms Basic elements in establishing the rule of law (each has problems in connection with it): (1) Widely shared orientation within society among citizens and government officials that the law does rule and should rule (2) Presence of an institutionalized, independent judiciary (3) Existence of a robust legal profession and legal tradition committed to upholding the rule of law The New Minimalist Rule of Law: In a trilogy of recent cases Imperial Tobacco, Charkaoui, and Christie the Supreme Court has considerably narrowed the scope and effect of the rule of law within Canadian law. According to the Court, the rule of law incorporates a number of familiar themes and embraces at least four principles: (1) it is supreme over private individuals as well as over government officials, who are required to exercise their authority non-arbitrarily and according to law; (2) it requires the creation and maintenance of a positive order of laws;

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(3) it requires the relationship between the state and the individual to be regulated by law; and (4) it is linked to the principle of judicial independence The relationship of courts to other branches of government now aspires to a kind of respectful deference (where merited), characterized by an institutional dialogue about the appropriate use and control of discretion, rather than the older command-and-control relationship. One problem for the model of deference as respect has been the rise of privative clauses, the general form of which is a statutory provision protecting the decisions made by public officials in boards, tribunals, and ministries either from further dispute internally (a finality clause) or from judicial review (an ouster clause). Today, the privative clause has come to be viewed as a communication from the legislature that courts should recognize the interpretive authority of the tribunal within its area of expertise, but that judges could exercise their rule of law powers of oversight on constitutional and jurisdictional matters. A second problem for respectful deference is the choice of the standard of review, which indicates a court's understanding of independence and expertise within these administrative bodies, regulates the contours of the administrative state and exercises of power, and controls the discretionary features within the exercise of judicial review. The pragmatic and functional approach to weighing the criteria involved in the choice of the standard of review illustrates courts' attempts to grapple with the sheer variety of administrative bodies, while also affirming the legitimacy of review of the multiplicity of decisions and rulings. The pragmatic and functional approach responds to both the nature of the tribunal as well as the nature of the issue that is subject to appeal. Deference will be shown when a match exists between tribunal expertise and the issue. Roncarelli v. Duplessis (1959, SCC): The case demonstrates numerous examples of arbitrary power and abuse of power: the existence of unlimited discretionary powers in an agency; a decision-maker acting in bad faith; inappropriate responsiveness to an individual situation where important interests are at stake consideration of irrelevant factors in the decision; disregard of the purpose of a statute; and dictation of the decision by an external and unauthorized person. No opportunity to respond; no reasons are provided. There is no Charter and no Bill of Rights, so the case is only decided on common law analysis. Rand finds that no legislative act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Discretion necessarily implies good faith in discharging public duty. To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor is beyond the scope of the discretion conferred. There was here not only revocation of the existing permit but a declaration of a future, definitive disqualification of the appellant to obtain one. This purports to divest his citizenship status of its incident of membership in the class of those of the public to whom such a privilege could be extended. regarding discretion, on p. 111, para. 1, Rand notes that there was no duty to give the kinds of reasons that he did, no general requirement of justification; so like in Baker, the defendant's overt chain of reasoning came back to haunt him another link between this and Baker: the notion of privilege and non-entitlement v. reliance

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interests here, if the state is going to limit common law rights, and then create a space for licensing, then we ought to take what looks like a privilege to have more of a sense of entitlement than that Rand also suggests that Duplessis' actions ran so far from his public office positions that he could be privately liable, and indeed there was a private action against him; but that is outside of our public law scope There are two ways to understand the use of the principle of the rule of law in this judgment: (1) The Chairman had not made a decision at all because Duplessis had substituted his decision for that of the proper authority, thus exercising his power arbitrarily. The legal wrong committed against the rule of law here was the violation of the legal principle of validity, which affirms that every official act must be justified by law or be found ultra vires: the decision was thus not valid because the power to cancel licences was not given to either the premier or the attorney general. The problem with this formalist model of understanding Rand's judgment is that it suggests that the Chairman's decision would have been found valid had he not consulted Duplessis, particularly because the enabling statute granted the Chairman seemingly unfettered discretion. (2) Rand: public authorities, especially those with broad discretionary powers, are always constrained by the unwritten constitutional principle of the rule of law, even when the legislation contains no explicit or written constraints. Discretion necessarily implies good faith in discharging a public duty, and thus even if the Chairman had acted on his own in cancelling Roncarelli's licence, he would have used his discretionary powers inappropriately, contradicting the substantive content of the rule of law. Thus, Rand went even further in holding that the administrative tribunal violated Roncarelli's rights as a citizen the freedoms of religion, of expression, and to pursue his livelihood thereby damaging the normative relationship between citizen and state.

Re Manitoba Language Rights (1985, SCC) The Court describes the rule of law as a highly textured expression ... conveying ... a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. The Court also recognized the rule of law as a fundamental postulate of our constitutional structure whose constitutional status was beyond question. The rule of law as a principle of legality can be understood in two ways: (1) The law is supreme over government officials as well as private individuals and therefore excludes the influence and operation of arbitrary power. (2) Law and order are indispensable elements of civilized life. The rule of law thus requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. The court invokes the rule of law to conclude that the Manitoba government's repeated failure to respect the mandatory constitutional requirements of bilingualism exhibited a failure to comply with the manner and form of the legislative enactment and therefore rendered the legislative product invalid. By failing to adhere to the terms of the province's constitutional document, Manitoba had acted without legal authority, had acted arbitrarily, and had allowed its officials to act outside the law. Relying on the second understanding (above) of the rule of law, then, the Court concludes that although the remedial force of the rule of law compels bilingual enactment of all unilingual provincial laws (which would in the normal circumstances be invalid and unenforceable), the only appropriate solution for preserving the principle of legality would be to delay that declaration until such time as it is possible for Manitoba to comply with its constitutional duty. This case is the original source for the constitutional remedy of a delayed declaration of

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invalidity, which, despite its exceptional origins, has become a preferred one in public law. British Columbia v. Imperial Tobacco Canada Ltd. (2005, SCC): The tobacco companies challenged the validity of the Tobacco Damages and Health Care Costs Recovery Act on three constitutional grounds: extra-territoriality, judicial independence, and the rule of law. As to judicial independence, the Court recognizes its status as a foundational principle of the Constitution, holds that it consists in the freedom to render decisions based solely on the requirements of the law and justice, and finds that its three core characteristics or essential conditions are (1) security of tenure, (2) financial security, and (3) administrative independence. As long as legislation cannot be reasonably seen to interfere with the courts' adjudicative role or with these essential conditions, judicial independence can abide unconventional rules of civil procedure and evidence. With respect to the rule of law, the court here affirms that the rule of law does not require that legislation be prospective (except in criminal law) or general, and that the principle also does not prohibit the conferral of special privileges on the government or ensure a fair civil trial. Although the rule of law's status as an unwritten constitutional principle is confirmed, the principle does not possess the ability to strike down legislation based on its content. It cannot, then, speak directly to the terms of legislation (or provisions of statutes). Manitoba Language Rights and Imperial Tobacco: in MLR, you see the collision between the rule of law requirements that the courts hold the government accountable to law and the preference of the rule of law for governing through law there is no question that the Manitoba government has for decades been acting contrary to the constitution, and even contrary to its own law the court resolves this problem by giving a delayed declaration of invalidity this case brings to the surface dimensions of the rule of law which the court does not often have occasion to articulate it particularly speaks to the concept of rule by law Imperial Tobacco speaks to another dimension of ruling by law this case concerns an attempt by the BC Government to hold tobacco companies ultimately liable for the health-care costs of people who contract serious tobacco-related illnesses this Act allows the government to adopt rules of evidence and civil procedure that, it is argued by the tobacco companies, subverts the rule of law other arguments are also made, relating to tipping the natural balance of justice in favour of the government; also it is retrospective (jurisdictional concern) and threatens judicial independence

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Chapter Five The Duty of Fairness The duty of fairness promotes sound public administration by ensuring that decisions are made with input from those affected by them; well-informed decisions are likely to be better decisions. More broadly, though, the duty of fairness protects dignitary interests by ensuring that people are allowed to participate meaningfully in decision-making processes that affect them; it legitimates administrative processes by requiring that people be treated with respect. In general, the duty of fairness requires two things, both of which are modern restatements of venerable natural justice protections: (1) the right to be heard, and (2) the right to an independent and impartial hearing. The duty of fairness is codified to some extent in some Canadian jurisdictions, but remains for the most part a creature of the common law. The Charter provides a constitutional backstop for procedural protection, but applies in a narrower range of circumstances than the common law. Two questions arise when judicial review proceedings are brought alleging a breach of the duty: (1) What is the threshold for the application of the duty? Although the duty of fairness applies to a wide range of decisions, there remain decisions to which it does not apply. (2) How is the content of the duty determined? The Threshold Test When is Fairness Required? Subject to some exceptions, the duty of fairness applies to any decision that affects an individual's rights, interests, or privileges. The doctrine of legitimate expectations may expand the application of the duty of fairness, based on the conduct of public officials, where a party has been led to expect a particular process will be followed, or, more controversially, a particular outcome reached, in a decisionmaking process. Even in this second circumstance, though, the doctrine of legitimate expectations operates not to require a particular outcome but, instead, to require that procedural protection be provided before an expectation of a particular outcome can be dashed. Courts require clear statutory direction in order to limit or oust procedural protection, and thus the common law presumes that the legislature intended procedural protection to apply (and legislators thus often draft legislation with this in mind). The Charter principles of fundamental justice subsume procedural fairness protection; however, s. 7 applies only in the context of deprivation of life, liberty, and security of the person, so ordinary legislation could limit or even oust the application of the duty of fairness to the licensing scheme without infringing the Charter. Where s. 7 is found to have been infringed, though, it is unlikely that legislation limiting or ousting the duty of fairness will be considered justified under s. 1: Charkaoui (2007) Limitations on the Scope of the Duty of Fairness: The duty of fairness applies to decisions, meaning final dispositions of a matter, and only rarely will it apply to investigations or advisory processes that do not have any direct consequences (even though they may lead to more formal decision-making processes that do). The duty of fairness does not apply to legislative decisions or functions (recall Imperial Tobacco rationales). The rules governing procedural fairness do not apply to any body exercising purely legislative functions. Cabinet and ministerial decisions are not subject to the legislative exemption per se, but it will often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be exempted from the duty: e.g. Inuit Tapirisat.

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Subordinate legislation may or may not be covered by the legislative exemption political approval for such legislation is subsidiary in nature, and thus the concern about interference in the political process is lessened, especially where the law-making authority has been delegated to actors outside the political process altogether, for example, independent tribunals. Substance is more important than form where the legislative exemption is concerned: Homex Realty. Policy decisions that are covered by the legislative exemption, as a purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection: Knight v. Indian Head. In certain circumstances where procedural requirements cannot be met without causing harm of some sort, public safety concerns will sometimes demand an immediate decision regardless of the duty of fairness, and in these circumstances, courts may defer compliance with the duty of fairness protections until after the relevant decision has been made.

The Content of the Duty of Fairness: The duty of fairness may include one or more of the following components: a right to notice of a potential decision, a right to disclosure of particulars, a right to make written submissions, a right to a hearing within a reasonable time, a right to an oral hearing, a right to counsel, a right to call and cross-examine witnesses, and a right to written reasons for a decision. Duty of fairness concerns are least likely to arise in the context of tribunals that hold oral hearings, because the procedure for those hearings will usually be well-known by all concerned. Some tribunals operate pursuant to detailed legislation that establishes procedural requirements. Others are empowered to establish their own procedures and may commit those procedures to writing, with policy statements or more formal rules that they are allowed to promulgate. Baker lists five criteria to consider in determining the degree of fairness that must be provided: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the relevant decision; and (5) deference to the procedural choices made by the decision-maker. Judicial Review of the Duty of Fairness: The three standards of consideration for judicial review of substantive decisions are not at play in regard to the duty of fairness itself. Historically, compliance with the duty of fairness has been regarded as a jurisdictional question, and jurisdictional questions must be answered correctly. There is still room for deference when it comes to the duty of fairness, at the stage of taking into account the needs of the particular decision-maker in fashioning the content of the duty. However, once the content has been determined, the conduct of decision-maker will be assessed and the court will use the standard of correctness to determine whether or not the duty of fairness has been met. There is no longer any distinction regarding the application of the duty of fairness between public office holders and other employees in dismissal cases: Dunsmuir. The duty of fairness

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thus has no application to the dismissal of employees. The reasoning behind this is that modern public office holders enjoy contractual employment relationships, and their contracts address procedural fairness concerns; thus, the crucial question now is whether or not a public employee has a contract of employment. This decision still clearly limits the protection of public employees to some extent. It will no longer be possible for public office holders to be restored to their positions, since that remedy is not available for breach of contract. Nicholson v. Haldimand Norfolk (Regional) Police Commissioners (1979, SCC): Abandoning the all-or-nothing dichotomy between judicial and administrative decisions, the majority of the Supreme Court held that a general duty of procedural fairness applies to administrative decisions. But for the flexibility provided in this decision, there was no halfway house between the observance of natural justice for a constable who had served eighteen months as a holder of public office and the arbitrary removal of a constable who had held office for less than eighteen months. Although the appellant Nicholson cannot claims the procedural protections afforded to a constable with more than eighteen months' service, he cannot be denied any protection, and must be treated fairly. In any statutory circumstance, quasi-judicial, or administrative circumstance, but particularly where, as in this case, the holder of public office is engaged in duties connected with the maintenance of public order and preservation of the peace, to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected. Thus, consistent with the duty to act fairly, the respondent Board should have told Nicholson why his services were no longer required and given him an opportunity, whether orally or in writing, to respond. Status in office deserves this minimal protection, however brief the period for which the office is held. Canada (Attorney General) v. Inuit Tapirisat of Canada (1980, SCC): At issue was the federal Cabinet's rejection of an appeal from a decision made by the CRTC allowing a rate increase without allowing the petitioning group to be heard. The Cabinet heard from the utility and the CRTC and took advice from ministerial officials, but the petitioning group was essentially left out of the proceedings. The Court finds the discretion of the Governor in Council to be complete, provided he observes the jurisdictional boundaries of the legislation. Given this interpretation, there is no need for Cabinet to give reasons for their decision, to hold any kind of a hearing, or even to acknowledge the receipt of a petition. In such a circumstance, the Court must fall back upon the basic jurisdictional supervisory role and in so doing construe the statute to determine whether Cabinet has performs its functions within the boundaries of it and in accordance with the terms of the parliamentary mandate. The Court finds the Cabinet's power to be legislative in nature (legislative action in its purest form), in part because the legislation authorized Cabinet to overturn a decision of the CRTC on its own motion. Strengthening this position was the consideration of practical difficulties inherent in extending the duty of fairness, such as hearing requirements and the undermining of the Cabinet's public policy-making role. The Court's decision can be criticized for overstating these difficulties in applying the duty of fairness to Cabinet decisions. It would certainly be possible to flexibly tailor the content of the duty, and moreover, the case for exempting Cabinet decisions from the duty may be weaker than for exempting primary legislation, as Cabinet decision-making is not subject to political scrutiny in the same way.

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in Inuit Tapirisat, we looked at what goes into the thinking of the Court when deciding whether a decision is legislative legislators have to act, they make policy decisions; when Courts come to consider these decisions, they operate by analogy at various points in the judgment of this case, the Court appears to identify the form that this decision takes (an appeal here, which does not look legislative, has a more judicial character; however, the legislation says that what Cabinet does on appeal it can also do on its own initiative), the actor (which is cabinet in this case, but the executive simply by virtue of being elected officials are not exempted from a duty of fairness), the way the decision is made, the content of the decision, etc. The Court is not going to apply the duty of fairness to every action that a legislature takes, because the accountability that judicial review provides is not always as appropriate as the democratic accountability afforded to elected officials in Homex, the court juggles the same factors as above, and applies them to a different context

Homex Realty and Development Co. v. Wyoming (Village) (1980, SCC): The legislative exemption from the duty of fairness is itself subject to exceptions. Here the Court concluded that the passage of this municipal bylaw was subject to the duty of fairness. Having been unable to resolve a dispute with the developer about the provision of services in a subdivision, the village passed a bylaw deeming the lots purchasing by the developer not to be a registered plan of subdivision. As a result, the developer could not sell individual lots without the village's permission. In determining the appropriate interpretation of the bylaw, the Court takes into account the statutory framework, the nature of the action being undertaken by the village, and the general circumstances prevailing at the time of the action; this echoes the Inuit Tapirisat approach. The village is itself entirely a creature of statute, but is also a body composed entirely of elected officials; the statute does not expressly require notice to affected landowners; Homex was not heard by the village per se, and although there had been a full awareness by both sides of the position of the other in the dispute, Homex did not have an opportunity to make known its position once fully aware of the village's final position. Plainly, the motivation for the bylaw was the particular dispute between the developer and the village. In these circumstances, the Court finds that the village was not allowed to couch its actions in a form (legislation) designed to oust the application of the duty of fairness. Substance is more important than form where the legislative exemption is concerned. Homex makes an application for judicial review; they did not receive notice of this bylaw or an opportunity to reply had the municipality given notice, Homex would have done something called checkerboarding that would have done an end-run around the municipality, which is precisely why they didn't give notice SCC considers whether the municipality owed Homex a duty of fairness, and if so, whether the duty was breached the Court identifies as important the fact that what's being interfered with here are property rights (weighing in favour of there being a duty), that what's at issue looks like the passing of a law, and moreover a law that serves a public policy interest (weighing against such a duty), and also Estey's point that this bylaw was pretty clearly designed to resolve a dispute between two parties (weighs in favour of the duty again) even if it's not legislative, though, and a duty of fairness is owed, Wyoming argues that Homex got the notice that is at issue; the Court says its actions don't count as meaningful notice, though for Dickson, in dissent, it's a problem for Wyoming that giving notice would have led to Homex

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checkerboarding for Estey, though, although the duty is not met and ordinarily a remedy would be owed, there is always discretion to deny a remedy (especially in the zone of prerogative writs), and here the remedy will be denied essentially because Homex did not come to the court with clean hands Inuit and Homex both illustrate the ways in which the Court looks at (and also through) factors like the form the action takes, the parties, and the content

Knight v. Indian Head School Division No. 19 (1990, SCC): Procedural fairness is due to an employee who is an officeholder at pleasure, even though the employer did not need to show cause for dismissal under either the contract of employment or the statute. The duty to act fairly does not depend on doctrines of employment law, but stems from the fact that the employer is a public body whose powers are derived from statute, powers that must be exercised according to the rules of administrative law. The existence of a general duty to act fairly will depend on the consideration of three factors: (1) the nature of the decision to be made by the administrative body; Decisions of a legislative and general nature can be distinguished from acts of a more administrative and specific nature (which do not entail a duty to act fairly), and the finality of the decision will also be a factor to consider. (2) the relationship existing between that body and the individual; and The justification for granting to the holder of an office at pleasure the right to procedural fairness is that, whether or not just cause is necessary to terminate the employment, fairness dictates that the administrative body making the decision be cognizant of all relevant circumstances surrounding the employment and its termination. (3) the effect of that decision on the individual's rights. There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual. Neither the terms of the statute nor those of the contract of employment abrogate the duty to act fairly in this case. A duty of fairness is entrenched in the principles governing our legal system. At the same time, it is important to respect the needs of administrative decision-makers. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. In the majority's view, the appellant Board made itself sufficiently available for discussion through meetings with the respondent and each party's concerns were made fully known to the other. The respondent thus knew the reasons for his dismissal and was provided with every opportunity to be heard. The requirements of the duty to act fairly in the scope of the employeremployee relationship have therefore been met, and the respondent was properly dismissed. In Dunsmuir, which narrows significantly the circumstances in which the duty of fairness applies, the Court notes that on its new approach the duty would not have applied in the circumstances of this case, given the existence of an employment contract. Nevertheless, the general principles outlined in Knight concerning the duty of fairness owed by administrative decision-makers remain relevant. Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC): The fact that a decision is administrative and affects the rights, privileges, or interests of an individual is sufficient to trigger the application of the duty of fairness. The concept of procedural fairness, however, is eminently variable and its content is to be decided in the specific context of each case. Underlying all of the factors identified in Baker is the notion that the purpose of participatory

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rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decisionmaker. The five factors identified (not exhaustive): (1) The nature of the decision being made and the process followed in making it 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 (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 (3) The importance of the decision to the individuals affected the more important the decision is to the lives of those affected and the greater its impact on those persons, the more stringent the procedural protections that will be mandated (4) The legitimate expectations of the person challenging the decision if the claimant has a legitimate expectation that a certain procedure will be followed, or that a certain result will be reached, fairness may require more extensive procedural rights than would otherwise be accorded; nevertheless, the doctrine cannot lead to substantive rights outside the procedural domain (5) The choices of procedure made by the agency itself particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances what kind of decision is this in Baker, and how is its nature relevant? It is specific to the individual, the interests at stake are very high, it is a discretionary decision and it is a positive exception (asking for an exception to the rules that would otherwise apply to her) In this case, the articles of the Convention and their wording did not give rise to a legitimate expectation on the part of Ms. Baker that when the decision on her H&C application was made, specific procedural rights above what would normally be required under the duty of fairness would be accorded, a positive finding would be made, or particular criteria would be applied. Therefore, she had no legitimate expectation affecting the content of the duty of fairness. In terms of participatory rights, the flexible nature of the duty of fairness, however, recognizes that meaningful participation can occur in different ways in different situations. In these circumstances, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled, particularly given the fact that several of the factors relevant to determining the content of the duty of fairness point toward a more relaxed standard. The opportunity for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. Regarding the provision of reasons, any reasons requirement under the duty of fairness must leave sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient. In Ms. Baker's case, the provision of written reasons are necessary, but the requirement was fulfilled by the provision of the notes of Officer Lorenz. These are both sufficient to satisfy the requirement under the duty of fairness, and to represent the reasons for decision themselves. Baker provides an elevation of the duty to provide reasons, to something that will be required as a matter of course

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reasons demonstrate that a claimant has been heard, may act as a form of discipline for the decision-maker reasons are written for two audiences: communication of the decision to the affected parties, and for the facilitation of the court's review of the legality of the decision potential rationales for not giving reasons include burden on the person required to give them, a concern about boiler-plate decision-making, and to the extent that what goes on in a court room is viewed as a gold standard of process, up to about fifteen years ago trial judges themselves were not even strictly bound by a requirement to give reasons we are describing reasons here as a procedural entitlement (not a substantive aspect, though they are in some sense the substance of the decision)

Canada (Minister of Citizenship and Immigration) v. Shwaba (2000, Fed. Ct.): there is a duty to give reasons, but what constitutes reasons? Is it enough to say because I said so, or is there some minimal content that must be met? Duty is set out in paragraph 11 s. 169 of the IRPA provides a complete code on the subject of reasons all decisions by both tribunals may be rendered orally or in writing, except a negative decision by the Refugee Protection Divisions, which must be in writing in this case, the Minister hears of a positive decision and asks for written reasons Citing Baker, the court finds that the duty of procedural fairness requires, in certain circumstances, that reasons be provided by administrative authorities. The reasons most commonly invoked to support such a requirement are: that it leads to better reasoned and more articulate decisions; that it reinforces public confidence in the judgment and fairness of administrative tribunals; that it allows parties to assess the strength of a particular ruling and to determine the grounds upon which they may wish to appeal or to apply for judicial review. When written reasons are required, it is not sufficient to state that the determination in the affirmative is based on the evidence without further explanation. It is not enough to summarize the parties' submissions, then state a conclusion without more. Both of the parties are entitled to an analysis of their arguments and of the supporting evidence if the reasons are to serve their purpose. The adequacy of the reasons in any particular case will be contingent on the particular facts, and will also be assessed in light of the entire record. If, for example, the transcript of the hearing allows the reader to understand the Board's decision, the reasons may not have to be as detailed. In this case, the reasons were clearly insufficient and inappropriate to fulfil any of the rationales for requiring them. They failed to meet even a skeletal threshold. Judicial review was thus allowed, the Board's decision set aside, and the matter referred back to the Board for rehearing and redetermination by a differently constituted panel. Charkaoui v. Canada (Citizenship and Immigration) (2008, SCC): Appellant alleged that his right to procedural fairness had been violated as a result of notes and recordings of interviews conducted by CSIS in relation to the CIC's security certificate being systematically destroyed, in accordance with internal policy of CSIS, once the officers completed their reports. Appellant files a motion for a stay of proceedings, in which he asked that the certificate be quashed and he be released; in the alternative, he asked that the new evidence be excluded. Both levels of the Federal Court dismissed his applications. Charkaoui's application succeeds (though not for a stay of proceedings), and the SCC finds that CSIS is bound to disclose to the ministers responsible all information in its possession regarding the person named in the security certificate. The ministers must convey this information to the designated judge. The judge must then disclose the information to the

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person named in the certificate, except to the extent that disclosure might, in the judge's view, endanger Canada's security. These obligations of disclosure cannot be properly discharged where CSIS has destroyed what it was bound to disclose. As a matter of text and context, the Court therefore concludes that CSIS is bound to retain the information it gathers within the limits established by the legislation governing its activities. The duty to retain information is justified by the fact that, where the assessment of the reasonableness of a security certificate is concerned, the ability of the ministers and of the designated judge to properly perform their respective duties regarding the issuance and review of security certificates, and the review of the detention of persons named in such certificates, may be compromised by the destruction of original documents. For practical reasons and as the proper interpretation of the statute, CSIS officers must retain their operational notes when conducting investigations that are not of a general nature. Whenever CSIS conducts an investigation that targets a particular individual or group, it may have to pass the information on to external authorities or to a court; thus, the duty to retain information is limited to targeted investigations. Section 7 of the Charter also imposes on CSIS a duty to disclose evidence to the ministers, the designated judge, and the named person. The content of the duty is subject to constraints flowing from public safety/security and confidentiality concerns. A stay of proceedings relating to the security certificate should only be granted if two criteria are met: (1) the prejudice caused by the abuse in question will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. This case gives an insight into one of the other aspects of the duty of fairness, and shows how procedural fairness can work under the Charter with respect to s. 7 security certificates put someone into a different regime entirely one of the things that happens when a certificate is issued is that you are automatically detained, even before a designated judge has reviewed the certificate to find out whether or not it is reasonable the original notes and recordings have been destroyed, and all that's left is a summary the other issue is about the fresh allegations and fresh evidence; Charkaoui argues that the evidence on which these fresh allegations keep getting made should be disclosed to him what we're concerned about is only the former issue, which is the public law / administrative issue; rather than the latter Charter issue para. 37 is the statutory provision dealing with a matter of process the mode of reasoning used is to ask what is the purpose of the statute, how is it imposed, what are its objectives, and how are we to interpret its objectives? So this can be contrasted with formalist interpretation; and the court is also not doing what L'Heureux-Dube did in Knight, looking first to the common law the method of reasoning here is to start with the statute and use an understanding of the statutory context to interpret how the statute applies

Island Timberlands LP v. Canada (Foreign Affairs) (2008, Fed. Ct.): Five factors related to the duty of fairness on a public body must be considered in reaching a determination on a breach of due process argument: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates;

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(3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body. Because of the importance of the decision to Island Timberlands, and because that decision was rendered in such a non-transparent manner in form and substance, the Court finds that even at the highest level of deference, and the lowest level of due process, a breach of due process occurred. The cardinal breach of due process is the failure of the Minister to administer a transparent and meaningful process to allow Island Timberlands to make a credible argument for granting an export permit for standing timber in the coastal region of British Columbia. By way of remedy, the court sets aside the original decision and finds that a determination of the applications, on certain directions, will meet the need for fairness in the rendering of a further decision by the Minister. The directions are: (1) that the Minister first state the rationale for the policy to Island Timberlands; (2) that the Minister then provide a reasonable opportunity to respond; and (3) that upon consideration of Island Timberlands' applications and argument, the Minister provide written reasons for the decision rendered. Island Timberlands is another specific case that shows the creativity of the courts in developing procedural fairness mechanisms there is a regime with an important distinction between coastal timber and inland timber with respect to standing and harvested timber this case originally went to court as a fettering of discretion dispute the court morphed the case into being a procedural fairness dispute throughout the proceedings before it reached the Supreme Court the Court says if you're going to make an adverse decision about something that attracts a duty of fairness, then you need to give notice to the parties that are going to be affected about the rationale for the policy etc., and give them an opportunity to respond the Court was of the view that the decision in Island Timberlands was the kind of decision that attracted a duty of fairness, and that this duty was breached one way of understanding how the court frames it was as a failure of providing proper notice another understanding is a failure to give reasons; but either way it seems that the court is attempting to impose a requirement to provide some kind of rationale for the making of the decision note that this is a policy in question and not a law the law is s. 3, which says that the government can act in ensuring adequate supply of timber etc. The policy itself is not law, and therefore can only guide the interpretation of the law, without mandating how it will be interpreted

Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (last amended 2006): the Ontario Statutory Powers and Procedures Act attempts to set up a default set of procedures rather than leaving it to the common law at one level, the SPPA displaces the common law takes silences left by the common law and fills it but there are still spaces within the statute for the common law s. 3 of the SPPA is the provision that tells you the scope of the application of the statute so to what tribunals, etc., the SPPA applies subsection 2 specifically excludes a number of named bodies but you must also ask what is a tribunal here and what is a statutory power of decision,

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in order to interpret through statutory interpretation and common law reasoning what other boards or agencies it might or might not apply to if the statute requires the body to hold a hearing before it reaches a decision or imposes some kind of sanction, then the SPPA will apply but if it does not say it has to hold a hearing, there is also the language of the SPPA of or if a hearing is otherwise required by law, then we are looking at the common law so is there a common law requirement of a hearing here? This gives a continuing role for the common law here, even in a codified statute the SPPA also gives information about whether it trumps or the particular statute, such as the Ontario Labour Relations Act, trumps in questions of procedure and powers other statutes in other provinces may draw the lines in different places with respect to specific content, the SPPA deals with all manner of procedural requirements and provides default codified procedures some examples: s. 4.2: deals with the composition of panels, specifically in this provision procedural or interlocutory matters on the way to a final decision in this case, there needs to be only one member on the panel, but 4.2(2) provides that the chair must take factors into consideration a two member panel must be unanimous in order to reach a decision 4.2.1(2): where a statute requires a minimum number of people to sit on a panel, the SPPA allows a reduction in the number of members at the consent of the parties so this is an example of the SPPA varying procedural requirements and trumping particular statutes there are provisions about standards of evidence, but two important considerations still apply: relevance, and privilege there are also provisions around notice at s. 24 s. 21.2 is important with respect to remedies it grants the body making a decision the power to review or revisit its decision this will be a question to consider whether all internal avenues have been exhausted in seeking judicial review even in here, though, the SPPA is also encouraging bodies to make their own rules that elaborate on the procedural requirements for their particular body (though you can't do it in a way that would be inconsistent with the SPPA, and it also is not law, just guidelines of interpretation) there is no federal analogue to the SPPA, but the other provincial statutes act as some form of analogue

Abdelrazik: the issue is the 1267 procedure the UN Security Council comes up with the 1267 committee, which is used post-9/11 to designate entities and individuals as threats to security member-states are then required to take certain actions at the domestic level with respect to those entities and persons, including a range of activities from freezing of funds, criminalization, and other sanctions Canada refused to let Abdelrazik return to Canada is that he was named on the 1267 list Abdelrazik's inability to get off the list had consequences for Canadian domestic law no process at the international level, and no tribunal or judicial review or anything to hold the UN Security Council accountable for this listing process the Federal Court ordered the Canadian government to facilitate his return; it can't rule on the UN Security Council and its procedures, but it can and does exercise control over the Canadian executive the basic takeaway is that there is no administrative law at the UN and this is a big problem for

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him

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Chapter Six Independence, Impartiality, and Bias Sources of the Guarantee of an Independent and Impartial Tribunal: At common law, the principles of natural justice are encapsulated in two central ideas. The first is that a decision-maker should neither judge her own cause nor have any interest in the outcome of a case before her. This is the rule against bias. The second requires the decision-maker to hear and listen to both sides of the case before making a decision. Additionally, the guarantees of an independent and impartial administrative tribunal are also arguably assured by unwritten constitutional principles and the rule of law, as well as through the operation of the Charter and through quasi-constitutional enactments at the federal and provincial levels. When we speak of independence, we are referring to the tribunal's ability to decide matters free of inappropriate interference or influence. Potential sources of interference or influence include the executive branch of government, litigants, other tribunal members, and staff. Three objective conditions have been identified as necessary to guarantee independence: (1) security of tenure (2) financial security (3) administrative (or institutional) control With respect to security of tenure, the type of interference targeted is the ability of the government to remove a judge for such things as rendering decisions that do not meet the government's approval. This security of tenure is guaranteed for judges by the constitution, s. 99. Financial security aims to satisfy two goals. The first is a guarantee that although the government is responsible for the remuneration of judges, it will not alter their pay for arbitrary reasons such as discontent with decisions rendered. To accomplish this goal, judges are guaranteed a fixed salary under the constitution. The second goal is a promise that the amount judges are paid will be sufficient to keep them from seeking alternative means of supplementing their income. Institutional control deals with the manner in which the affairs of the court are administered from budgetary allocations for buildings and equipment to the assignment of cases. Administrative control is concerned with making sure that judges are not put in compromising situations where they may choose to make decisions in order to protect their own employment and interests, rather than for the sake of rendering decisions solely on the basis of their legal judgment. Another type of independence that has developed through the jurisprudence is adjudicative independence, which is concerned with independence from interference by other judges. Adjudicative independence is two-pronged. The independence of the adjudicator is also a means of ensuring that the decision-maker is not biased. When a decision-maker decides for improper purposes, the common law has held that his or her decision-making raises a reasonable apprehension of bias. The test for tribunal independence (reasonable apprehension of bias) is whether a reasonable, wellinformed person having thought the matter through would conclude that an administrative decisionmaker is sufficiently free of factors that could interfere with his or her ability to make impartial judgments. The grounds for the apprehension of bias must be substantial. A real likelihood or probability of bias should be demonstrated. Mere suspicion of bias is insufficient for the test to be met.

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The most common complaint in relation to a tribunal's multiplicity of functions stems from a perception by the user that a tribunal has the potential to act as both prosecutor and judge in the same matter. Generally, it has been held that overlapping functions are not a problem so long as sanctioned by statute enacted in conformity with the constitution and so long as the multifunctionality does not give rise to a reasonable apprehension of bias under a quasi-constitutional statute. Principles of Independence, Impartiality, and Bias no one shall be a judge in her own cause the principle of bias in the narrow sense this captures personal interests being bound up with the case, and deciding in accordance with those interests the subsidiary principle is that only the person who hears the case is allowed to decide it these principles are sometimes discussed as three completely distinct concepts, or sometimes in combinations with each other broadly speaking, impartiality is considered a value in decision-making (a virtue of good decision-making) this virtue is advanced in administrative law by the idea that those who make decisions about the interpretations and applications of the law should be independent from the people who made the rules in the first place independence, then, draws on an idea of the relationship between decision-makers and somebody external the external force could be the executive; could also be from the chair of a tribunal, or the rest of the membership, etc. Questions of bias are thought to arise more internally (as opposed to independence problems) and predispose the decision-maker or institution to a particular decision or direction the source of the bias may be an attitude (Baker), or direct pecuniary bias Independence: similar judicial reasoning patterns are present with this question as to many of the other administrative law issues although independence should not be applied with as much strictness and force as in the judicial realm, there must be flexibility and there must be some measure of independence retained standards for independence are drawn directly from the judicial examples: three indicators that the common law has developed about making an independent judiciary security of tenure, financial security, and institutional independence some of this independence is given constitutional entrenchment in the criminal context (such as s. 11(d)) but outside of the criminal realm, independence has mostly been articulated by the courts, in the form of these three indicators, which do not necessarily apply of the same force and extent in the administrative context security of tenure is problematic in the tribunal setting there isn't even security of institution with these creatures of statute; you also have good reasons not to have a static composition of decision-makers once you depart from lifetime tenure, what concerns arise? At-pleasure appointments would be particularly problematic, so dismissal for cause is in most instances an important substitute; another concern is very short-term appointments, so fixed terms and moderate terms are usually instituted; you might also be concerned about what the criteria are for appointment and who decides financial security some tribunals operate much like courts, so you might be concerned about paying them enough so that they can devote themselves to it as a full-time job; but if you're just a part-time member, or it is an honorific appointment, then are the concerns about financial

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security the same? Institutional independence most tribunals are actually directly connected to a line minister; the Chair of the board will often have to interact with the minister, despite the focus on independence there are bodies like ombudspersons and federal auditors who are accountable to Parliament and not to line ministries institutional v. attitudinal bias: easily distinguishable in theory, but in reality quite difficult to separate generally, it's true that in the common law, you don't want the same people who made the original decision engaged in review for objectivity but if the legislation permits it, then of course the legislation prevails the courts have responded by saying that in deciding about this issue, they will inquire as to whether the system could have been organized differently the indicia of independence for courts do not apply so strictly to administrative tribunals, particularly where the legislation specifically ousts them where there is a constitutionally protected right about what the tribunal does, that might be the one way to decently challenge its organization with respect to independence; but absent that possibility, you really don't get into an argument about tribunal independence under the Charter appointments are an area where external pressure can be brought to bear on agencies and tribunals the principle of independence doesn't get at the process by which members are appointed yet this becomes important to the question of independence, both institutionally and attitudinally

Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) (2001, SCC): When the Liquor Appeal Board held a hearing de novo and confirmed a suspension issued by a senior inspector with the Liquor Control and Licensing Branch, Ocean Port argued that the Liquor Appeal Board lacked sufficient independence to render a fair hearing. It submitted that the board's decision was therefore invalid, taking issue with the terms of the appointment of its members: at the pleasure of the Minister. At the SCC, Ocean Port also added the argument that, as an administrative tribunal exercising adjudicative functions (and empowered to impose penalties), the Liquor Appeal Board required the same degree of independence guaranteed to the courts, on the basis of an unwritten constitutional principle guaranteeing judicial independence. The Court disagreed, holding that the enshrined constitutional protection of judicial independence could not be translated to the context of administrative decision-making bodies. In essence, while judicial independence exists to protect the judiciary from interference by the executive branch of government, administrative tribunals are not separate from the executive. In this way, the Court asserted that the will of the legislature should prevail in determining how much independence any given tribunal should have, and also affirmed that there is no free-standing constitutional guarantee of tribunal independence. A variety of tribunal appointments may satisfy the requirement of security of tenure, so long as there are no constitutional standards at play and the terms of the appointment derive from constitutionally valid legislation. in Ocean Port, the Supreme Court considers whether a body that by statute lacks some of the features of judicial independence is therefore lacking sufficient independence to engage in the

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activity that it is supposed to be doing, which is appeals from liquor license infractions after this initial investigatory and sanctioning process, you are allowed to seek an appeal to the Liquor Appeal Board, which frequently holds a hearing de novo; in this case it upholds the decision of Inspector Jones there is something problematic about the relationship between Inspector Tait and Senior Inspector Jones (who adjudicates and orders the remedy), related to institutional independence, which the law is cognisant of LAB is completely at-pleasure appointments, no security of tenure If there was a statutory provision guaranteeing independence that was violated, that would have allowed Ocean Port to succeed, but none is present Check Karen notes to supplement

International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd. (1990, SCC): This is one of a trilogy of cases in which the Court set out the guidelines that tribunals should follow so that members can collaborate within their institution to promote consistency of outcome without compromising the adjudicative independence of any one decision-maker (or fairness to the parties). The Court held that the impugned full board meetings allowed the members of a large board with a heavy case load to benefit from the acquired expertise of the collective. As well, consultation was useful in achieving the board's mandate. The structure of the Labour Relations Board was conducive to tripartite exchanges in order to use its combined expertise to regulate labour relations in a prompt and final manner. Furthermore, the fact that a privative clause protects the board's decisions made it even more incumbent on the board to take measures to avoid conflicting results. Coherence is a valid goal to be fostered so that the outcome of disputes did not depend on the identity of the decision-maker. At the same time, fostering coherence should not compromise any panel member's capacity to decide in accordance with her conscience and opinions. Whether there is pressure on the decision-maker to decide against her own conscience and opinions is the relevant issue. Although respect for the judicial independence of Board members will impede total coherence in decision-making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under the circumstances. An institutionalized consultation process will not necessarily lead Board members to reach a consensus but it provides a forum where such a consensus can be reached freely as a result of thoughtful discussion on the issues at hand. The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks inherent in such a practice. The consultation process adopted by the Board formally recognizes the disadvantages inherent in full board meetings, namely that the judicial independence of the panel members may be fettered by such a practice and that the parties do not have the opportunity to respond to all the arguments raised at the meeting. However, the safeguards attached to this consultation process are sufficient to allay any fear of violations of the rules of natural justice provided as well that the parties be advised of any new evidence or grounds and given an opportunity to respond. one of the aspects of the Labour Relations Board, with respect to bias, is that it has adjudicators who explicitly represent each side law-clerk analogy in the judges canvassing other opinions is not a great one, as there is no

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pressure for judges to follow the opinions of their clerks case hinges on a belief about how it's possible to distinguish a deliberative process about evidence and facts and one about policy issues court says as long as they're not talking about factual findings, there's actually nothing wrong with influencing a decision (influence as distinct from pressure); so if a member can be persuaded that their legal position is wrong, that is a good thing there were circumstantial guarantees present that the meeting in question was not about pressure no attendance was taken, etc. subsequent case law in relation to this issue: Ells Don also involved a full-board meeting

Geza v. Canada (Minister of Citizenship and Immigration) (2005, FCA): Another tribunal practice for garnering consistency, developing policy, and addressing efficiency is the use of lead cases. In this case, the IRB instituted a procedure through which it attempted to select one of several similar refugee claims that could be used to create a full evidential record for all. Parties, lawyers, and members were carefully selected, and the Minister was invited to participate in the hearings. The purpose of this lead case initiative was to enable the board to have one case in which there were informed findings of fact and a relatively thorough analysis of the relevant legal issues. After having their claims rejected, the applicants challenged the jurisdiction of the Board to conduct such an exercise, and also alleged that a perception of bias existed on the part of the Board when the lead case idea was conceived and conducted, and that the motive was to increase the rejection rate of claims by Hungarian Roma by creating a well-reasoned and well-documented rejection precedent which would be promoted to be followed by other panels of the IRB. A lead case has two objectives: (1) it permits the IRB to establish a baseline of up-to-date and expert information on country conditions in respect of a country from which there is a sudden shift in the volume or type of refugee claim; and (2) it gives focus to the principal legal issues that arise from those facts. The Minister argued that the use of lead cases does not infringe on the independence of Board decision makers, because neither the evidence presented in lead cases nor the decisions reached in them are binding on subsequent panels, and because nothing in the concept of a lead case limits the rights of any party to call evidence or conduct their case in a manner appropriate to the requirements of that case. A tribunal's decision is liable to be set aside for bias if a reasonable person, who was reasonably informed of the facts and had thought the matter through in a practical manner, would conclude on a balance of probabilities that the decision maker was not impartial. A similar test determines whether a tribunal is independent. Three preliminary considerations may be added to this general proposition: (1) The standard of impartiality expected of a particular administrative decision-maker depends on context and is to be measured by reference to the factors identified in Baker. The independence of this Board, its adjudicative procedure and functions, and the fact that its decisions affect the Charter rights of claimants, indicate that the content of the duty of fairness owed by the Board, including the duty of impartiality, falls at the high end of the continuum of procedural fairness. (2) The Board is charged with a uniquely difficult mandate of administrative adjudication, and thus its procedure should not be confined in a model of due process that draws exclusively on the judicial paradigm and discourages innovation. Nevertheless, procedures designed to increase quality and consistency cannot be adopted at the expense of the duty of each panel to afford to the claimant before it a high degree of impartiality and independence.

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(3) The legal notion of bias connotes circumstances that give rise to a belief by a reasonable and informed observer that the decision-maker has been influenced by some extraneous or improper consideration. Although the Court cannot identify any single indicator that is on its own sufficient to establish bias, it concludes on the basis of the entire factual matrix of the case that a reasonable person, who had considered every aspect of the matter and had thought it through carefully, would think that the hearing panel was biased and was not acting independently when it rejected the appellants' claims for refugee status. Reasons for the reasonable person's conclusion include the suggestion that one of the panel's two members may have been predisposed towards denying the appellants' claims since he had played a leading role in an exercise that may seem to have been partly motivated by a desire by the CIC and the Board to produce an authoritative, if non-binding, legal and factual precedent, which would be used to reduce the percentage of positive decisions in claims for refugee status by Hungarian Roma. The decision in this case does not necessarily mean that the factual conclusions in the lead cases are unreliable, or that subsequent decisions which have relied to any extent on the findings in them are thereby vitiated. Independence / Impartiality of Decision-Makers: in Bathurst and in Geza, these administrative bodies typically don't have internal hierarchies, so these bodies undertake other types of processes to ensure consistency in decision-making after Geza, the IRB abandoned the lead case approach, but has since tried other methods of reaching internal consistency attitudinal bias is the more straight-forward bias issue prior involvement with one of the parties can in some cases raise a reasonable apprehension of bias (Mackenzie Pipeline) there may also be an appearance of antagonism towards one of the parties (Baker, Newfoundland Telephone) pecuniary interest is another aspect the court traditionally has been pretty strict about this in the sense that if there is some kind of financial interest in the outcome, it doesn't matter whether it is big or small In terms of the identity of a decision-maker, at one end you've got elected officials, at the other end appointed in terms of function of the tribunal or body, at one end you've got policy/legislative and the other adjudicative/fact-finding for stage of the process, at one end you've got investigative, at the other end a hearing for standard of reasonable apprehension of bias, at one end you've got generous, at the other strict Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992, SCC): With respect to determining a reasonable apprehension of bias, what is reasonable will greatly depend on the nature of the tribunal. For example, as Newfoundland Telephone illustrates, behaviour that would disqualify a member of an adjudicative tribunal may be perfectly acceptable in a member of a tribunal whose decisions are policy-based or whose functions approach the legislative end of the spectrum. Two issues are raised in this appeal: (1) to what extent is an administrative board member permitted to comment upon matters before the board? (2) what should the result be if a decision of a board is

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made in circumstances where there is found to be a reasonable apprehension of bias? The composition of administrative boards can, and often should, reflect all aspects of society, and 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. 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. While there are limits to the conduct of board members, and while members must base their decision on the evidence which is before them, 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, and may draw upon their relevant expertise and their background of knowledge and understanding in making decisions. During the investigative stage (with boards that come closer to the legislative end of the spectrum of administrative boards than to the adjudicative end), a wide licence must be given to board members to make public comment, and 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. Should a board member 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. Even at the investigatory stage statements manifesting a closed mind would constitute a basis for raising an issue of apprehended bias. Once the matter reaches the hearing stage a greater degree of discretion is required of a member, and thus by extension, once the order directing the holding of the hearing was given, the parties were entitled to procedural fairness. At that stage something more could and should be expected of the conduct of board members. At the investigative stage, the closed mind test was applicable. Once matters proceed to a hearing, however, a higher standard must be applied, and procedural fairness then requires the board members to conduct themselves so that there could be no reasonable apprehension of bias. The application of that test must be flexible. With respect to remedy, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. The damage created by apprehension of bias cannot be remedied, and thus the hearing, as well as any subsequent order resulting from it, is void. Here were dealing with internal disposition, not external influences The spectrum is very important the more legislative the tribunal/office is, the less unbiased it needs to be

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Chapter Seven The Charter and Administrative Law In the realm of procedure, the courts rely on the common law doctrine of procedural fairness to interpret the principles of fundamental justice set out in s. 7 of the Charter. However, when courts review the substance rather than the procedural aspects of a decision that engages a Charter right, they tend to review the decision using the analytical framework developed in Oakes for testing the validity of legislation. Procedural Fairness and the Principles of Fundamental Justice: To access procedural safeguards in the context of s. 7, complainants must first cross the threshold of establishing that their life, liberty, or security interests are impaired by the relevant decision. If a s. 7 interest is engaged, procedural fairness comes into play by means of the principles of fundamental justice, and legislation must conform to them in order to be lawful. under the Charter, the courts do not consider s. 11(d) to apply in the administrative realm procedural fairness under the common law vs. procedural fairness under the Charter when and why would one challenge a decision as a breach of s. 7, as opposed to under the common law? One reason for going the Charter route is a difference in remedies; most importantly, the one big thing you can get under the Charter is the ability to invalidate legislation, which you can't get through the common law route there are also strategic considerations, in terms of lines of argument related to the Charter versus staying in the usual realm of administrative law (interpreting statutes against the backdrop of the common law) the scope of administrative law and judicial review is not the same as the scope of the Charter judicial review is available in response to the domain labelled as public what is public and what is covered by s. 32 of the Charter are not the same s. 32 is in fact a narrower scope McKinnon (Charter case) is all about whether the Charter applies to universities, hospitals, etc, yet there's no question you can get judicial review with respect to these kinds of entities and bodies so there may be instances where you can only use administrative law to achieve something the main source of procedural protection for administrative action under the Charter is s. 7 (ss. 8-14 are predominantly, if not exclusively, available under the realm of the criminal law) to get an entitlement to procedural fairness under the common law, there is the Knight threshold, encompassing a whole range of factors and considerations the threshold for s. 7 is demonstrating that your life, liberty, or security of the person is infringed so property rights, which are definitely not covered by s. 7, while losing your property rights or having your property interests affected are certainly within the province of procedural fairness to attract judicial review

Singh v. Minister of Employment and Immigration (1985, SCC): This case establishes that the principles of fundamental justice include procedural fairness; it also recognizes that s. 7 applies to non-citizens, and it caused the government to overhaul the statutory scheme and establish the Immigration and Refugee Board to ensure that all refugee claimants receive a fair hearing in accordance with the principles of fundamental justice. While these refugee claimants had no opportunity to present their cases in oral hearings before either the decision-maker at first instance or the IAB on appeal, the statutory scheme at the time provided for the possibility of an oral hearing, but only before the IAB on appeal, and only if the IAB concluded on

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the basis of the asylum seeker's written submissions that there were reasonable grounds to believe that the claimant could make a successful claim at an oral hearing. Everyone in s. 7 includes every human being who is physically present in Canada, and the security interest must encompass freedom from the threat of physical punishment as well as freedom from such punishment itself. Section 7 thus applies to Singh, and while he does not have a right to remain in Canada per se, he does have a right to have his claim determined in accordance with the principles of fundamental justice. The interests protected under s. 7 are of such importance that generally an oral hearing will be required when those interests are engaged. Further, where a serious issue of credibility is involved, fundamental justice requires that the claimant be entitled to prior discovery of the Minister's case and an oral hearing. The procedures cannot be saved under s. 1 of the Charter, because adopting administrative procedures which ignore the principles of fundamental justice merely for reasons of cost and efficiency is not sufficiently compelling to justify the limitation of rights. while labour law cases were formerly at the frontier of administrative law, in recent decades it seems to be immigration law there was an argument in this case that the refugee claimants did not have access to s. 7 because they did not fit the definition of everyone (Wilson finds that everyone includes those who are physically present in Canada and therefore subject to Canadian law so it remains somewhat open as to whether people who haven't made it to the territory can claim Charter protection) also an argument that they won't be captured by security of the person, but again Wilson gets past that in terms of well-founded fear of persecution, we can't know ex ante whether the process will actually lead to this result, so we can only say that the person who faces this risk is entitled to a fair process to determine the extent of the risk then we move into the process itself, and the contents of procedural fairness and what Wilson takes to be principles of fundamental justice (which Wilson largely finds to be co-extensive, though not identical obviously, with procedural fairness) Wilson doesn't go so far as saying that s. 7 always requires an oral hearing rather, you must always have a meaningful opportunity to respond (which may in the circumstances require an oral hearing, assuming there is also full disclosure) however, Wilson makes the point that where the issue turns on credibility, it is hard to imagine how anything less than an oral hearing could satisfy the requirement for procedural fairness, so in most cases the oral hearing will be necessary this was pivotal in the formation of the IRB and the reformation of the process so that in every refugee claim there is an entitlement to an oral hearing in these situations the s. 1 argument in Singh is dealt with very summarily Wilson has little time for the Minister's argument on this point Wilson is quite unsympathetic to the idea that administrative exigencies could ever justify imposing on a person's fundamental justice or procedural fairness however, issues of backlog and bureaucratic burden are really not insignificant considerations, and that is a significant factor for why there are ideas today about reforming the system including the concerns of refugee claimants who have felt hard done by because of the serious backlogs Singh led to a major overhaul of the refugee status determination process. The Refugee Status Advisory Committee was disbanded and replaced with the Immigration Refugee Board. The Board provides oral hearings to all refugee claimants and makes refugee status determinations

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itself, independently of the Minister. Suresh v. Canada (Minister of Citizenship and Immigration) (2002, SCC): Suresh was a Convention refugee detained on a security certificate for alleged links with the LTTE. The Federal Court upheld the certificate and, in the subsequent deportation hearing, the adjudicator found Suresh to be inadmissible as a refugee on grounds of membership in a terrorist organization. Pursuant to s. 53(1)(b) of the Immigration Act in force at the time, the Minister proceeded to issue an opinion that Suresh constituted a danger to national security and should be deported, notwithstanding an acknowledgement that Suresh would face a risk of torture upon his return to Sri Lanka. Suresh challenged the Minister's decision on constitutional and administrative law grounds. The SCC held that barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter, but ultimately the case was decided in Suresh's favour on the basis that the Minister had breached the s. 7 principles of fundamental justice by failing to provide Suresh with adequate procedural safeguards and reasons for the decision. Procedural Fairness Element: Unlike the statutory provisions under scrutiny in Singh, s. 53(1)(b) of the Immigration Act did not require the Minister to adopt or follow any particular procedure. The Minister notified Suresh that she intended to consider issuing a danger opinion against him and gave him the opportunity to make submissions to her. Those submissions were considered by an immigration officer who weighed the importance of Canada's commitment to fight terrorism against the risk of torture to Suresh. The officer recommended in a memorandum to the Minister that she issue an opinion under s. 53(1)(b) that Suresh constitutes a danger to Canada. Suresh did not have the opportunity to see or respond to the officer's memorandum, which the Court described as more like a prosecutor's brief than a statement of reasons for a decision. The Court applied the Baker framework to assess the adequacy of procedure afforded to Suresh so basically, principles of fundamental justice become procedural fairness in this Charter context. The Duty to Disclose Information and the Right to Reply Element: On the five Baker criteria, the Court concluded that Suresh did not have a right to an oral hearing, but he did have the right to disclosure of the materials on which the Minister would base her decision, including the memorandum from the immigration officer who initially reviewed Suresh's case under s. 53(1)(b). Suresh also had the right to reply to the claims set out in the memorandum, including claims relevant to the threat he posed to Canada and the risk of torture he would have if deported. The Minister then had an obligation to consider Suresh's submissions as well as those of her staff. Suresh's entitlement to disclosure was subject to privilege or other valid reasons for reduced disclosure, such as safeguarding confidential public security documents. The Court held that the Minister herself (and not a delegated officer) must provide responsive reasons that demonstrate both that the individual is a danger to Canada and that there are no substantial grounds to believe he would be subject to torture. Applying the five Baker criteria: (1) The nature of the decision somewhat resembles judicial proceedings, and is of a serious nature, it is also discretionary for the Minister, so this factor (the closeness of the administrative process to the judicial process) militates neither in favour of particularly strong, nor particularly weak, procedural safeguards. (2) The nature of the statutory scheme suggests the need for strong procedural safeguards, because the provision sets out no procedures, particularly for a right of appeal.

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(3) Deportation from Canada engages serious personal, financial, and emotional consequences, and thus the importance of the right affected militates in favour of heightened procedural protections. Further, because Suresh may be subjected to torture, this factor requires even more substantial protections. (4) Canada's international commitment to the CAT also suggests that Suresh had some further legitimate expectations which enhance the need for procedural safeguards. (in this case and in Baker, the court is at least willing to consider international law in legitimate expectations) (5) The Minister must be allowed considerable discretion in evaluating future risk and security concerns, and is free under the terms of the statute to choose whatever procedures she wishes in making this decision, so the choice of procedures suggests a degree of deference to the Minister; however, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees. Although these factors necessitating procedural protections required by s. 7 do not amount to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process, they do require the following: (1) A person facing deportation to torture must be informed of the case to be met. (2) Fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. (3) Written submissions must be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. (4) The refugee must also be given an opportunity to challenge the information of the Minister where issues arise as to its validity. (5) The Minister must provide written reasons for her decision, and these reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of the declaration will be subjected to torture, execution, or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why the Minister believes the individual to be a danger to the security of Canada as required by the Act. Standard of Review: While the Charter issue whether deportation to torture violates s. 7 was reviewable on a standard of correctness, the determinations of whether a refugee was also a threat to national security (thereby opening the door to deportation), and whether the refugee actually faced a substantial risk of torture if removed, were subject to maximum curial deference. Discretion and the Minister's (Not the Reviewing Court's) Authority to Weigh Relevant Considerations: Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors. Suresh builds on this idea of the elements of procedural fairness being part of fundamental justice under s. 7 Suresh was himself found to be a Convention refugee (well-founded fear of persecution) independent of the judge considering whether or not to uphold the security certificate, there is a separate ongoing process called the danger opinion - whether the risk of danger posed by this person remaining in Canada would outweigh the risk of a well-founded fear of torture the former (reasonableness of security certificate by Federal Court judge) is in issue in Charkaoui, the latter in issue in Suresh in the conclusion of the danger opinion, they figure he's high profile enough that he probably

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won't be tortured anymore anyway, and even if he is tortured, the risk that he poses by remaining here exceeds the risk posed by going back to torture Supreme Court considers, among other things, whether it is ever consistent with s. 7 to send people back to face a substantial risk of torture, and actually finds that in some circumstances it could be possible, in principle, as long as it was done by a fair process the second aspect considered by the SCC is whether Suresh gets this fair process the statute, interestingly, is silent about the process for the danger opinion the court turns to the five criteria of the Baker test (an aspect of the common law of procedural fairness) to apply it to procedural fairness considerations under the Charter the nature of the decision: it is serious, but it is a decision to which discretion is attached; so doesn't really militate for or against procedural safeguards the nature of the statutory scheme: court says it suggests the need for strong procedural safeguards, although of course the legislation is silent on the specific procedure there is no internal appeal, so that militates in favour of stronger safeguards importance of the right affected: very important obviously deportation to torture legitimate expectations is not really given mention, though the court does make mention of the Convention against Torture so this should militate in favour of procedures to insure that there are at least in fact substantial grounds final factor choice of procedures made by the agency: here the court seems to suggest that maybe we should defer to the Minister's choice to have no procedures seems overall like the court is most moved by a calculus of the interests at stake here torture and persecution so we receive a list of procedures that ought to ensue, flowing from the idea that the person affected must know the case to be met and have an opportunity to respond so you will need notice, disclosure of evidence, opportunity for a hearing (not necessarily oral), opportunity for response, etc. Note: because we are post-Baker, not only are the five criteria being woven into fundamental justice, but the requirement for reasons is also being factored in note also that the court says that with all of these elaborate procedural protections, you don't actually have to provide them in every case; there must be a threshold finding of well-founded fear of torture in order for these to all kick in so the initial burden is on the claimant

Charter: when do administrative bodies have the authority to render determinations of constitutionality? The Charter's scope is not identical to the scope of judicial review in administrative law Charter is concerned with s. 32, while administrative law is concerned with the domain of the public administrative law looks at things like serious interests, non-legislative, statutory scheme, etc.; while the Charter looks at s. 7 life, liberty, and security of the person threshold for administrative law Knight test the remedies are also different the key difference being that you can't get legislation struck Charkaoui v. Canada (Citizenship and Immigration) (2007, SCC): Canadian security agencies alleged that Charkaoui and others were involved with terrorist organizations. Charkaoui is a permanent resident. The Minister of Citizenship and Immigration and the Minister PSEP issued security certificates against these men pursuant to s. 77 of the IRPA, leading to their detention pending deportation.

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Under ss. 78-84 of the IRPA, the detention and the reasonableness of security certificates are subject to review by the Federal Court. During the review process, ex parte and in camera hearings are held at the request of the Crown if the judge believes that disclosure of some or all of the evidence on which the certificate is based could undermine national security. The judge then provides to the named person a summary of the evidence, but not its sources or any other details that might compromise national security. The judge may receive and rely on evidence withheld from the named person that would be inadmissible in a court of law, such as uncorroborated hearsay evidence provided by foreign security agencies known to use torture. If the judge determines that the certificate is reasonable, there is no appeal or opportunity for further judicial review. The Court found that these proceedings doubly engaged s. 7 because persons subject to security certificates face detention pending deportation (the liberty interest), and because the person's removal may be to a place where his or her life or freedom would be threatened (the security interest). The Court held that the review procedure violated the principles of fundamental justice because it denied the named person a fair hearing. A fair hearing would require a judge to decide the case on the basis of all the relevant facts and law. The principle of knowing the case to meet when liberty is in jeopardy has not merely been limited by the provision allowing undisclosed material to be presented; it has been effectively gutted. To remedy the procedural shortcomings of the statutory scheme, the Court suggests that an amicus curiae (security-cleared special advocate) could be appointed to represent the named person during in camera proceedings. The Crown's failure to incorporate such a measure, or to otherwise correct the procedural deficiencies, leads to the conclusion that the violation of s. 7 could not be saved under s. 1 because the infringement did not minimally impair the right at stake. For the finding that the IRPA's procedure for judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1, the Court declares the procedure to be inconsistent with the Charter, and hence of no force or effect, but suspends this declaration for one year from the date of this judgment in order to give Parliament time to amend the law. security certificate puts person in detention until such time as security certificate is reviewed by a federal court judge and deemed to be reasonable or not ss. 8-14 of the Charter dont apply because its a civil detention because its imposed by an administrative regime (so thats why criminal case law does not help) danger opinion was at stake in Suresh, while this is about the federal court reasonableness of the security certificate what aspects of this process violate fundamental justice? Summary is incomplete, out of context, partial, difficult to respond to national security / confidentiality might be a reason for doing something differently, but is not a reason for denying fundamental justice under s. 7; potentially you could make this argument at s. 1, but not at s. 7 this is an important distinction the court makes what does the demise of the security certificate regime mean? Canada is not left with no options the criminal justice system has provisions for terrorism (Toronto 18)

Blencoe v. British Columbia (Human Rights Commission) (2000, SCC): An undue delay in the resolution of a human rights complaint could infringe the security interest protected under s. 7. Specifically, it is possible that an inordinate and undue delay could result in stigmatization and an impairment of the psychological integrity of the alleged wrongdoer, but the

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threshold to cross is set very high. in the end, under procedural fairness, excessive delay may in fact amount to a breach of procedural fairness and lead to a remedy Blencoe casts that in terms of a breach of fundamental justice, but the majority casts it as a Charter issue and the dissent as an administrative law issue it's not clear why the majority went straight to the Charter and whether if they had stuck with the common law they would have analyzed it in the same way it is also a rule of law issue within the Charter so use Blencoe if there is a real rule of law violation within the fact pattern but does not arise from the statutory regime mandamus might be a remedy, then, for unreasonable delay thats what the dissent says the remedy could be majority goes for a s. 24(1) remedy (could this include mandamus?)

Review of Administrative Decisions under the Charter: When the focus of review is the decision itself (i.e. Substantive) rather than the procedures leading to it, and a discrete Charter right is clearly at stake, the majority position of the Supreme Court is to review the decision using (almost) exclusively the analytical framework developed under the Charter to review legislation (the two-step: Charter violation then s. 1 reasonable limits test). Three possible frameworks of review for decisions alleged to impair Charter rights: (1) The Orthodox Approach this is the majority position referred to above, according to which reviewing courts use the two-step Charter framework to determine the legality of an impugned decision. Administrative law is still relevant to review questions of jurisdiction, facts, and the application of law to facts, but whenever a Charter right is infringed and competing values are in play, the critical analysis takes place under s. 1. (2) The Mixed Approach under this framework, judges first review the legality of a decision using the principles of administrative law, including inquiry into whether the decision is ultra vires a grant of discretion or based on an unreasonable interpretation of a statutory provision. If, and only if, the decision is lawful under administrative law, it is then tested within the two-step Charter framework. (3) The Administrative Law Approach this approach eschews review under the Charter and limits scrutiny to exclusively that which is available as a matter of administrative law. Nova Scotia (Workers' Compensation Board) v. Martin; ... v. Laseur (2003, SCC): The Workers' Compensation Act and its regulations excluded chronic pain sufferers from receiving benefits under the regular workers' compensation system and provided, in lieu of benefits usually available to injured workers, a four-week functional restoration program beyond which no further benefits were available. As a result of the statutory exclusion, the WCB denied benefits to these two workers suffering chronic pain. The workers appealed the Board's decision to the Workers' Compensation Appeals Tribunal. They alleged that the legislation infringed s. 15(1) of the Charter by denying them equality under the law and discriminating against them on the basis of their disabilities. The Appeals Tribunal held that it had jurisdiction to hear the Charter argument, and concluded that the statutory exclusion violated the Charter as the complainants alleged. The Appeals Tribunal then went on to adjudicate the claims without giving effect to the infringing legislation. The Board challenged the Appeals Tribunal's jurisdiction to hear the Charter argument. The Court rejected the Board's challenge, finding that administrative tribunals which have jurisdiction

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whether explicit or implied to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. The Appeals Tribunal had such jurisdiction. However, its decision on the constitutionality of the challenged provisions must be reviewed on a correctness standard. Martin: if the administrative body has the authority to determine questions of law, law will include the Charter this authority may be express or implicit (more difficult) the test articulated in Martin is inquire first into whether such authority exists (expressly or implicitly) and then inquire into the legislation to see if there is anything which rebuts it a provincial tribunal may also be challenged on federalism grounds the Courts have held that administrative bodies are not courts of competent jurisdiction under s. 24(1) of the Charter to issue a remedy however, s. 52 declares all laws contrary to the Charter to be invalid and of no force and effect therefore, an administrative body that is charged with applying the law shall not enforce a law that is contrary to the Charter but this is the extent of the remedial possibilities of a tribunal on a successful Charter challenge notionally, then, the competence of the tribunal is not to strike down the legislation, but only to refuse to apply it in a specific case so this is the positive aspect of why tribunals can do this Charter consideration but a point of contention remains: administrative tribunals who make these determinations, even though apparently considered expert and necessary enough to do so, are subject to no deference from the court (it is a correctness standard) Martin is important for the way it expands the understanding of what it means for an agency or tribunal to have authority to consider questions of law. The inquiry into legislative intent on this matter does not rely on whether the legislature intended the tribunal to apply the Charter. The question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. The inquiry must focus on whether the tribunal has the power to decide questions of law arising from the challenged provision. Although these powers will typically be found to reside in tribunals with adjudicative functions, the presence or absence of adjudicative authority is not necessarily determinative. If the legislation does not expressly grant jurisdiction to consider questions of law, the jurisdiction may still be present implicitly and inferred from a series of factors: the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. The guiding principle that informs the application of these factors is whether the legislature intended the tribunal to have jurisdiction to decide questions of law. The presence of such intent, however, does not end the inquiry; it merely establishes a rebuttable presumption that the agency has jurisdiction to apply the Charter. The presumption can be rebutted by pointing to an explicit or implied statutory withdrawal of authority to determine constitutional questions.

Interaction of the Tribunal in Question with other Elements of the Administrative System: this question doesn't come up so often with initial questions of jurisdiction to consider questions of law, but at a later stage with factors like statutory mandate and its adjudicatory nature or lack thereof

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in martin there was a board, then above that an appeals tribunal, then above that a board of directors that could review decisions. the Board of directors is not an adjudicative body, more an executive policy making. so this goes to the rebuttal argument. the BoD is there to ensure consistency. they are empowered to adopt a policy, not to interfere with an appeal and the resolution of that case. perhaps it would have been different if the BoD was a full appeals hearing, then it might have been a successful arg to say that the BoD couldnt have been expected by the legislature to decide charter issues since they have no special expertise etc. the Board of Directors is not an adjudicative body, it is a more policy-oriented body; under the legislation, the Chair can direct certain issues to be dealt with by the Board of Directors the Court says, regarding the legislative intent, that it simply empowers the B of D to adopt a policy; it doesn't allow it specifically to interfere with an appeal the court enumerates four factors in implied authority to determine questions of law these questions require you to look carefully at the provisions of the statutory scheme and think about what the policy issues are around the decision you reach

Tranchemontagne v. Ontario (Director, Disability Support Program) (2006, SCC): The Court here reaffirms that legislatures can preclude tribunals from considering Charter questions through clear legislation; but in this case, the bar was specific to the relevant issue. The majority holds that such a statutory bar would not be read to deprive a tribunal of authority to apply the provincial Human Rights Code to its enabling statute. The issue in the case is whether the Social Benefits Tribunal, a provincially created statutory tribunal, is obligated to follow provincial human rights legislation in rendering its decisions. When the claimants argued that their denial of support for alcoholism by s. 5(2) of the ODSPA constituted discrimination and was therefore inapplicable because of the primacy of the Human Rights Code over other legislation, the Social Benefits Tribunal held that it did not have the jurisdiction to consider the applicability of s. 5(2) pursuant to the Code. The appellants' appeals were therefore dismissed without the benefit of a ruling that their treatment was not discriminatory. The Court finds that the Code is fundamental law. The Ontario legislature affirmed the primacy of the Code in the law itself, as applicable both to private citizens and public bodies; it can be applied by any administrative body. The laudatory goals of the Code are not well served by reading in limitations to its application. Statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly in front of them; thus, the SBT actually has a responsibility to apply the Code in order to render a decision that reflects the whole law of the province. Because it is clear that the SBT is empowered to decide questions of law, it may presumptively go beyond the bounds of its enabling statute and decide issues of common law or statutory interpretation that arise in the course of a case properly before it, subject to judicial review on the appropriate standard. (This may be contrasted with the power to subject a statutory provision to Charter scrutiny, which as Martin demonstrates will only be found where the tribunal has jurisdiction to decide questions of law relating to that specific provision.) Thus, where a specific provision is being declared invalid, it is necessary to ensure that the tribunal is empowered to scrutinize it specifically; but where a tribunal is merely being to apply or consider external sources of law, it can look beyond its enabling statute. The Code is fundamental, quasi-constitutional law, and must therefore be interpreted in a liberal and purposive, expansive manner, as well as offered accessible application. As a result of the Code's primacy clause, where provisions of the Code conflict with provisions in another provincial law, it is the

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provisions of the Code that are to apply. Given that the SBT has jurisdiction to consider the code (even though the legislature prohibited the SBT from considering the constitutional validity of enactments, or the vires of regulations), the question then arises whether the SBT should have declined to exercise its jurisdiction in the present case. The legislature did not grant the SBT a power to be able to decline to hear the issue properly in front of it, and therefore it cannot avoid considering the Code issues in these hearings.

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Chapter Eight Standard of Review A court that is called upon to review the interpretation or application of a statutory provision by an administrative decision-maker will first apply a standard of review analysis to assess who, as between the court and the original decision-maker, is better placed to make the determination at issue. The result of this test tells the court how much deference to accord the original decision. Deference is quantified through the standard of review applied by the court to the impugned decision. Less deference means stricter review. An issue meriting little or no deference will be judged in terms of its correctness. Issues attracting more or much deference will be quashed if they are simply unreasonable (a spectrum). Under the contemporary doctrine of standard of review, courts never completely relinquish their entitlement to have the last word, and therefore insist that no decision can be completely immunized from judicial scrutiny. Privative clauses vary in wording, but the usual elements include a grant of exclusive jurisdiction over the subject matter, a declaration of finality with respect to the outcome, and a prohibition on any court proceedings to set the outcome aside. A privative clauses effect can be outweighed by the courts assessment of expertise, but the existence of one cannot outweigh expertise. Finality clauses typically declare only that the outcome be final and binding on all parties. These incline toward curial deference, but not as strongly as a privative clause. CUPE, Local 963 v. New Brunswick Liquor Corp. (1979, SCC): The Public Service Staff Relations Board of New Brunswick, a labour relations tribunal, had to interpret a poorly worded provision in its enabling statute concerning the meaning of the word employee. The legislation stated that the employer could not replace striking employees with other employees; moreover, other parts of the statute excluded management from the definition of employee. The representative union complained to the Board that the employer was replacing striking employees with management personnel, contrary to the statute. The Board examined the enabling statute, provided an interpretation of the ambiguous provision, and ordered the employer not to use management to replace striking workers. The Board's decisions were protected by a privative clause. On review, the Supreme Court held that deference was owed to the tribunal based on its expertise, the privative clause, and the reasonableness of its determination. In cases of statutory ambiguity, and where there are multiple reasonable interpretations, a reviewing court should defer to the interpretation of the expert tribunal. This means that privative clauses are a signal from the legislature that deference and respect are owed to the administrative decision-maker to make decisions within its area of jurisdiction; however, it is important to note that jurisdiction is used here in an expansive sense, and also that courts should not brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so. The interpretation of the statutory provision being within the competence of the tribunal, a court should only interfere (by labelling as jurisdictional error) in an interpretation of the provision that is so patently unreasonable that its construction cannot be rationally supported by the relevant legislation. This decision conveys a spirit of curial deference, a recognition that administrative decision-makers are not merely inferior tribunals, but specialized bodies that possess a legislative mandate to apply their expertise and experience to matters that they may be better suited to address than the ordinary court. CUPE espouses a strict divide between jurisdictional questions going to the limits of administrative decision-makers statutory mandates (in respect of which they must be correct) and questions within

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jurisdiction (in respect of which they command deference). Since CUPE, the presence of a privative clause has been considered less crucial, and the jurisdictional question has been supplanted by expertise as the key determinant of standard of review. The following features of the statutory framework point toward greater deference (from Pezim): subject area (e.g. securities regulation) is elaborate and complex commission is granted public interest mandate, plus broad discretion to determine what is in the public interest commission has broad powers to administer the statute statutory definitions are only meaningful within the factual regulatory context agency played a policy development role in addition to adjudicative functions interpretation of the statutory provision in question goes to the heart of the regulatory expertise and mandate of the Commission Canada (Director of Investigation and Research) v. Southam Inc. (1997, SCC): The Competition Tribunal found that Southams acquisition of various newspapers within a given advertising market substantially lessened competition. By way of remedy, the Tribunal gave Southam the option of divesting itself of one of two community papers. The statute provided for an appeal directly to the Federal Court of Appeal. Two aspects of the tribunals decision were the subject of appeal: the dimensions of the relevant market within which to assess impact on competition and the remedy of divestment. The Supreme Court outlined a tripartite model for standard of review analysis, where the standard of reasonableness simpliciter is inserted between the standards of correctness and patent unreasonableness. With respect to the reasonableness standard, despite the conflicting signals elicited by the pragmatic and functional analysis in this case (particularly, featuring both a statutory right of appeal and an expert tribunal), what is dictated is a standard more deferential than correctness but less deferential than not patently unreasonable. This middle ground describes an unreasonable decision as one that in the main, is not supported by any reasons that can stand up to a somewhat probing examination. While a patently unreasonable decision will be apparent on the face of the tribunals reasons, apprehension of an unreasonable defect may take some significant searching or testing. This form of review thus focuses on the quality of the reasons for a given administrative action or decision. The court reviewing a decision on a reasonableness standard must first look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or the logical process by which conclusions are sought to be drawn from it. In assessing the Tribunals decision, the Court emphasizes the complexity of the statutory scheme (more economic than strictly legal) as well as the specific composition of the tribunal, and infers from the preponderance of lay members that non-legal acumen is more important than legal expertise. On the other hand, the statute requires that the tribunal include judges, and that judicial members have exclusive jurisdiction over questions of law, which indicates to the Court Parliaments opinion that questions of competition law are not altogether beyond the ken of judges. Upon reviewing the tribunals reasons, the Court concludes that the tribunal had not ignored the evidence in question, but that the dispute really concerned the weight attributed to certain evidence. This was not a question of law, but rather a question of mixed law and fact, because it involved the

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application of law to facts. The remedial issue was similarly a mixed question of fact and law. Some of the factors relevant to the standard of review point toward deference, and some away from it: the fact that the dispute is over a mixed question of law and fact, the fact that the purpose of the statute is broadly economic, and the fact that the application of principles of competition law falls squarely within the area of the Tribunals expertise all counsel deference the existence of an unfettered statutory right of appeal from decisions of the tribunal, and the presence of judges on the tribunal, both counsel a more exacting form of review the expertise of the tribunal is the most important consideration Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998, SCC): Pushpanathan had made a refugee claim in Canada. Before his claim was heard, he was convicted in Canada of the offence of conspiracy to traffic in a narcotic. He was subsequently excluded from refugee protection under article 1F(c) of the UN Convention Relating to the Status of Refugees (incorporated by a provision of the Immigration Act) on the basis of his conviction. This article excludes from refugee status those persons guilty of acts contrary to the purposes and principles of the United Nations, and the issue in this case concerned whether a criminal conviction for drug trafficking in the country of asylum constituted such an act. A distinctive feature of the Immigration Act was the mechanism for judicial review. The statute contained no privative clause or right of appeal. Instead, judicial review could only commence with leave of the Federal Court, and no reasons were required where leave was denied. If leave was granted and the case heard, the losing party could only appeal to the FCA if the trial judge certified a serious question of general importance. The Court organizes the factors relevant to standard of review into four categories (which continue to be relied upon): (1) the presence of a privative clause (weighing in favour of curial deference) (2) the expertise of the tribunal (weighing in favour of curial deference) (3) the purpose of the statute as a whole and of the provision in particular, and (4) the nature of the problem (question of law, of fact, or of mixed law and fact) Although the Court identifies these four separate factors, arguably there are only two issues to consider in the calculation of deference: (1) the legislators direct or indirect pronouncement about judicial supervision (privative clause, finality clause, common-law judicial review, statutory judicial review, appeal), and (2) the reviewing courts assessment of the agencys relative expertise (which the inquiries into statutory purpose and nature of the problem help to clarify). The Court admits that purpose and expertise often overlap, and that the basis for less curial deference on general questions of law than on questions of fact relates to the relative expertise of courts versus agencies. Ultimately, the entire test is rationalized as an exercise in discerning legislative intent: did the legislator intend that the court defer to the agency with respect to the disputed issue? The Court identifies three steps in evaluating expertise: (1) the court must characterize the expertise of the tribunal in question; (2) it must consider its own expertise relative to that of the tribunal; and (3) it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise. Where the tribunal possesses broad relative expertise that it brings to bear in some degree on the

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interpretation of highly general questions, the court may show considerable deference, despite the generality of the issue. When describing the broad expertise of an agency, the court attends to the agencys composition and specialized knowledge in comparison to a court. Evidence of distinctive expertise may come from statutory criteria for appointment (for example, qualifications, length of term, and security of tenure), a policy-making function, or a non-judicial means of implementing the Act. In evaluating statutory purpose to determine the standard of review, where the statute and/or provision can be described as polycentric, meaning that it engages a balancing of multiple interests, constituencies, and factors, contains a significant policy element, and articulates the legal standards in vague or open-textured language, more judicial restraint is warranted. Disputes that more closely resemble the adversarial model justify less curial deference. With respect to examining the nature of the problem to determine the standard of review, without an implied or express legislative intention to the contrary, legislatures should be assumed to have left highly generalized propositions of law to courts. Judicial Review on Grounds of Substantive Error: The questions at stake in Martin and in Tranchemontagne were ones of substance, rather than merely procedure We are talking in this area about errors of law (misinterpretations of the legal rule), errors of fact (which will constitute errors of law when particularly egregious), abuse of discretion (harkening back to Baker) Concerns over substantive review of emanations of the legislature bred the emergence of privative clauses The standard of review expresses this tension which has arisen, about on the one hand the idea of Parliamentary supremacy, and on the other hand the rule of law that says no power goes unchecked and it is the responsibility of the courts to ensure that power is exercised responsibly Leaving aside the privative clause, the way in which judicial review has tried to mediate this has been to point to courts rule of law function and boundedness by the constraints of the legislature o So judges tend to think that judicial review can be done in a way that mediates these tensions Then, however, the privative clause arises and essentially tilts the formerly comfortable balance The idea that power is always constrained can be expressed in terms of jurisdiction (mandate the scope of the power that you are granted) The privative clause forced courts to think about and express jurisdiction in new ways If you purport to make a distinction outside of your jurisdictional boundary, it doesnt even count as a decision, so the court is entitled to intervene; so, according to the courts, the privative clause only protects what falls within the jurisdiction o This is an initial way of limiting the power of privative clauses The court says that the line-drawing exercise is for the courts to decide Where a tribunal might have looked like it was exercising a power that it had, the court can reinterpret and carve up actions in order to shape ways in and around privative clauses CUPE is a landmark case for signalling a re-evaluation of the courts actions regarding privative clauses; an exercise in judicial modesty o Maybe there isnt just one correct answer There is bad drafting in s. 102(3) of the Public Service Labour Relations Act, which leaves at

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least two interpretations The court asks whether what is at stake is a jurisdictional question, because if it is not, the court should defer It reasons that the job has been given to labour tribunals for a reason, and that reason is special expertise; moreover, not all questions have one uniquely correct answer it permits of at least two meanings and possibly more The privative clause then adds additional force to the consideration of these factors A decision made beyond the jurisdiction is patently unreasonable, which is implicitly contrasted with the standard of correctness Patent unreasonableness is the language of deference; correctness is the language of close scrutiny Southam then leads to the proposition that a privative clause isnt actually necessary for the courts to defer; and then Pushpanathan instructs when and why a court ought to defer (Dunsmuir then changes this again) In Pushpanathan the court says that when deciding what the standard of review is, there are four factors to be considered: o (1) if there is a privative clause, that pushes toward deference; if not, less deference o (2) who is more expert, the tribunal or the court? This is the factor of specialized knowledge o (3) the nature of the problem of law or of fact? (this is actually closely related to a determination of expertise because courts typically think of themselves as having more expertise in the questions of law) o (4) the purpose of the act as a whole and the provisions in particular Dunsmuir brings us back to two standards of review, and provides a test at one point for determining these two, but at other points goes back to the Pushpanathan test In Dunsmuir at para. 48, it looks like a fairly strict and comprehensible rule for how to choose the standard of review o But the Pushpanathan factors are revisited later on

Dunsmuir v. New Brunswick (2008, SCC): Dunsmuir was a non-unionized civil servant employed in the DOJ in New Brunswick. The Government terminated his employment, due to a number of problems, and offered him severance in lieu of notice. Mr. Dunsmuir took the position that he was entitled not just to a contractual remedy but also to fairness before being terminated (e.g. an opportunity to know the concerns of the employer and a chance to address them). A labour arbitrator was appointed to address Mr. Dunsmuirs challenge and concluded that fairness was indeed required, and had not been provided. The reviewing judge reversed the arbitrators finding, finding at various points that the applicable standard of review was correctness, reasonableness simpliciter and patent unreasonableness. The notion that a single decision by a single decision-maker would require a court to parse through three different standards of review vividly illustrates the complexity that the Supreme Court then sets out to remedy. The Court of Appeal for New Brunswick dismissed the appeal from the reviewing judge, and the matter thus ended up at the Supreme Court. Writing for the majority, Bastarache and Lebel JJ provide two standards of review, and revise the pragmatic and functional approach to the standard of review analysis, with an emphasis on three bases for deference: (1) the presence of a privative clause; (2) a discrete and specialized regime in which the decision-maker has special expertise; and (3) a question of law that is not of central importance to the legal system or beyond the specialized expertise of the tribunal. The reasonableness standard will usually apply automatically to questions of fact, discretion and

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policy and also to questions of mixed law and fact where the legal issues cannot be easily separated from the factual issues. This standard may also apply to those questions of law where a tribunal is interpreting its own statute or interpreting statutes closely connected to its functions. The reasonableness standard will also apply when the tribunal has particular expertise in the application of a general common law or civil law rule in relation to a particular statutory context. The correctness standard, which remains as before, does not attract any deference and if applicable, the court is required to undertake its own analysis and determine if the decision under review is correct. The correctness standard applies to constitutional questions, true questions of jurisdiction, questions of law of central importance to the legal system that are outside the tribunals area of expertise, and questions of jurisdictional lines between two specialized tribunals. A two-step process for determining the appropriate standard of review was set out. First, the court must determine whether the standard of review for the type of issue being considered has already been determined under existing case law. If so, the standard of review analysis need not be repeated, and that pre-determined standard will apply. If the standard of review has not yet been determined, the court must proceed to the second step, and conduct a contextual standard of review analysis, considering these factors: The presence or absence of a privative clause; The purpose of the tribunal as determined by interpretation of its enabling legislation; The nature of the question at issue; and The expertise of the tribunal. Considering all of these factors will not always be necessary, as some of the factors may be determinative of the application of the reasonableness standard. In articulating the criteria for determining what is or is not reasonable, the majority rejects a negative approach that examines the immediacy and magnitude of the alleged defect, instead advocating a positive inquiry centred on the ideal of rationality. This directs the assessment toward the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. Thus, indicia of reasonableness include the process-oriented factors of intelligibility, justification, and transparency of the reasoning, as well as an outcome that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Binnie Js concurring judgment considers the focus on what might be an issue of central importance to the legal system as a whole to be a distraction. He prefers a simpler rule that provisions of the home statute and closely related statutes attract a reasonableness standard. The concurring judgment of Deschamps J (joined by Charron and Rothstein JJ) advances the most formalist analysis. These judges propose that questions of fact, mixed fact and law, discretion, and questions of law protected by a privative clause attract the deferential standard of reasonableness, while other questions of law warrant stricter scrutiny for correctness. The Court states that judicial review upholds the rule of law by ensuring that all exercises of public authority are lawful, reasonable, and fair. But judicial review also respects legislative supremacy through the proper approach to the standard of review, through recognizing effective limits on judicial discretion such as legislative intent, privative clauses, and agency expertise, and by rejecting a courtcentric conception of the rule of law. While it is clear that the standard of review as a legal doctrine has been changed by Dunsmuir, it is not clear that any case previously decided on standard of review grounds would have resulted in a different outcome if the Dunsmuir framework were applied. This is in contrast to the aspect of Dunsmuir dealing with the applicability of procedural fairness to the decision to terminate public

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employees, where the Court reversed its earlier position in Knight v. Indian Head School Division, No. 19 (1990). Whereas a wide range of public sector labour cases which turned on fairness considerations will now potentially be decided differently, it is hard to point to a standard of review decision where the outcome might now be in doubt. Indeed, the majority and concurring judges in Dunsmuir apply different standards to the decision of the arbitrator but all conclude that the arbitrators decision cannot stand. Dunsmuir thus demonstrates that the law will not draw a distinction between public office holders and other employees in dismissal cases with respect to the duty of fairness. This duty, will, in general, have no application to the dismissal of employees. The Court assumes that modern public office holders enjoy contractual employment relationships, and that their contracts address procedural fairness concerns. As a result, the protection of the common law duty of fairness is unnecessary. Nevertheless, it is clear that Dunsmuir limits the protection of public employees to some extent. It will no longer be possible for public office holders to be restored to their positions, since that remedy is not available for breach of contract. The crucial consideration with respect to whether a duty of fairness is owed is whether or not a public employee has a contract of employment. Where such a contract exists, it will be assumed that it addresses procedural fairness issues. If it does not, the normal common or civil law principles will govern. Thus, in either event, protection from wrongful dismissal will be governed by private law contract principles. An employee of the government is the subject of a couple of different statutory schemes Dunsmuir takes it back to two standards, but not strictly referring back to CUPEs two If there are the factors present, the court must defer Unless the court is dealing with a legal question of central importance to the legal system as a whole, there must be some deference When ought the court not to defer (i.e. correctness standard)? Constitutional issues (division of powers or Charter), or the above general importance situation; or, drawing back to the language of CUPE, if this is a question that draws jurisdictional lines between competing tribunals/agencies, or a true question of jurisdiction, this will also attract a correctness standard Stuff that will create problems in the future from Dunsmuir: o Deschamps worries that it will be difficult to objectively determine what is of general importance to the legal system as a whole o Deschamps is on board for the two standards of review, but her view of deference is very much guided by a court-centric view of courts knowing best on questions of law When talking about administrative bodies, the tendency is to use the language of jurisdiction Dunsmuir re-emphasises the importance of expertise and broadens the understanding of the importance of the fact of legislative designation to administrative bodies

BC Administrative Tribunals Act (2004): S. 43 sets out that the tribunal has jurisdiction to determine all questions of fact, law or discretion that arise in any matter before it, including constitutional questions. Ss. 44 and 45 set out that the tribunal does not have jurisdiction over constitutional questions or those questions relating to the Charter. S. 51 sets out that the tribunal must make its final decision in writing and give reasons for the decision. S. 58(1): If the tribunals 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.

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(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; o (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 o (c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunals decision is correctness. o (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; (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. S. 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. o (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. o (3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable. The BC ATA is a 2004 comprehensive justice reform measure that expressly denies most provincial administrative tribunals jurisdiction over Charter issues. If a tribunals enabling statute has a privative clause, the standard of review is patent unreasonableness for questions of law, fact, or the exercise of discretion, for all matters over which the tribunal has exclusive jurisdiction. 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 a standard of correctness applies to all other matters. Where the enabling statute has no privative clause, findings of fact are reviewable on the basis of no evidence or unreasonableness, questions of law are reviewable on correctness, and procedural fairness is decided having regard to whether, in all of the circumstances, the tribunal acted fairly. o o

Judicial Comments on the Application of Dunsmuir to ss. 58 and 59 of the ATA To date, British Columbia courts have been cautious in their approach to if and how Dunsmuir might affect the standard of review provisions in the ATA, with a number of decisions either concluding Dunsmuir does not apply or its application need not to be resolved, or that even if Dunsmuir applied, the result would be the same. Canada (Citizenship and Immigration) v. Khosa (2009, SCC): Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review. Despite Dunsmuir, patent unreasonableness will live on in BC, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. That said, of course, the legislature in s. 58 of the BC ATA was and is directing the BC courts to afford administrators a high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention.

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The majority of the SCC in Khosa provides clarification as to the application of Dunsmuir to these two acts and similar legislation across Canada, and urges reviewing courts to grant greater deference to administrative tribunals generally. By way of background, the administrative decision under review in Khosa relates to an appeal brought by the then immigrant and permanent resident Khosa from an order that he be removed from Canada for serious criminality, having been convicted of criminal negligence causing death as a result of his "street racing." Khosa appealed the order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board on the basis of humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act (IRPA). The IAD denied Khosas appeal. The Federal Court applied the "patent unreasonableness" standard of review and dismissed Khosas challenge to the IAD decision. The Federal Court of Appeal disagreed with the lower courts interpretation of s.18.1 of the Federal Courts Act, applied the reasonable simpliciter standard of review, and ultimately reversed the IADs decision. The SCC agrees with the Federal Court of Appeals application of the reasonableness standard, but disagrees with the result and affirms the IADs decision. Writing for the majority, Binnie J. cautions that the abolition of the patent unreasonableness standard "does not pave the way for a more intrusive review by courts" (Khosa, at para 2, citing Dunsmuir, at para. 48). The SCC further states: "This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely. By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law. Clearly, the majority felt that the IAD disposition was unjust to Khosa. However, Parliament saw fit to confide that particular decision to the IAD, not to the judges." (Khosa, at para 17.) Throughout its decision, the SCC endorses the trend for reviewing courts to grant greater deference to administrative decision-makers. As stated above, for judicial reviews considered under the Federal Courts Act, the SCC clearly endorses the application of Dunsmuir and the two-standard approach to judicial review. The SCC found that the "language of s.18.1 generally sets out threshold grounds which permit but do not require the court to grant relief." (Khosa, at para 36) The SCC further states that this discretion to grant or withhold relief "must be exercised judicially and in accordance with proper principles," which "principles include those set out in Dunsmuir." (Khosa, at para 40.) After reviewing the particular paragraphs of s. 18.1(4) of the Federal Courts Act, the SCC concludes that the legislature only intended to specify grounds for, not standards of, judicial review. (Khosa, at paras. 41-48.) In Khosa, the SCC acknowledges that "a legislature has the power to specify a standard of review if it manifests a clear intention to do so." The SCC further notes that most jurisdictions in Canada enacted legislation like the Federal Courts Act that identify grounds for review but not the standard of review. (Khosa, at paras 50-51) Thus, for judicial reviews commenced under such legislation, it follows that the two-standard approach applies. Yet even where the intention appears clear such as in the B.C. ATA, which specifies the standard of patent unreasonableness, the SCC suggests that Dunsmuir ought to guide a reviewing courts decision. (Khosa, at paras 19 and 50.) For example, considering the B.C. ATA, the SCC states: "Despite Dunsmuir, patent unreasonableness will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law." (Khosa, at para. 19)

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The SCC further states that even where there is a clear intention to specify a standard of review, where the legislative language permits, the courts: (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters" (Khosa, at para. 51) Rothstein launches a very fundamental critique, from dissent, which is useful for questioning the assumptions that operate in this new reasoning In the language of forum, grounds, and remedy, where exactly does standard of review fit? Because the statute is silent about standard of review, what standard ought to apply to a statutorily authorized judicial review? The majority simply says the common law is the answer, unless otherwise stipulated by the statute o Rothstein says in fact the statute does indicate a standard of correctness, except for the provision that talks about findings of fact So in the simplest sense, this is an argument about how you read legislative silence The court has some work to do over the significance of s. 18.1(d) of the Federal Courts Act o Arguably, it looks like it sets out a standard of review with respect to findings of fact Rothstein that in all these other situations, we should infer they intended to speak about deference, and so a standard of correctness should attach to these But underneath all of this is a long argument about the role of deference Khosa wants to give to the standard of review of reasonableness attention not only to the outcome, but also to the process of decision-making

Canada (Attorney General) v. Mossop (1993, SCC): Mossop illustrates that the majority of the SCC regards the expertise of human rights tribunals and commissions as relatively weak (these are legal issues courts are equally, if not more, competent to deal with). The issue in the case was whether family status, a prohibited ground of discrimination under s. 3(1) of the Canadian Human Rights Act, included a same-sex couple. The majority determined, contrary to the Canadian Human Rights Tribunal, that family status did not comprehend same-sex relationships. La Forest J acknowledged that courts occasionally defer to tribunals on questions of law in the absence of a privative clause in recognition of relative expertise. However, a human rights tribunal was not analogous to a labour relations board. (1) While a human rights commission engages in a variety of educational, policy-making, advisory, and investigatory roles, these functions do not confer any entitlement to deference on the tribunal in its adjudicative function. (2) The tribunals themselves are ad hoc, like labour arbitrators, but even less deserving of deference than arbitrators. Labour arbitrators are selected by the parties, often have jurisdiction over arbitrability, and operate within the narrow confines of a collective agreement entered into by the parties and only binding on them. In contrast, a human rights tribunal imposes decisions on the parties and has direct influence on society at large in relation to basic social values. The ambit of human rights tribunals superior expertise is fact finding and adjudication in a human rights context, as distinct from concepts of statutory interpretation and general legal reasoning. The majority determines the appropriate standard of review to be correctness and finds the interpretation to be incorrect. To the extent that expertise is the overriding factor in the pragmatic and

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functional test, it is not surprising that the majority Court resists deferring to human rights tribunals. Rights adjudication lies at the heart of the judicial function and institutional self-understanding. Lamer CJ (concurring with two others) grounds his statutory interpretation analysis in legislative intent. Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law. If there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail. In this case, however, the legislative intent is clear to Lamer CJ, so no recourse to the Charter as an interpretive aid may be had. La Forest J also focuses on legislative intent, but is more fixed on the statutory text, and specifically the word family. He describes the rules of statutory interpretation as demanding that one give to the words used in a statute their usual and ordinary sense having regard to their context and to the purpose of the statute. While LHD and McLachlin/Cory agree on the right answer, LHD is alone in arguing that a patent unreasonableness standard should apply, while McLachlin and Cory concur that a correctness standard is appropriate. This suggests that to them LHDs conclusion represents the best account of the right answer to this interpretive dispute. Instrumental use of statutory interpretation; shouldnt be read literally for standard of review rules The issue is: Does discrimination on the basis of family status include discrimination on the basis of same-sex couples? The Canadian Human Rights Code did prohibit discrimination on the former basis but not on the latter Mossop is about legal interpretation a big part of substantive review is about the review of interpretation of statutory language Mossop is also useful to illustrate how judges use a grab-bag of techniques You see the interplay of plain meaning, dictionary definitions, legislative silence, etc. LHD dissent: since this is quasi-constitutional, we need to take that into account a large, purposive, and liberal interpretation must be given, and Charter values must not be ignored

LHDs dissent, which does not distinguish between the commission and the tribunal, finds that the breadth of the powers and duties set out by the act points in the direction of a more deferential approach. A deferential standard of review should be afforded, and the tribunals interpretation of family status was not patently unreasonable. In agreeing with LHDs disposition of the case, the other dissenters indicate their support for the idea that the statutory text must be read in light of social context (and thus changing social conceptions of family), and with particular sensitivity to the ways that human rights principles inflect and are inflected by that text and context. This sensitivity is best served by careful attention to the reasons of the tribunal. LHD writes the Baker decision and her same normative approach is present there. National Corn Growers Assn. v. Canada (Import Tribunal) (1990, SCC): The Canadian Import Tribunal conducted an inquiry into the importation of corn grain from the United

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States into Canada, an inquiry authorized under s. 42 of the Special Import Measures Act, and determined that continued importation of grain had already caused, or in the future would likely cause, injury to Canadian producers of corn grain. This decision reaffirmed the deputy ministers prior preliminary conclusions that material injury existed and, thus, provided support for his decision to impose a provisional duty on American corn in order to protect Canadian corn growers. The Federal Court Act, however, allowed for judicial review if a board, commission, or tribunal had, among other grounds, 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. Because the Tribunals decision was based on a factual finding of harm informed by its expertise, and because the Act also contained a privative clause stating that every order or finding of the Tribunal is final and conclusive, this meant that the decision would be assessed on the standard of patent unreasonableness so that courts could best respect legislative intent. Review turned on whether or not it was patently unreasonable for the tribunal to refer to the GATT in interpreting the SIMA, whether the Tribunals interpretation of s. 42 in its constitutive legislation was unreasonable, and whether the tribunal reached its decision without any cogent evidence to support its determination of material injury. In concurrence, Wilson J evoked CUPE to caution the majority about the effects of engaging in a probing examination of a decision. According to Wilson J, CUPEs approach to the standard of review, particularly with respect to patent unreasonableness, entailed a relationship between courts and administrative agencies where the courts should recognize that (1) administrative agencies, not courts, bear primary statutory responsibility for their legislative mandate in the area of regulation; (2) administrative agencies possess expertise, experience, and contextual knowledge about which the courts know very little; and (3) statutory provisions do not admit to one uniquely correct interpretation but rather can sustain a variety of reasonable interpretations. Wilson J, in applying the patent unreasonableness standard and attempting to avoid the kind of meticulous analysis that would be more in line with a correctness standard, finds that the only issue which the court may consider, once it accepts that the interpretation of a given provision is a matter that falls within a tribunals jurisdiction, is whether the tribunals interpretation of the provision is so patently unreasonable that its construction cannot be rationally supported by the relevant legislation. The majority decision written by Gonthier J also concluded that the tribunal was not unreasonable with respect to any of these three matters. To reach this result, Gonthier J was much more concerned with an examination of reasonableness as encompassing how the tribunal came to its decisions (as well as the decisions merits). For Gonthier, in some cases the unreasonableness of a decision may be apparent without detailed examination of the record, but in others it will be necessary to perform a more in-depth analysis to reach this same level of unreasonableness. Probing (breaking the decision down into a set of discrete judgments) must be undertaken in light of the overall question for determination, namely, whether or not the interpretation ultimately arrived at is patently unreasonable. Gonthiers approach appears to have won out in the case law on applying a patent unreasonableness (and by extension more deferential reasonableness) standard. (1) In the review of questions of fact, examination of the record to determine whether the standard of no evidence is met is a generally acknowledged necessity. (2) In Southam, Iacobucci J largely adopts Gonthiers reasoning, finding that it will be possible (and appropriate) to examine the record on a patent unreasonableness standard without performing significant probing or testing. This case arises at a time when the court has decided CUPE and is trying to sort out whether the standard of review should be correctness or patent unreasonableness (only the two at that time pre Southam so this probably bears significantly on the outcome)

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So part of this case is trying to figure out whether this provision that seems to oust judicial review was a privative clause or not One important lesson: Past jurisprudence that has attempted to find what is within jurisdiction, outside of jurisdiction, questions of jurisdiction, etc, need to be disregarded and a new approach should be taken All of this is wrapped up in a discussion about the rule of law The question in this case is about a regime of international trade; issues in relation to national controls for trade across borders (pre-NAFTA) Grain is being imported into Canada, and the concern is that in order to be competitive, Canadian corn growers are forced to sell their goods more cheaply in order to prevent massive importation of the subsidized US stuff Legally speaking, the case is about a determination by the Canadian Import Tribunal that its legislative authority to determine that subsidized goods being imported have caused material injury has been engaged here, and thus it can impose countervailing measures One thing the decision-maker must figure out is whether the goods being imported into Canada are subsidized goods, and whether material injury is being caused Gonthiers approach is to take apart each step and ask whether the tribunals approach or outcome with respect to each step was patently unreasonable So, first, the tribunal used GATT to help it interpret the terms was it patently unreasonable to do so? Also, the tribunal decided that potential imports were also relevant and could be included in the meaning of subsidized goods was this a patently unreasonable interpretive move? Was the finding that the depressed US price was actually causing the material injury a patently unreasonable decision? Etc Wilson is anxious that this model of disaggregation will subvert deference Without over-generalizing, Wilson is more about outcome, while Gonthier is more about process (which matches up with Wilson being about aggregation and Gonthier being about disaggregation) Its much easier to engage in analysis of the reasoning process when you have a requirement of reasons (think Baker) How does this standard of review analysis previously articulated play out in Dunsmuir itself? Majority takes the view that there is a reasonableness standard, and posits some factors for determining how the decision could be considered unreasonable

Canada (Citizenship and Immigration) v. Khosa (2009, SCC): Standard of Review Analysis: The judicial review process involves two steps. At the first step, it may be possible to rely on the existing jurisprudence to determine the adoption of one standard or the other. At the second step, when jurisprudential categories are not conclusive, the four factors from Dunsmuir must be considered: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by its enabling legislation; (3) the nature of the question at issue before the tribunal; and (4) the expertise of the tribunal. In applying the reasonableness standard, there might be more than one reasonable outcome, but as long as the process and the outcome fit comfortably with the principles of justification, transparency, and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. Dunsmuir reinforces in the context of adjudicative tribunals the importance of reasons.

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Clifford v. Canada (Attorney General) (2008, OSCJ) There is no need to undertake an assessment of the standard of review with respect to matters that involve a breach of natural justice. Where requirements of natural justice and procedural fairness have not been met, a tribunal has exceeded its jurisdiction and the court will intervene. Here, the tribunal was required to make findings that are issues of mixed fact and law, so the standard of review should be reasonableness simpliciter. A reasonableness review entails, from Dunsmuir, an inquiry into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to 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 acceptable outcomes which are defensible in respect of the facts and law. The content of the duty of fairness is determined by resort to the 5-part Baker test. In this case, the tribunal was an arms-length neutral arbiter determining the rights of two competing claimants to a substantial amount of money. The process of the decision-making was a formal hearing, akin to court proceedings. The issues at stake were important to the claimants, and the former spouse of the deceased had a reasonable expectation, given the nature of the process and what was involved, to have full disclosure of the case she was required to meet prior to embarking on the hearing. A tribunal is the master of its own procedure. It is not required to adopt the procedural rules of the civil court system in order to achieve fairness. A right to prior oral discovery, for example, is not an essential ingredient for a fair hearing. Where sufficient reasons are not provided, it will be difficult to ascertain the rationality of the result, and thus if a decision makes no findings of credibility or reliability despite hearing conflicting evidence on many points, it will not be possible to tell whether the tribunal considered all relevant factors, or failed to appreciate the nature of the test, or did not consider the relevant evidence at all. It is not sufficient for the tribunal to simply summarize the positions of the parties and baldly state its conclusions. Reasons are required, not merely conclusions. Thus, where procedural fairness of this degree attaches to the decision, the decision is not a reasonable one because it does not meet the justification, transparency, and intelligibility criteria, and so must be quashed. Khosa and Clifford: IADD decision shows us the reasons and why they denied Khosa relief under the H&C application Rothstein says a standard of reasonableness must attach (Fish in dissent agrees with this), and the decision is reasonable (Fish disagrees with this) Note that it is a discretionary decision, turning on what are humanitarian reasons and how discretion should be exercised in light of the statute The majority picks up on the idea that this is exceptional relief IADDs job in relation to the criminal law (bound by the criminal process) is also something that needs consideration for the majority why should the tribunal be shown deference regarding something they are certainly not expert in? Another piece needing consideration is the role of statutory purpose this is a different context than the criminal law, so what is the purpose of this provision (the factors seem to emerge from a case called Rivet) Clifford raises some of the same problems of Khosa (how you evaluate reasons given by this body, how it evaluates evidence, etc), but it also raises more clearly the question of the duty to give reasons

59 Pre-privative clauses CUPE Southam / Pezim Pushpanathan BC ATA Dunsmuir


Khosa Reasons for deference given in CUPE: the privative clause, the possibility of multiple contestable meanings/interpretations within a reasonable realm, Pezim and Southam give us the idea that even in the absence of a privative clause, deference should still be owed to at least some degree The court thus moves away from the inside jurisdiction/outside jurisdiction question that limits things to two standards of patent unreasonableness and correctness Reasonableness simpliciter leads to an avalanche of jurisprudence BC ATA actually sets out standards of review, but even here (in Dunsmuir) the court says the common law principles inform

At para. 62, the majority in Dunsmuir provided a two-step path for determining the appropriate standard of review: (1) ascertain whether the jurisprudence has satisfactorily determined the degree of deference to be applied to this type of question, and (2) if the jurisprudence has not done so, determine what standard is appropriate in light of the factors they set down at para. 55: A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). The nature of the question of law. A question of law that is of central importance to the legal system and outside the specialized area of expertise of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. Then, in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, the Supreme Court of Canada applied the Dunsmuir principles to determine the appropriate approach to judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board. In doing so, they emphasized (at paras. 28 and 33) that the flexibility of the general law of judicial review is essential in the case of a statutory provision that covers a galaxy of decision-makers operating in different decision-making environments under different statutes with distinct grants of decision-making powers. In that case, the Federal Courts Act, R.S.C. 1985, c. F-7, governed judicial review of decisions of the Immigration Appeal Division. In this case, the Commercial Arbitration Act governs appeals on questions of law on arbitral awards under the Regulation.

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Chapter Ten Discretion The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily-imposed set of boundaries. Discretion is exercised in the space between the expression of the will of Parliament and mere execution of executive acts. Roncarelli v. Duplessis (1959, SCC): Two fundamental factual findings led to the Court finding in Roncarellis favour: (1) even though the licence had been formally cancelled by the Quebec Liquor Commission, the latter had acted on Duplessiss orders; and (2) the authorities had been motivated by a desire to curb what they perceived to be seditious activities of the Jehovahs Witnesses and to punish Roncarelli. For Rand J, even in the case of formal delegations of apparently unfettered discretion, there were always implied limits to its exercise. Also, the statutory framework, and more specifically the requirement of a permit, had important consequences for permit holders, thus the discretion could not be viewed as a pure exercise of power to be exercised arbitrarily. For discretion to be legally exercised, it had to pursue legitimate purposes and take into account the situation of the individual affected by the decision. Abuses of Discretion: (1) Unauthorized Object or Purpose, Improper Considerations Clearly evident in Roncarelli (incompatible with the statute and based on improper considerations), or in Shell Products Ltd v. Vancouver (City), where the object of the resolution passed did not pursue municipal purposes which limited the powers of the city to its territory. (2) Bad Faith Roncarelli says discretion necessarily implies good faith in discharging a public duty; there is always a perspective within which a statute is intended to operate (3) Acting Under Dictation or Influence Courts presume that when Parliament chooses to delegate discretion to a particular decisionmaker, only the latter can actually exercise it (4) Wrongful Delegation of Powers Similar to the preceding reason, courts assume that discretion is bestowed on executive decision-makers on the basis of their expertise or particular situation in the administrative machinery, so that an administrative authority must exercise discretion itself without delegating that responsibility to another (5) Fettering of Discretion (6) Unreasonableness Baker v. Canada (Minister of Citizenship and Immigration) (1999, SCC) For LHD, the review of discretion could follow the pragmatic and functional approach from the standard of review analysis. In these circumstances, the Ministers decision had to be reviewed on the standard of reasonableness simpliciter, and the decision failed to meet that required standard. The reasonableness of the exercise of a discretionary power conferred by Parliament depended on the

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words compassionate and humanitarian considerations and their meaning. This decision softens the dichotomy between procedure and substance the Court not only required that reasons be given for decisions having important consequences for the individuals concerned, but also required that those reasons demonstrate that the decision made was sensitive to the situation of those individuals. Baker thus recognizes that procedure may affect the substance of the decision. The Court in Baker suggests that the evaluation of the reasonableness of the decision to deport Baker included the evaluation of the weight that had been given to a consideration that was considered particularly relevant to the decision: the interests of Bakers children. Thus, there was some suggestion that the reviewing court could, when called upon to review the validity of any given exercise of discretion, reweigh the considerations that were taken into account by the decisionmaker. In Suresh, however, the SCC clearly says this is not the case: the authority required to weigh the relevant considerations in Baker was the Minister, not the reviewing court. Reviewing courts must therefore limit themselves to ensuring that only relevant considerations have been taken into account; weighing is for the decision-maker alone. CUPE v. Ontario (Minister of Labour) (Retired Judges Case) (2003, SCC): Binnie resorts to the context surrounding the Ministers exercise of discretion, finding that the HLDAA is not a broad policy vehicle, and the Minister is given a narrow role (to merely substitute for the parties in naming a third arbitrator in case of their disagreement), and thus that his approach to his power of appointment in rejecting the limitations on his statutory mandate was patently unreasonable. The Minister was, as a matter of law, required to exercise his power of appointment in a manner consistent with the purpose and objects of the statute that conferred the power. To achieve the statutory purpose, the parties must perceive the system as neutral and credible. Binnie: the content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations. Inevitably some of the same factors that are looked at in determining the requirements of procedural fairness are also looked at in considering the standard of review of the discretionary decision itself. The precise wording of the power of appointment of a person who is, in the opinion of the Minister, qualified to act is a strong legislative signal, coupled with the privative clause, that the Minister is to be afforded a broad latitude in making his selection. The purpose of the statutory provision and the act as a whole weigh against such significant deference, but on the whole a ministerial discretion need not be wide open to attract the protection of the patent unreasonableness standard, so this is the standard to be applied. In applying the patent unreasonableness test, the court is not to reweigh the factors, but is entitled to have regard to the importance of the factors that have been excluded altogether from consideration. Not every relevant factor excluded by the Minister from his consideration will be fatal under the patent unreasonableness standard, but the problem here is that the Minister expressly excluded factors that were not only relevant but went straight to the heart of the legislative scheme. Suresh v. Canada (Minister of Citizenship and Immigration) (2002, SCC): To deport a refugee to face a substantial risk of torture will generally violate s. 7 of the Charter; thus, notwithstanding competing values fundamental to our democratic society, such as public safety, the Minister must exercise her discretion to deport under the Immigration Act in accordance with the legislation, which conforms to the Charter.

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Having determined that Suresh made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, the Court finds that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death. The remedy available is that the case be remanded to the Minister for reconsideration, and Suresh is to remain in Canada until his new hearing is complete. Standard of Review for Ministerial Decisions under s. 53(1)(b) of the Immigration Act: With respect to the question of what standard should be adopted with respect to the Ministers decision that a refugee constitutes a danger to the security of Canada, the court should be deferent and set aside the Ministers discretionary decision only if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. On the four Pushpanathan factors: (1) Parliament intended only a limited right of appeal; (2) the fact that the formal decision-maker is the Minister weighs in favour of expertise, and thus deference; (3) the purpose of the legislation involves balancing policy issues and thus weighs in favour of deference to the Ministers position relative to that of the courts; and (4) the nature of the question is highly factbased and contextual, further suggesting it merits a wide degree of deference. The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion. To the extent that the court reviewed the Ministers discretion in Baker, its decision was based on the ministerial delegates failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations, and most importantly a set of published instructions to immigration officers. Thus, it is the Minister who was obliged to give proper weight to the relevant factors, and no one else. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors. Discretion: Roncarelli emerged at a time when the distinction between law and discretion seemed clearcut Until the Charter, the courts could play very minimal roles in policing the legitimate exercise of executive authority Post-Charter, courts have more authority to police the discretion to make laws As Roncarelli demonstrates, every grant of discretionary authority is granted within boundaries Once we understand that discretion is granted within a legal perspective, the question then becomes what is the nature of the boundaries In Khosa, the idea that Khosa denied he was involved in street racing was identified by the IAD as a relevant consideration, because the extent to which the person took responsibility for the crime he was convicted of committing was relevant to the question of whether he deserved humanitarian and compassionate relief, and further, in the majoritys view, to the question of whether he continued to pose a danger to the public Just as it might be an abuse of discretion to ignore something that is relevant, though, so to would it be an abuse of discretion to take into account irrelevant considerations Roncarelli articulates the basis upon which the borders of discretion were being policed, and insists that there are principles residing in the common law that inform what valid and relevant considerations were What about may v. must? Discretion v. rule? 407 ETR shows a legislative decision that says may, but it doesnt practically work out in

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context as a discretionary provision Despite the language, it does not import discretion so you cant just get caught looking at the word itself Sometimes discretion is granted in a more objective way, rather than a subjective way Retired Judges case When discretion is granted in subjective terms, there is even discretion for the minister to choose who is qualified to make the decisions, which can in turn be made within a range of choices (the first-order discretion) Legislative authority is also in some sense a discretionary area Vancouver v. Shell case Where should responsibility lie for the actions of elected officials? Municipalities are at the convergence of two distinct forms of remedy the ballot box and judicial review

Baker Discretion: Baker brought judicial review of discretion under the tent of the pragmatic and functional test, now re-branded from Dunsmuir as standard of review analysis When discretion is exercised by a Minister, the court will provide more deference than if discretion is exercised by a lower level authority Although discretionary decisions will generally be given a considerable amount of respect, there are all sorts of criteria for evaluating discretion enumerated in Baker, such as the principles of the rule of law, the principles of the Charter, the boundaries imposed in the statute, fundamental Canadian values, etc. The decision of Officer Caden was unreasonable because it was inconsistent with the values underlying the grant of discretion These values include the best interests of the child so something about the purpose of the statutory provision is at work here You also could have said, though, that the decision-maker failed to take into account a relevant consideration (the best interests of the child), and that the statutory provision imparts a need to take that consideration into account The failure of Lorenz / Caden to carry this out properly amounts to an unreasonable exercise of discretion; LHD is trying to duck the suggestion that she is just re-weighing the considerations of the decision-maker It is only once we acknowledge that Officer Lorenzs notes are reasons that the court can do all this work this is important to keep in mind explains why discretion has often been difficult to challenge, particularly before reasons requirements What was at stake in Suresh was the making of a discretionary decision by the Minister about whether Suresh posed a danger to national security If you are inadmissible on the basis of this category, then you cannot remain in Canada; unless you are a refugee, except you would still go subject to a determination by the Minister The exercise of the Ministers discretion was broken down into component parts, because the court found it necessary to subject one part of it to Charter review The difficulty is that the Charter issue is wrapped up with the decision as a whole discretion is a hard thing to disaggregate Generally speaking the court says that disaggregation is not advisable; once you start doing this, its pretty easy to apply differing standards of review and find excuses for intervening As part of the exercise of discretion, theres also the question about whether Suresh faces a risk of torture this is also problematic Is he a danger to national security? This involves questions of law (what does national security mean?) and questions of fact (his actual circumstances)

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The unresolved question in Suresh is what is the standard of review that is to be applied to this exceptional circumstances determination weighing between risk of torture and danger to national security What is the content of reasonableness here? Suresh explains Baker as not inviting the court on a deferential standard to re-weigh determinations by a Ministerial decision-maker

Ministry of Labour (Retired Judges): Deals with the appointment by the Ontario Ministry of Labour of third persons to resolve labour disputes Unions objected strongly to these appointments Under the relevant statute, the Minister of Labour has the discretion to appoint a third person who is in the opinion of the minister qualified to act so this is a clear grant of discretion There was a challenge to the exercise of this discretion Courts are reluctant to intervene in exercises of Ministerial discretion, and this comes out yet again here One way this finds expression is that Ministers are (although they are the executive and the statutory authority) elected officials, and the polls are another mechanism for holding him accountable o Does the task they are assigned require one kind of expertise or the other? Both? The Court assesses the exercise of discretion in this case by taking a number of steps toward finding it was unreasonable Binnie begins by providing the history of the statute, the historical context, the past practices, and uses that to read into the statute a particular kind of purpose with respect to the appointment of these third persons The purpose that he understands the statute to be directed at is industrial peace and mutually acceptable outcomes Given this, he then turns to the impugned provision and brings all of that to bear on the question of what it means to be qualified to act under the statute Binnie also tries to draw on a history of judicial modesty with respect to the administrative state, to determine who is best able to make decisions For the majority, it is noteworthy that there is nothing stipulated in the statute about the qualifications to act, whereas in another statute it actually says they can appoint any person they want This case is another example of not needing reasons Through an analysis of the exercise of discretion, we see the court actually getting into the question of appointment who is empowered to make decisions, according to what criteria? How do courts do review on a standard of deference (recall Corn Growers)? In Corn Growers, Wilson took the view that when reviewing on a standard of patent unreasonableness, all the court should look to is the outcome with respect to the statutory interpretation, and should not break down the steps involved Gonthier was more concerned with process, and thus disaggregated the steps Wilson said as a method it was important to stand back and look only at the outcome, in order to honour the idea of being not so probative In Retired Judges, as is frequently the case with exercises of discretion, there are no reasons to pick apart, so on what basis can you impugn the discretion? o You can evaluate the outcome, but you wont have a chain of reasoning to analyze behind it this is why Binnie instead goes over the legislative and contextual history, to say there is no reasonable chain of reasoning that could have led to this outcome Dunsmuir makes more explicit the idea that we can go after the reasoning process and also outcomes

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Chapter Thirteen Rulemaking and Regulations Regulations and rules are legally binding requirements and, as such, the power to make them must be expressly granted under a statute. Soft law, while also developed by the executive, is not legally binding, and the power to make these kinds of guidelines does not have to be expressly provided in a statute. Expertise, efficiency of time and information, and flexibility are all cited as reasons for delegating to both rules and soft law. They also provide a measure of certainty for the parties and consistency for decision-makers. The principal-agent problem is inherent in delegation, and has two dimensions: (1) the party making the rules or soft law (the agent) is not following the wishes of the legislature (the principal); (2) the legislature or the party making the rules or soft law (either of which could be termed the agent) may not be respecting the wishes of the ultimate principal the public. Four approaches to controlling delegated legislation: 1. Structuring the discretion a legislature will be more likely to delegate broad powers to make rules the more it trusts the agent making the rules to follow the legislatures policy preferences 2. Legislative oversight the legislature can introduce measures to directly control the discretion by reviewing the resulting rules or soft law 3. Substantive judicial review - see Enbridge 4. Process requirements there is a wide range of processes that a body creating rules could follow, from making the decision based on no external information and no consultation with any other group, to holding a full hearing on the rule, taking submissions from different groups, and engaging in consultations over draft rules For a decision to be legislative in nature, the body making the decision does not have to be the legislature: Inuit Tapirisat. The decision itself must have a legislative and general character. Although this category is not self-evident, it appears to exclude rules aimed at a single party, e.g. in Homex Realty v. Wyoming. Enbridge Gas Distribution Inc. v. Ontario (Energy Board) (2005, OCA): This involves judicial review of substance and a rule made by the Ontario Energy Board. Section 44 of the Ontario Energy Board Act gave the board the power to make rules governing the conduct of a gas distributer as such conduct relates to any person, (i) selling or offering to sell gas to a consumer. The board made a rule the Gas Distribution Access Rule permitting gas vendors (who buy and sell the actual gas for distribution to consumers) to determine who will bill consumers for the gas they buy and for the transportation of the gas to the consumer. The vendor could choose whether both the vendor and the gas distributor issue separate bills, or whether one issues a bill for both. The Act contained a statutory right of appeal, which the gas distributors used to challenge the rule. They appeared to be concerned that the rule potentially interfered with their relationships with the consumer. The OCA first considered the standard of review, holding that it should be correctness whether the matter was viewed in the more traditional ultra vires framework (as a question whether the board had jurisdiction to make the rule) or the more recent pragmatic and functional approach. Correctness is arrived at because the Boards rule making is subject to a statutory right of appeal, it is a question of law, which further involves pure statutory interpretation, something to which the Board can claim no greater expertise than the courts. There is also no reasons requirement in the statutory language, making it difficult to subject the Boards reasoning to the somewhat probing analysis that would be part of a more deferential standard of review.

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The gas distributors attempted to read s. 44 narrowly as only applying where there is a business relationship between the gas distributor and the vendor. However, the Court found that there was nothing in the Act that narrowed the interpretation in this manner and, in fact, that this interpretation was inconsistent with the broad purposes of the Act to regulate all aspects of the gas distribution business. It emphasized that the gas distribution business was regulated and that there was no common-law right to engage in it. The OCA ultimately finds that the statute gives the Board rulemaking jurisdiction with respect to this provision. As to issues of fulfilling statutory procedural requirements, Enbridge claimed that the OEB did not comply with the notice and comment requirements set out in the Act. These provisions required the Board to give notice of the proposed rule, including a description of the anticipated costs and benefits. If the board then decides to make a material change to the proposed rule, it must publish the proposed change and the anticipated costs and benefits. In this case, the OEB proposed the new rule, took comments, and twice gave notice of a proposed change and took further comments. However, in the judicial review, Enbridge argued that the board only provided anticipated costs and benefits for the proposal as a whole and did not break out the costs and benefits of the different billing arrangements. They argued that this was insufficient because the purpose of the notice and comment requirements was to impose a discipline on the board and allow the parties to make full representations. The OCA rejected this argument, noting that a cost-benefit analysis was not required for each provision of the proposed rule. It held that the purpose of the rule was not to impose discipline on the OEB and that if the legislature was concerned that the board engaged in thoughtless rulemaking, it would surely have imposed a requirement to give reasons for rulemaking, if indeed it left the Board with any rulemaking at all. The court stated that the purpose of the requirement was merely to give interested parties the opportunity to make written submissions on the change and that the parties had ample opportunity to do so. The court therefore seems to limit the usefulness of these provisions to reduce certain principal-agent risks in particular, the risk of making mistakes in rulemaking. Thamotharem v. Canada (Minister of Citizenship and Immigration) (2006, FCA): The IRB issued Guideline No. 7 in accordance with the legislative authority conferred on the chair of the IRB by s. 159 of the IRPA. Guideline No. 7 circumscribes inquiry powers of IRB members so that they can limit the scope of the inquiry and, as such, be in position to control the conduct of the hearing in order to ensure efficient and speedy determinations of claims. Guideline No. 7 changes the order of questioning by having the RPD leading the inquiry in the hearing room the purpose of this change is to allow the RPD to make the best use of its expertise as a specialist tribunal by focusing on the issues which it has identified as determinative. In Thamotharem, Guideline No. 7 was challenged as a breach of procedural fairness and on the grounds that it fettered the discretion of board members to decide the order of questioning appropriate to a particular claim. It was raised in the context of a refugee application involving a Tamil student claiming persecution if returned to Sri Lanka. The Federal Court held that Guideline No. 7 does not violate the boards duty of fairness but is an unlawful fetter on the exercise of discretion because board members often operate as if they are bound by it. The denial of Ts refugee status was quashed on this basis. The Federal Court of Appeal affirmed the courts finding with regard to Guideline No. 7 and the duty of fairness but reversed the aspect of the decision dealing with administrative discretion. It dismissed Ts application for judicial review on the basis that Guideline No. 7 expressly directs members to consider the facts of the particular case before them in order to determine whether there are circumstances warranting a deviation from the standard order of questioning. Also, it was not evident that board members generally disregarded this aspect of Guideline No. 7 and unthinkingly adhered to the standard order of questioning. Thus, while transparency calls for tribunals to develop and publicize

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guidelines on which parties before a tribunal may rely, the principles of administrative law limit the effectiveness of that reliance by requiring that a tribunal not treat its own guidelines as binding. The unlawful fettering of discretion (as with procedural fairness and statutory interpretation in this case) is reviewable on a standard of correctness. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Boards divisions is, however, reviewable for patent unreasonableness. 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 IRB, which sit in panels; in the case of the RPD, a panel typically comprises a single member. Nevertheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. The validity of a rule or policy itself has sometimes been impugned independently of its application in the making of a particular decision. Determining whether a policy statement is a mere guideline or is mandatory requires looking into its language, the practical effect of non-compliance, and the expectations of the agency and its staff regarding implementation. Adjudicative independence of members is not compromised here, for essentially the same reasons as given in Consolidated-Bathurst (full Board meetings). Fettering of discretion is the mirror image of excess of jurisdiction. When an administrative body exceeds its jurisdiction, it exercises a power that it was not given by the statute/regs. When an administrative body fetters its discretion, it fails to recognize and exercise a [discretionary] power given by the statute/reg, because the admin body wrongly believes that it is legally required to exercise its power in a particular way. Both are reviewed on a standard of correctness. Rules and Guidelines: Typically these are forms of guidance developed by the administrative agency itself These are either authorized by statute or devised as interpretive aids for the statute But because they dont have any kind of democratic authorization, they cannot be treated as binding or compelling There are also rules (as in Enbridge), which must be explicitly authorized, and in these cases they will be binding If an administrative body is given the authority to make rules, often there will be a back-end provision that they must be submitted to Cabinet for approval, and if Cabinet doesnt say anything within a specified amount of time they will be okay Another objective weve seen is a desire for consistency so interpretive guidelines will attempt to address this The doctrine of fettering discretion: If you have discretion authorized by the statute, you cannot be deprived of or deprive yourself of making choices, by instituting these restraints that say you must do one thing or the other o So sometimes all a guideline can do is offer suggestions, but where it seems practically to be operating as a rule, it will be fettering discretion Notice and comment can be considered an important form of participation, promoting democratic accountability o Can also be overestimated in its practical importance, though

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What are the terms of the grant of discretion and power to make rules? In Baker, the Minister-issued guidelines setting out the bases on which immigration officers should decide whether the individual deserved H&C consideration were not legally binding, but the SCC still took them into account in deciding that the officer had not acted reasonably in exercising the H&C power in favour of Ms. Baker

Regulations / Rulemaking / Guidelines: Fettering of discretion: if the law gives you room to manoeuvre, guidelines which are not law cannot purport to fetter or dictate these manoeuvres Legislative oversight: the extent to which rules or guidelines have to be subject to parliamentary or Cabinet approval Process requirements around making rules and guidelines as mechanisms for promoting participation in the process These cases deal with both substantive issues (what the legal authority to do what is claimed here) and procedural fairness Enbridge: Deals with the making of rules with respect to billing practices This is a regulated industry the selling and distribution of natural gas is significantly regulated by government; the distribution requires significant infrastructure, so cant just be left to the market Enbridge is challenging the rulemaking power that the OEB exercised in making this rule about billing The legislature gives the OEB the authority under statute to make rules governing the conduct of the gas distributor This statute also contains a notice and comment provision there is no general duty to provide notice and an opportunity to be heard with respect to the making of rules, but there are certainly statutes that impose the obligation statutorily So if the OEB is going to make binding rules, affected parties must have notice and opportunity to make submissions, and if changes are proposed there must be the further notice and comment procedure Although it is an appeal here and not a judicial review, the grounds of the appeal are very narrow One of the grounds of appeal is that this is a question of jurisdiction the power granted in the statute does not include this kind of rule o Court of appeal says this would be better analyzed under standard of review analysis (but even if you analyzed it as a question of ultra vires you would arrive at the same point, as ultra vires would go automatically to correctness) o The standard of review the court finds applicable is correctness o The language of ultra vires seems to be appealing to courts when they are dealing with elected officials (government actors) o A tribunal is a miniature law-making power (making rules, above and beyond just making decisions), so thats why there is the suggestion that the language of ultra vires might attach How would Dunsmuir affect this case and this issue? Goudge begins his analysis of authority by looking at the purpose of the statute o Sees it as governing all aspects of the business relationship At para. 31, says that the words of the provision read in their grammatical and ordinary sense, confer the powers on the Board Paras. 37 and 38 are very interesting arguments for our purposes: Enbridge is arguing that there is a kind of expropriation of their goodwill; also, this rule interferes with their common law

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right to have a direct billing relationship with their customers o Both of these arguments draw on some notion of the common law The court says there is no such common law right, and in any event, this an activity that is entirely regulated anyway, so claims of pre-existing common law rights are moot where this activity has been from the very inception heavily regulated From there, the court moves on to the notice and comment provisions, which are provided by statute But Enbridge argues that what the OEB did was provide an insufficiently specific form of costbenefit analysis, and also did not provide anything akin to reasons for the particular rule it came to o Its important to note that what were dealing with here is a right that the court would not think to exist but for the statute All of this is post-Baker: giving reasons for a rule is different from needing to provide reasons for a specific decision, though the court is not willing to make this extra leap Island Timberlands did require the governing body to issue reasons for its policy; it never had a notice and comment provision (maybe thats why the difference is there?)

Thamotharem: Whereas Enbridge was about a rule that had binding force, Thamotharem relates to a guideline with respect to something that is procedural On the one hand, its about a grant of discretion to make guidelines, but its about procedural fairness (so what would the standard of review to apply be?) Here we have both a statutory power to make guidelines under s. 159(1)(h) of the IRPA and separately a power to make rules under s. 161(1)(a) So was the Chair entitled to make a guideline about this? Was it really a guideline or was it a rule masquerading as a guideline? o If decision-makers are treating it as a rule, even if it looks and acts like a guideline, then practically speaking it is being applied as if it were a rule, and thus is fettering the discretion of individual decision-makers to conduct the hearing in the way that they perceive to be most fair Additionally, there is the question of whether the existence of a rule-making power specifically about procedure means that the Chair ought to use the rulemaking power when making rules/guidelines about procedure? Also an independent question of the content of these guidelines and whether they breach procedural fairness o Here there is an interesting standard of review question: this is a guideline, and the Chair has discretion about its exercise, and within this guideline, it is notionally discretionary for decision-makers so does this mean the standard to be applied is reasonableness because this is about discretion, or standard of correctness because this is about procedural fairness? o The court is willing to say that where the reverse-order questioning does attract procedural fairness issues, then the correctness standard will attach o Note again the practical significance of these different types of arguments The court says its important to understand that these are guidelines, and the language is framed in a way that makes them not look mandatory So it asks, is this a rule masquerading as a guideline? No Next, is the institutional culture of the IRB such that decision-makers would treat it as a rule? No The court goes through the ways in which the guideline tries to encourage compliance there is no threat of section for non-compliance, there is evidence that the IRB monitors members deviations from the standard order of questioning

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At para. 89, in the context of the discussion over fettering of discretion (interfering with adjudicative independence), the court says independence isn't really an all-or-nothing thing it is a question of degree The court ends up finding that it was not unreasonable for the Chair to choose this discretionary route Tries to distinguish between earlier case law, where the stakes were significantly different (e.g. Ainsley) this one is just about the rules of procedure, not about imposing penalties

Municipalities: Not constitutionally created, but created by statute Courts will use language appropriate to government In Homex, an interference with property rights will necessitate a right for affected parties to be heard It looks from Homex like the passage of almost any municipal bylaw, then, will impart some level of procedural fairness, even though it does look like a legislative decision Another issue is where (as in Homex) the municipality seems to be acting as the decisionmaker in its own dispute with another party; this is inappropriate (though in Homex the municipalitys bylaw stands) In determining the appropriate interpretation of the bylaw, the Court takes into account the statutory framework, the nature of the action being undertaken by the village, and the general circumstances prevailing at the time of the action; this echoes the Inuit Tapirisat approach. o So these general circumstances are what leads to the peculiar result

Cabinet and ministerial decisions are not subject to the legislative exemption per se, but it
will often be easy to characterize Cabinet and ministerial decisions as legislative, and as a result they will be exempted from the duty: e.g. Inuit Tapirisat. Subordinate legislation may or may not be covered by the legislative exemption political approval for such legislation is subsidiary in nature, and thus the concern about interference in the political process is lessened, especially where the law-making authority has been delegated to actors outside the political process altogether, for example, independent tribunals. Substance is more important than form where the legislative exemption is concerned: Homex Realty. For a decision to be legislative in nature, the body making the decision does not have to be the legislature: Inuit Tapirisat. The decision itself must have a legislative and general character. Although this category is not self-evident, it appears to exclude rules aimed at a single party, e.g. in Homex Realty v. Wyoming. Multani and Shell v. City of Vancouver are other cases involving municipalities From Multani, an elected body cannot resolve a Charter issue Also Lafontaine v. Lafontaine (Jehovahs Witnesses), where the municipality refused to justify its decision (in bad faith) and made it arbitrarily o So they remit the decision to the municipality to make reasonably
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