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Admin Law - Forcese

C. Forcese (CML 2212D) Administrative Law Winter 2006 Administrative Law Summary Administrative Law Defined Deals with the legal limitations, on the actions of government officials, proper exercise of delegated power and on the remedies which are available to anyone affected by a transgression of these limits, with these limits determined by statute, at common law and by the constitution The Admin Law Mantra - Show me the Power (Duplessis) Delegated Power Constraints on the delegation of power from the legislature to the executive: Cannot give powers that it doesnt have i.e. Charter and division of powers Inter-delegation Parliament cannot delegate its powers to the provincial legislature However, it can delegate to a provincial executive (PEI Potato Marketing case) Taxing powers legislature cannot delegate powers to set taxes to the executive (Eurig) Can delegate, but not abdicate powers (Re Gray) Delegated powers must not be unconstitutionally vague (s. 7 Charter) Beyond these constraints, there are no limitations that the legislature can delegate to the executive. Parliament Can Delegate Legislative power Discretionary power Constrained discretion Unfettered discretion Delegation of Power Accountability Rule of Law - The exercise of executive authority must be authorized by law. Where not authorized by law, executive without jurisdiction and acting ultra vires. Delegation of Power Judicial Review Exercise of delegated power policed by courts Legal authority for judicial review: Not expressly set out in Constitution Act, 1867 S. 96 sets out Superior Courts appointment of judges S. 101 Federal courts

A provincial statute cannot be constitutionally immunized from review of decisions on questions of jurisdiction (Crevier, 1981) The federal Parliament does not have the power to stop the courts from scrutinizing whether the executive acts with jurisdiction or not. (CIBC v. Rifou, 1986) Seven Steps to Administrative Law Wisdom The 3 Question Approach to the Exercise of Delegated Power 1. To whom is the power delegated? Determined by the delegating instrument (i.e. statute) Veterans Review and Appeal Board Act (VRAB) an appeal board (s.4); a chairperson (s.8); a review panel (s. 19); an appeal panel (s. 27); the Minister (s. 34), inquiry headed by a judge (s. 42.2); cabinet empowered to make regulations (s. 45) Ontario Human Rights Code appointed by Lt. Governor in Council, the provincial cabinet can create panels s. 35 - creates human rights tribunal s. 33.7 justice of the peace s. 31 Minister empowered to submit reports Issue of sub-delegation delegatus non potest delegare the delegate cannot sub-delegate Exceptions 1. Express exception 2. Fact-finding i.e. an employee sent to investigate 3. Lawful deputy Federal Interpretation Act powers given to a delegate are also given to their lawful deputy 4. Implied power of Cabinet or Minister can delegate to Deputy Minister 5. Other implied powers To determine if sub-delegation is allowed Court will ask: what is the authority on whom the power is originally delegated? Whos the person to whom the sub-delegation is made? (are they under the delegates control) Whats the power that has been given? (scope of power) How much of that power is being sub-delegated? (is it sweeping or a minor part?) 2. What is the nature of the power delegated? Determined by the delegating instrument (i.e. statute) spectrum from administrative to discretionary ____________________________________________________ Pure administrative Fettered Discretion Purely Discretionary No discretion C. Forcese (CML 2212D) Administrative Law Winter 2006 3

3. How is the power to be exercised? Two sub-questions: What is the procedure to be followed in the exercise of power? o Statute o e.g., VRABA, s.36. (2) Every hearing before the Board shall be open to the public except where the applicant or appellant requests that the hearing be closed and the Board is of the opinion that a closed hearing would not be contrary to the public interest. o Constitution o Fundamental justice in s.7 of Charter o Other Statutes o in Ontario, the Statutory Powers Procedures Act (SPPA) o at federal level, Canadian Bill of Rights o Common Law o natural justice if you look like a court, due process standards _ impartial decision-maker _ audi alteram - adequate notice and an opportunity to be heard o procedural fairness everyone who exercises delegated power whether you look like a court or not What substantive standards are to be used in exercising the power? o Statute o e.g., VRABA, s. 23(1): A review panel may, on its own motion, reconsider a decision made by it under section 21 or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law. o e.g., HRC, s. 34(1), 34.--(1) Where it appears to the Commission that, (a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act; (b) The subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith; (c) the complaint is not within the jurisdiction of the Commission; or (d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the Commission may, in its discretion, decide to not deal with the complaint. o Common Law o e.g., abuse of discretion o e.g., concept of error of law o e.g., concept of error of fact C. Forcese (CML 2212D) Administrative Law Winter 2006 4 The 4 Question Approach to the Control of the Exercise of Delegated Power 1. Who exercises the control? Is there a statutory right of appeal? (administrative remedy) Must exhaust all administrative remedies before going to the courts

Judicial review Provincial Federal 2. On what grounds is control exercised? Where statutory right of appeal: Read statute Judicial review: Limits imposed by the constitution unconstitutional actions by delegate or unconstitutional delegations by legislature Limits imposed by the statute delegating the power error of jurisdiction & concept of ultra vires pragmatic and functional test to find out if the error will result in an error of jurisdiction Limits imposed at common law e.g., natural justice, procedural fairness, abuse of discretion, and, in some limited instances, errors of law and errors of fact Limits imposed by other statutes e.g., Statutory Powers Procedures Act e.g., Federal Court Act (which broadens somewhat common law grounds of review) 3. What procedure must be followed in seeking to control the exercise of delegated power? Where statutory right of appeal: Read statute Judicial Review Provincial Ontario Judicial Review Procedure Act Federal Federal Court Act 4. What relief can be granted? Where statutory right of appeal: Read statute Judicial Review court will not substitute own decision for that of delegate (its not the role of the courts to make the decision of the delegate) prerogative writs: certiorari to quash or set aside a decision and send the matter back to the delegate prohibition prohibits the delegate from making a decision mandamus obligates the delegate to perform a duty habeas corpus order compelling executive to bring a detainee before the court and to explain why they are being detained legally C. Forcese (CML 2212D) Administrative Law Winter 2006 5 quo warranto order for government official to demonstrate the authority they have to hold office other, ordinary remedies:

declaration a statement of law from the court injunction an order which barrs someone from doing something (preventative injunction); and obliges someone to do something (mandatory injunction). Injunctions can also be classified based on their duration temporary injunctions (interlocutory injunctions); and permanent injunctions. Must also consider Judicial Review Procedure Act (Ontario) mainly common law remedies, prerogative writs and Federal Court Act (remedies are listed in the Act) **Note - Damages are not available amongst the remedies available under judicial review. In order to get damages, must go to trial court under tort, not administrative law. Damages are not available under judicial review because judicial review is there to ensure that Parliamentary supremacy is maintained, not to compensate people for harm. Common Law Procedural Requirements 1. Multiple sources of procedural requirements In the absence of statutory provisions, tribunals are masters of their domains and have implicit discretion. This is subject to limitations expressly or impliedly imposed by its enabling statute, statutory rules of procedure, principles of administrative law and the Constitution (Faghini v. Canada). 2. Common Law Procedural Requirements Tension between procedure and efficiency Background Dr. Bentleys Case (1723) even God gave Adam and Eve a right to be heard before expelling them from the Garden of Eden. Meaning of Natural Justice procedural standards audi alteram partem & nemo judex the right to be heard & right to an impartial decision-maker Cooper v. Board of Works (1855) Natural Justice originally associated with judicial officials but extended to delegated decision-makers by stretching the concept of judicial to administrative bodies that make judicial-like decisions. Judicial, Quasi-judicial and administrative Superadded duty to act judicially Nakkuda Ali v. Jayatatne (1951) a trading licence is not a right but a privilege, so it was purely an administrative function and not judicial or quasi-judicial. The board did more than what they were required to do. Copithorne v. Calgary Power (SCC) court found not superadded duty to act judicially for the Ministers decisions in the statute. Rather they found that the Minister was making a policy decision and it is simply an administrative Act and natural justice requirements were met. C. Forcese (CML 2212D) Administrative Law Winter 2006 6 Defining these terms

Canada v. Coopers & Lybrand - The indicator of quasi-judicial is a superadded obligation to act judicially in the statute. This depends on the legislative intent. But the mere silence of the statute is not sufficient, must see if we can confer this superadded obligation to act judicially. Common law test for this is: (1) Does the language of the statute suggest that a hearing is contemplated? (2) Does it affect the rights and obligations of persons? (3) Is the adversary process involved? Does the statute contemplate this? (4) Are there adjudicative rules to individual cases or does it implement social and economic policy (more general)? Common Law Procedural Requirements Canada Ridge v. Baldwin So long as someones rights are at issue, its judicial. So if a statute gives you power to make decisions you must act fairly. Re: HK UK case - House of Lords says that the officer was exercising power and it had an effect on the boys rights so there is an obligation to act fairly. Nicholson v. Haldimand Norfolk Police The court found a general duty to act fairly. Laskin J. looks at the impact on his rights and interests. There are serious implications to losing your employment. At the very least, fairness demands notice to be given, an opportunity to be heard and reasons for why he was being dismissed. Procedural fairness does not depend on classification as either judicial or quasi-judicial. Look to statute and then common law. Implications: 1. Duty of fairness that applies to dismissals from public office 2. There is a due process standard of some sort irrespective of classification of type of delegate 3. Relationship between natural justice and duty of fairness (these on one a spectrum the more serious the decision the more demanding we are for natural justice) Martineau v. Matsqui the old scheme of judicial/quasi-judicial doesnt matter anymore. All cases require procedural fairness. Certiorari is available to administrative decisions as well as judicial decisions. Cardinal v. Kent Institution There is a general common law principle a duty of procedural fairness on every authority where rights, interests or privileges are at issue. Implications: 1. Hints as to where a duty to be fair will be triggered where rights, privileges and interest being at stake. 2. Distinguishes between administrative and legislative decisions procedural fairness required in all cases where rights, privileges and interest are at stake, except where the decision-maker is exercising a legislative power C. Forcese (CML 2212D) Administrative Law Winter 2006 7 Knight v. Indian Head Three prong fairness test

1. The nature of the decision to be made by the administrative body; Legislative decisions do not have a duty to act fairly (legislative and general nature) as opposed to administrative and specific nature which requires a duty to act fairly. Generally, a decision of a preliminary nature will not trigger procedural fairness. The more final the decision, the more fairness will be required. 2. The relationship existing between that body and the individual; Employer-employee relationship in this case. The employer is a public body exercising statutory power, so this is why we are concerned. Employment during good behaviour must have just cause to dismiss Employment at pleasure can dismiss without cause purely discretionary 3. The effect of that decision on the individuals rights decision has to be significant and have an important impact on the individual Court finds that they should have acted fairly toward Knight. However, if the statute specifically excludes procedural fairness, then the court has no choice but to follow the legislatures intent. The court will be looking for something express by the legislature or by necessary implication (common law being displaced i.e. statute sets out its own procedure). So for Knight, the 3 prong test triggers procedural fairness and the statute doesnt prohibit it. Because Knight could be dismissed at pleasure, the court finds that the procedural fairness required is minimal and it was met in this case. A minimal standard is notice and opportunity to be heard. Notice to include reasons for dismissal and some sort of a discussion about it. That is sufficient. Implications: 1. Provides us with a test for where procedural fairness will be found to exist by the courts (3 prong test) 2. Confirms that there is a distinction between something called administrative power and something called legislative power 3. Confirms that should it wish to do so, the legislature can bar procedural fairness by so specifying in the statute Comments on 3 prong test: 1. The nature of the decision to be made by the administrative body (preliminary decisions vs. final decisions); Preliminary decisions: Re Abel Fairness should apply where the decision affects the rights, interests, property or liberties of any person.. This is an exception to the general rule, even though its a preliminary decision, procedural fairness is required. (serious consequences of preliminary decision) C. Forcese (CML 2212D) Administrative Law Winter 2006 8

Preliminary decisions: Re Irvine Where the investigation is conducted by a body with powers to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual, the courts are more inclined to intervene The court also finds that some procedural fairness should apply because the director in some sense is determining facts by their procedures. 2. The relationship existing between that body and the individual Private voluntary organizations Instances where courts have applied quasi-administrative law principles to private organizations. (i.e. clubs and political parties) 3. The effect of that decision on the individuals rights Meaning of rights (not necessarily pre-defined legal rights) Fairness exists where rights, interests, property or liberties of the person affected by delegates actions Legitimate Expectation Good administration may demand the observance of fairness wherever the citizen has been given a legitimate expectation that he or she will be treated fairly. (i.e. make public officials keep their promises) If you have a delegate who made you a promise and they dont fulfil it, can you make them? Old St. Boniface - Court refers to Hong Kong v. Ng Yuen Shiu When a public authority had promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty Court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation. Implications: 1. Legitimate expectation is part of Canadian law 2. Where subject matter of promise already covered in statute, some supplemental promise made by delegate not binding Gaw When a public authority has promised to follow a certain procedure and an interested person relied and acted upon that promise, it is not in the interest of good administration nor is it in the interest of fairness, to disregard that promise and to deal with that person by way of a procedure different from the one the public body committed itself to follow. So, must have A promise in relation to procedure Reliance on the promise by the interested person Furey

Where an official guarantees an outcome rather than a procedure, legitimate expectation would not apply. Legitimate expectation creates procedural, not substantive rights. There must be actual reliance, i.e. must have knowledge to rely on it. C. Forcese (CML 2212D) Administrative Law Winter 2006 9 Rural Dignity Canada Posts letter was not a promise but rather discusses a meeting for implementation of changes. Libbey So, must have, a promise, in relation to procedure, detrimental reliance For there to be a legitimate expectation, there has to be a clear and unequivocal representation by the government authority. CUPE v. Ontario Legitimate expectation by a public authority in the exercise of a discretionary power - be characterized as clear, unambiguous and unqualified, that has induced in the complainants a reasonable expectation that they will retain a benefit or be consulted before a contrary decision is taken. Summary: Legitimate expectation will arise if: 1. A promise or representation from a delegate (clear, unambiguous) 2. To proceed in a certain fashion (procedural in nature, not substantive) 3. Resulting in detriment when promise is broken to a person who relied on the promise Does not apply to: 1. Legislative decision (rule-making and broad policy making) 2. Promises that conflict with statutory duties Common Law Procedural Requirements Legislative v. Administrative Legislative powers not subject to common law procedural fairness standards o Martineau _ A purely ministerial decision, on broad grounds of public policy, will typically not afford the individual procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision o Re Smith A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the application of a general rule to particular cases. o Inuit Tapirisat Where the executive has been delegated a legislative function, and its not aimed at particular cases, there is no ground on which the common law should supply procedural fairness. Implications: Little unclear Rulemaking and all discretionary powers not subject to procedural fairness?

No Discretion exercised by Cabinet not subject to procedural fairness? No Certain sort of broad, policy-based discretion excluded from procedural fairness? Yes C. Forcese (CML 2212D) Administrative Law Winter 2006 10 o NAPO Matter of public convenience or matter of private convenience? If it was a matter of private convenience, Cabinet as well would have to meet procedural fairness standards. Implications: Not all discretion exercised by Cabinet will be considered legislative and immune from procedural fairness o Canadian Shipowners Associations, Fed Ct. Trial Division (1995) The more personal the issue, the more likely Cabinets power of review is to lose its legislative nature and the more the principle of fairness mentioned in Nicholson becomes applicable. Legislative v. Administrative Vancouver Island Matters of public convenience and general policy are final and not reviewable in legal proceedings. The more broadly based policy decisions, the less susceptible to procedural fairness requirements. Definition of Legislative: [T]he decision must be discretionary, usually, but not always, general in its application, based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts. Sunshine Coast Court finds that the board is exercising a broad policy decision and thus it is legislative and legitimate expectation does not apply to legislative decisions. Courts finds that because the board themselves imposed a constrained regulation on itself (the consultations) they should be bound by that. In effect the board has constrained its own legislative power. So, legitimate expectation should attach. At the end of the day, the parents end up losing because they werent aware of the consultation guidelines and therefore there was no detrimental reliance and there could not have been legitimate expectation. Summary Legislative decision: 1. Broad, policy-based power usually discretionary, general in application, based on exercise of judgement considering general policy 2. Rule-making Must rule-making also be general in application? Homex (SCC): by-law made with immediate and specific target in mind (municipality trying to

target developers). Narrowly focused (private convenience) rule-making will require procedural fairness. Emergencies Emergency situations where decision-makers must act quickly and procedural standards will have to be set aside (Re Walpole Island First Nation (1996) (Div. Ct.)). C. Forcese (CML 2212D) Administrative Law Winter 2006 11 Charter Procedural Requirements s.7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice Everyone Natural persons, does not apply to corporations Corporations can advance a s.7 argument because no one should be charged under an unjust law. Corporations can stand in the place of humans in these situations. Deprivation of life, liberty and security of the person s. 7 trigger Does not include property rights Principles of fundamental justice in violation of principles of fundamental justice Howard There is no common law procedural standard of fairness entitlement in the prison disciplinary context. Does s. 7 apply? Yes, s. 7 is triggered because liberty is at stake. Fundamental Justice: some procedural standards should apply - What that may require will no doubt vary with the particular situation and the nature of the particular case. S. 7 does not create an absolute right to counsel. Its variable, depends on the factual situation Counsel generally required by Fundamental Justice?: what is required is an opportunity to present the case adequately; [It] will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. Implications: Content of fundamental justice may be stricter than that of procedural fairness. Gallant The emergency situation shows that information on informants could not be given for safety reasons and procedural fairness rules could not apply (emergency situation). Therefore Wardens decision cannot be quashed on grounds of common law procedural fairness. S.7 triggered?: Yes, a transfer of a prisoner to a higher security prison is movement to a prison within a prison: this further deprives the prisoner of his or her liberty. Fundamental justice:

The procedural rules that are part of the principles of fundamental justice do not differ in substance from the rules of natural justice and of procedural fairness. Depends on circumstances of the case, gravity etc. Parliament is not free to constrain s.7 or negate its application, in the absence of a s.1 justification. The court finds that s.7 has been breached because prisoners were given no opportunity to answer the charges against them, but s. 1 would justify the actions of the warden and thus justify the violation of s.7. Singh Scheme of the Act: Act excludes possibility of oral hearing so Act trumps common law procedural fairness Charter s.7 triggered?: Yes, security of the person risk of torture upon deportation. C. Forcese (CML 2212D) Administrative Law Winter 2006 12 Is it in accordance with Fundamental justice: at the very least, fundamental justice includes the notion of procedural fairness oral hearings not required all the time - depends on the seriousness of the case: required where serious issues of credibility are involved: So Wilson J. finds that oral hearings will always be required in refugee hearings. S. 7 has been violated and is not justified under s.1. Dehghani Charter s.7 triggered?: Yes, potential of depriving a person of their security of the person Fundamental justice: it includes at a minimum the notion of procedural fairness and will vary depending on the circumstances. Does fundamental justice require counsel in this case?: No. Fundamental justice does not require that the appellant be provided with counsel at the pre-inquiry or pre-hearing stage of the refugee claim determination process. Charter Procedural Requirements Blencoe v. BC: can the stigma caused by a delay of admin. Proceedings trigger s. 7? In the circumstances of this case, the state has not prevented the respondent from making any fundamental personal choices. The stigma is not a product of the delay but of the allegations itself. The state is not responsible. In any event, security of the person does not preserve and protect some sort of self-standing Charter right to dignity At best, security of the person protects against only serious psychological incursions resulting from state interference Wells v. Newfoundland, [1999] 3 S.C.R. 199, at para. 59: ... legislative decision making is not subject to any known duty of fairness. Legislatures

are subject to constitutional requirements for valid law-making, but within their constitutional boundaries, they can do as they see fit. Aurthorson v. Canada, [2003] SCJ No. 40 (in reference to the Canadian Bill of Rights): Long-standing parliamentary tradition makes it clear that the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. the normal stages of Parliament Bill of Rights Procedural Requirements **Canadian Bill of Rights only applies to federal statutes. Its been described as quasiconstitutional because by its own terms gives itself primacy over other laws (s.2 of the Canadian Bill of Rights). Procedural guarantees: o S. 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, C. Forcese (CML 2212D) Administrative Law Winter 2006 13 _ (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; o S. 2. no law of Canada shall be construed or applied so as to _ (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations S. 1(a): Who can rely on this section? Must be an individual only includes natural persons or human beings, thus corporations are excluded. What are the triggers? Deprivation of right to life, liberty, security of the person and enjoyment of property What procedural guarantees must be met? Due process of law Smith, Kline & French Laboratories Due process requires, in addition to a fair hearing, a total process which provides, for the making of a decision authorized by law, a means for rationally relating the facts in the case to criteria legally prescribed by Parliament. Cannot use s.1(a) to attack the legislature itself. On top of a fair hearing requirement, due process requires a decision to be rationally related to the facts. Aurthson requires notice before a legislature can make a law? S. 2(e): Who can rely on this section?

Persons includes both natural and juridical persons, so corporations are included What are the triggers? When rights and obligations being determined Initially it had to be a true or legal right but this changed with Singh. Now, what matters is a strong interest in the outcome. What procedural guarantees must be met? Fair hearing in accordance with the principles of fundamental justice What does fair hearing/ fundamental justice mean? Its not a fixed standard. It varies nature of legal rights at issue, severity of consequences (Singh) Cases have shown that this may include unbiased decision-maker; meets common law procedural fairness standards including notice and right to be heard. No notice would violate the principles of fundamental justice (785072 Ontario Inc. v. Canada) C. Forcese (CML 2212D) Administrative Law Winter 2006 14 Content of Procedural Fairness The content of the principles of natural justice and fairness in the application of individual cases will vary according to the circumstances of each case (Martineau) The requirement of natural justice always remains the same: that the person concerned be given a fair opportunity to be heard. The consequences of the application of this basic requirement vary, however, with the circumstances. (Gallant) General Observations concerning the content of procedural fairness: The more the delegates decision making function looks like a criminal or civil proceeding, the more the courts will insist on a strict array of procedural protections The more significant the rights or interests affected, the more likely the courts are to require a higher level of procedure The procedural rules imposed should be applied so as to not frustrate a delegates attempts to carry out its statutory obligations Content of Procedural Fairness: Audi Alteram Partem (1st prong of procedural fairness test) At the most basic level, audi alteram partem means: Delegates must always give a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to those parties. More concretely: We know a delegate will owe procedural fairness to someone whose rights, interests, liberties, privileges are potentially affected by a decision the delegate will make For the right to be heard to be real: There is a duty on all delegates who are subject to procedural fairness to give sufficient notice of the decision in giving notice, there must be enough detail about the decision and the arguments

and evidence that interested parties can make a meaningful submission of their own Interested parties must have an opportunity to make submissions Minimum requirements of audi alteram: Minimum requirement - Reliance on extrinsic evidence without opportunity to respond is procedurally unfair (Dassent) Notice requirement Only triggered where procedural fairness owed Telecommunications Workers Union case - Unions interest too indirect; procedural fairness not owed; thus notice not required Sort of notice required Central Ontario Coalition - Test of whether notice adequate (objective): Notice had to be reasonable (reasonable person standard). Must give accurate description of the true nature and scope of the decision. Must be timely. Sufficient notice time given. **Failure to give adequate notice can void the delegates decision. C. Forcese (CML 2212D) Administrative Law Winter 2006 15 Opportunity to make submissions Oral submissions required or are written submissions enough? Quebec Labour: audi alteram doesnt require that there always be a formal (oral) hearing Where are oral hearings likely to be required? Examples from the caselaw: More likely where: 1. The credibility of the parties is a factor in the outcome 2. The affected persons level of education or lack of familiarity with the proceedings affects his or her ability to make written submissions 3. Charter or Bill of Rights interests are at stake Hundal An oral hearing is not required in all cases. At a bare minimum the principles of fundamental justice will require some kind of hearing, even if it involves the most rudimentary ability to respond and to have notice of the case against the person Where oral hearings are required, must they be open to the public? Basic principle that hearings are to be public because it makes for a transparent process, however there are circumstances in which a closed hearing is more appropriate (i.e. national security etc.) Effectiveness and right to be heard Does audi alteram include right to counsel? Counsel not required in parole matters as part of common law procedural fairness. Counsel required by fundamental justice (Charter right - s.7) (Smith) General comments: No universal right to representation in oral hearings before delegates Counsel more likely to be required by procedural fairness: 1. The more complex the legal issues, the more likely a court will require counsel 2. The more serious the consequences, the more likely the court will require

counsel 3. The less capable the person is of representing themselves, the more likely the court will require counsel General comments: Who can be counsel? delegates generally appoint counsel to represent people in administrative functions Role of counsel have right for counsel to be present, but no automatic right to cross-examination Counsel to witnesses sometimes witnesses are permitted counsel also What sort of disclosure is required by audi alteram? variable, depends circumstances Ciba Geigy: The party to whom the hearing relates must be provided with a level of disclosure and production which ensures that the party is fully informed of the case to be made against it. The procedure followed must provide the party to whom the hearing relates a reasonable opportunity to meet that case by bringing forward its own C. Forcese (CML 2212D) Administrative Law Winter 2006 16 position and by correcting or contradicting any statement or evidence related to the case which is prejudicial to its position. To require the Board to disclose all possibly relevant information would unduly impede its work from an administrative viewpoint. Where the delegate is performing a regulatory function with no power to affect right, there is no strict disclosure requirement. Witnesses & audi alteram? Where credibility is at issue or where conflicting evidence is presented. Issue 1: Who can call witnesses? Re Ladney - There must be parity if one side has had the opportunity, the other side must be accorded the same right. Issue 2: Cross-examination of witnesses Innisfil (1981), SCC: - it is not a necessary ingredient of natural justice. There is No absolute right to cross-examination. Armstrong v. Canada (1998): The right to cross-examine...is not an absolute right. Where a statute is silent on the right to cross-examine, courts will generally be reluctant to impose upon a board their procedures and technical rules of evidence. Evidence & audi alteram? Delegates need not apply strict rules of evidence, unless required by statute/regs Generally rules of evidence in an administrative setting are more relaxed because its not court and because lay people are involved. Evidence must support facts or the bottom line Admissibility the evidence has to be relevant Weight hearsay evidence is generally allowed but will depend on the gravity or seriousness of the decision or affect on the person Burden of proof balance of probabilities or clear and convincing evidence (sometimes used in disciplinary matters, i.e. lawyers being disbarred). Effectiveness and right to be heard

He or she who hears must decide & audi alteram? Corollary of the right to be heard is the right to have it decided by those to whom it was presented Patel - Court finds that the second officer never heard the submissions of Patel and only used the first officers notes. This taints the decision and violates procedural fairness. Patel had a right to be heard by the decision-maker. IWA (Consolidated Bathurst) The full board meeting was an important element of a legitimate consultation process and not a participation in the decision of persons who had not heard the parties. For the purpose of the application of the audi alteram partem rule, a distinction must be drawn between discussions on factual matters and discussions on legal or policy issues. C. Forcese (CML 2212D) Administrative Law Winter 2006 17 Ellis-Don The mere fact that issues already litigated between the parties were to be discussed again by the full Board would not amount to a breach of the audi alteram partem rule It would only be a problem if there was a reassessment of the facts, without the parties having a chance to comment Court concludes that there was no reassessment of the facts, but the change in the decision was due to policy considerations. Use of lawyers and/or staff (by a tribunal) A tribunal is generally free to use a lawyer unless this practice is prohibited by statute. However, the lawyers involvement must not create the impression that he or she had taken over the hearing and become the effective decision-maker. Disclosure of lawyer/staff work Armstrong It is open to the Commissioner to have a member of his or her staff prepare guidelines or summarize evidence to assist the Commissioner in fulfilling his or her duties. However, undisclosed comments made by a staff member that do not fall within that staff members background or experience should be disclosed. i.e. creation or looking at new facts not presented. Duty to Give Reasons Why would we want reasons? To provide an opportunity for appeal. How else could you know how a decision was made? Is there a duty to give reasons? No absolute right to receive reasons Canadian Arsenal - In the absence of legislation to the contrary, courts of law, quasi-judicial and administrative bodies are not required to give reasons for their decisions. Williams

There is no duty on tribunals to give reasons where a statute has not specifically so provided, particularly where the decision is discretionary Does the failure to give reasons violate procedural fairness? Requirements depend on circumstances - Consequences of decision and nature of the decision In this case, minimal requirements for fairness & fairness not breached Baker SCC - Procedural fairness is flexible & variable and depends on the context Several factors relevant in determining the content of the duty Nature of the decision being made & process followed Nature of the statutory scheme Importance of the decision C. Forcese (CML 2212D) Administrative Law Winter 2006 18 Any legitimate expectation Choice of procedures selected by agency, etc. What is required here? 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. It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision. Abuse of Process Is there a duty to give reasons? Blencoe Unacceptable delays may at some point amount to an abuse of process, even when the fairness of the hearing process itself has not be compromised To constitute a breach of fairness, the delay must have been unreasonable or inordinate so oppressive as to taint the very proceedings Nemo Judex (2nd prong of procedural fairness) Two Components Personal bias: Partial state of mind not only must justice be done, but the appearance of justice must be done prejudgement or personal ties to the incidents or parties. Institutional bias: Lack of independent institutional arrangements PEI Reference Case security

of tenure, financial independence, administrative independence Personal Bias Must there be actual bias? Reasonable apprehension of bias National Energy Board - ...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he [or she] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. Is this test always applied, or does it vary depending on who the delegate is and what they do? Old St. Boniface Policy questions are always prejudicial, some degree of pre-judgment is inherent. Test: has the decision-maker closed his mind to the extent that he cant be persuaded otherwise? Reasonable apprehension of bias at one end, and the closed mind standard at the other Would a reasonable person well apprised in the facts of the case reasonably appear to be biased C. Forcese (CML 2212D) Administrative Law Winter 2006 19 Save Richmond o A member of a municipal council is not disqualified by reason of his bias unless he or she has prejudged the matter to be decided to the extent that he or she is no longer capable of being persuaded Newfoundland Telephone o Adjudicative bodies are expected to comply with the bias standard applicable to courts: no reasonable apprehension of bias with regard to their decision. While policy bodies have a lower standard of impartiality. i.e. prejudgment to the extent that any representations to the contrary would be futile. _ Examples of bias Statements suggesting prejudgment/bias, Personal relationships, Past involvement and Pecuniary interests Sparvier o Strict standard of reasonable apprehension of bias - A reasonably informed bystander would perceive bias on the part of the Tribunal and this fatally affected the decision. Spence o A person accused is entitled to have their cause determined by an impartial tribunal which is untainted with the knowledge of facts or with a predisposition to a particular point of view which might affect the result. o A breach of the rule against bias will generally result in the statutory delegated authority losing jurisdiction and will render the administrative action void and subject to judicial review. A reasonable well-informed person would have a reasonable apprehension of bias Dulmage o The test is whether there is a reasonable apprehension of bias on the part of a reasonable

person. Energy Probe o The board members interest was indirect and uncertain and too remote to constitute direct pecuniary interest. This would be enough to constitute a reasonable apprehension of bias but not actual bias which was alleged. Institutional Bias Two possibilities: o 1. institutional bias stemming from the behaviour or one or more members of a board (corporate taint) o 2. institutional bias stemming from the very structure of the board that has nothing to do with the words or actions of a board member (lack of independence) Institutional Bias: Corporate Taint Manning Court found that people who had participated in the first proceedings could not participate in the second proceeding because they have already pre-judged the issue. o New commissioners were not automatically poisoned. Courts are reluctant to allow corporate taint because if accepted you would render agencies incapable of doing their jobs. C. Forcese (CML 2212D) Administrative Law Winter 2006 20 Institutional Bias: Lack of Independence (overlapping functions) 2747-3174 Quebec v. Regie Test: whether a well informed person, viewing the matter realistically and practically- and having thought the matter throughwould have a reasonable apprehension of bias in a substantial number of cases Indicators of independence: o Security of tenure, financial security and institutional independence _ Security of tenure secure from interference, no risk of losing employment _ Financial security the person paying the bill is at sufficient arms length _ Institutional independence control over internal procedure in which assignment of people making decisions Ocean Port Hotels argument: the Board lacks security of tenure because the appointments are at pleasure (no cause for dismissal needed). Supreme Court: reverses the Court of Appeals decision o Absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute o When confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunals process to comport with principles of natural justice o But, the degree of independence required of tribunal members may be ousted by express statutory language or necessary implication Bell Canada

The trigger for this case is unclear (no s.7 claim etc.). Because of Ocean Port, this case would no longer stand because effectively you would have no functioning HRC. SCC: o Bell is arguing that the tribunal was both non-independent and partial because of powers the Human Rights Commission was given by the new Act to issue guidelines specifying whether given provisions of the Act applied to classes of cases and violation of security of tenure. o SCC concluded that neither of the two powers challenged by Bell (under the Bill of Rights s. 2(e)) compromises the procedural fairness of the Tribunal **If Bell had won their argument under the Canadian Bill of Rights s. 2(e), it could have overturned the statute because the Bill of Rights is quasi-constitutional and trumps other statutes. Waiver Zundel The applicant waived the right to object to the Tribunals jurisdiction on the ground of reasonable apprehension of bias by not raising the issue at the beginning of the hearing. o As soon as you are appraised of the facts/bias you must object. C. Forcese (CML 2212D) Administrative Law Winter 2006 21 Statutory Powers Procedures Act (SPPA) To whom does the SPPA apply? - Ontario o Applies to all tribunals exercising statutory powers of decision which are required by or under their creating Acts or otherwise of law to hold a hearing for affected parties before reaching their decisions o Components: _ Tribunals one or more persons exercising the statutory power of decisions _ Exercising a statutory power of decision A power or right, conferred by or under a statute, to make a decision deciding or prescribing, (a) The legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or (b) The eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not _ Required by or under their creating Acts to hold a hearing for affected parties before reaching their decisions OR _ Required otherwise by law to hold a hearing for affected parties before reaching their decisions (i.e. common law, Charter, Bill of Rights) _ The SPPA could be precluded if a statute specifically says so o Content _ Key Components: Notice s. 6 reasonable notice and sufficient detail Hearings written hearings, if party objects triggers oral hearing Right to counsel Witnesses & Cross-Exam

Evidence Disclosure Decisions & Reasons Control of Power: 4 Question Approach 1. Who exercises the control? 2. On what grounds is control exercised? 3. What procedure must be followed in seeking to control the exercise of delegated power? 4. What relief can be granted? Who exercises control & by what procedure? Administrative appeals Newfoundland Transport o ***If you are going to appeal, you must rely on the statute and the grounds on which you are appealing must be found in the statute. o Appeals on the record or de novo Appeal board can make the decision over again, i.e. present the whole case again (this is rare, as most appellate bodies just review one point on appeal) C. Forcese (CML 2212D) Administrative Law Winter 2006 22 o Standard of review how aggressively an appeal body can review a lower bodys decision. On matters of fact, the trial court is the trier (Appeal courts do not usually decide matters of fact). Who Exercises Control & By What Procedure? Judicial Review in Ontario Judicial Review Procedures Act (JRPA) o Getting in the door: _ 2.--(1) On an application by way of originating notice, which may be styled Notice of Application for Judicial Review, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. _ Aspects of s.2: Matsqui (1995), SCC: obligation to seek adequate alternative administrative remedies before pursuing judicial review May be inadequate alternative remedy where: scope of appeal insufficient; appellate body lacks necessary power; the appeal is slow, expensive, cumbersome _ Whats a statutory power? S.1: statutory power means a power or right conferred by or under a statute, (a) To make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation, (b) To exercise a statutory power of decision,

(c) To require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing, (d) To do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party. This is broader than the SPPA as the SPPA only is triggered by an exercise of a statutory power of decision while the JRPA is triggered by all these other things listed above. _ What is a statutory power of decision? S.1: statutory power of decision means a power or right conferred by or under a statute to make a decision deciding or prescribing, (a) The legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or (b) The eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not, and includes the powers of an inferior court. C. Forcese (CML 2212D) Administrative Law Winter 2006 23 2.--(1) On an application by way of originating notice, which may be styled Notice of Application for Judicial Review, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. _ Masters Certorari available where violation of duty of fairness. Court found that procedural fairness should apply (serious allegations and hes a public official). Declaration not available because investigation not conducted pursuant to statutory power. It was an administrative task. Royal Prerogative: JRPA not available to review because royal prerogative is not a statutory power. Some dated case law suggested that royal prerogative powers cannot be reviewed at all under the JRPA. o Parties & Standing _ Must serve the Attorney General of Ontario so they will always be a party _ Ss.9(2) says that for the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application (the delegate) _ As a general principle, for other person to have standing, the interests of that person must have been prejudicially affected by the decision o Venue

_ Typically heard by Divisional Court _ S.6(2): leave to be heard by Superior Court of Justice where the case is one of urgency and where the delay required for an application for Divisional Court is likely to involve a failure of justice o Procedure _ Application for Judicial Relief brought by way of originating notice of application _ Must set out grounds for relief and nature of the relief sought _ Procedure to be followed set out in Rule 68 o Powers/Remedies _ Makes minor changes to common law remedies o Appeals _ To the Court of Appeal with leave, in accordance with Rule 61 C. Forcese (CML 2212D) Administrative Law Winter 2006 24 Judicial Review at the Federal Level Federal Court of Canada (FCC) o With a federal decision-maker, you will go before the federal court o Background 1. FCC is a statutory court Everything the FCC presumes to have jurisdiction over must be found in some statute or another, usually the Federal Courts Act (FCA) S. 101 of the Constitution allows the Parliament to create any federal court for the better administration of laws S. 96 feds appoint provincial superior court judges. Provincial Superior Courts - have inherent jurisdiction (presumption that they have jurisdiction over all matters) Federal Courts of Canada do not have inherent jurisdiction. Only jurisdiction specified in the statute. Must trace jurisdiction to a statutory provision. There is concurrent jurisdiction to sue the federal government both in the federal court and the Ont. Superior Court 2. Judicial Review at the FCC Old division of jurisdiction between Court of Appeal and Trial Division based on judicial/quasi-judicial & administrative eliminated in 1992 o How does judicial review (JR) at the FCC work? 1. Over whom does the FCC have Judicial Review jurisdiction? Decisions, orders or other administrative actions of a federal board, commission or other tribunal S.2 of the FCA: o federal board, commission or other tribunal means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the

Constitution Act, 1867 Update: Federal Ethics Commissioner excluded from review 2. What is the scheme for Judicial Review? Ss.18, 18.1-18.5 and 28 of the FCA govern Judicial Review jurisdiction. Define the level of court, the scope of jurisdiction and the powers of the court (remedies). a. What impact does the existence of a statutory right of appeal have? o s.18.5: ...where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision [of a delegate], that decision or order is not, to the extent that it may be so appealed, subject to review C. Forcese (CML 2212D) Administrative Law Winter 2006 25 o Cannot go to FCA is there is a statutory right of appeal under any of those listed above. Must exhaust internal remedies. b. What level of court do we go to? o S.28 assigns Judicial Review jurisdiction over 15 named delegates to the Court of Appeal. o If your tribunal is one of the 15 named, you can go directly to FCA o If delegate not named in s.28 or another statute, then s.18 governs: the Federal Court (Trial Division) has exclusive original jurisdiction to remedies of (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. Concept of originating (or original) and exclusive jurisdiction. Place you start your proceedings (original). Must go here and no where else (exclusive). c. Who may bring an application for JR? S-s.18.1(1): the Attorney General or anyone directly affected by the matter in respect of which relief is sought Includes public interest standing in circumstances where the decision affects a vast number of people and where no one is affected more than another. Public interest standing may be accorded where the applicant has (a) a genuine interest; (b) in a real issue and (c) there is no evidence of others with a genuine interest that could reasonably be expected to

bring a challenge (is there no other reasonable and effective manner to bring this issue to court). d. When must the application be brought? S.18.1(2), application for Judicial Review must be filed within 30 days after decision first communicated e. What procedure is followed? File notice of application In the notice of application, set out: the division of the court; the names of the applicant and the respondent; the delegate who is being reviewed; the date on which the delegates decision was communicated; the relief sought; the grounds to be argued; list of documentary evidence An application for every decision sought to be reviewed C. Forcese (CML 2212D) Administrative Law Winter 2006 26 Name respondent as the Attorney General of Canada. The delegate is generally not named as a party, but can seek leave to have them participate but they are not allowed to defend their decision on merits. f. What are the grounds for review? S.18.1(4) para (a) to (d) error of jurisdiction, fact, law and violation of procedural fairness. (e) a decision of a delegate that has been subject to fraud or perjured evidence (f) where a delegate acts in any way contrary to law (basket clause) g. What are the remedies? S.18.1(3): (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing (mandamus); or (b) Declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate (certiorari) prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal (injunction/prohibition). Declaration is also available. Would also want to include a basket clause such as any other relief the court sees fit to apply. o Summary: 1. Was the decision made by a federal board, commission or tribunal as defined by s.2? (If yes, the FCA is correct, if not wrong place) 2. Is there a statutory appeal available to one of the bodies listed in s.18.5? (If body is listed in s. 18.5 you are statute barred from the FCA, if not must exhaust statutory right of appeal) 3. If there is no statutory appeal or the appeal has been exhausted, is the delegate listed in s.28 or does the delegating statute provide for JR to the Court of Appeal? (If in s. 28 go to FCA, if dont fall in s. 28, default is to go to Federal Court Trial

Division) 4. Do you have standing to bring an application, either because you are directly affected or via the public interest standing test? 5. Are you within the 30 day window? 6. What are the grounds for review? 7. What remedies are you seeking? C. Forcese (CML 2212D) Administrative Law Winter 2006 27 Grounds for Judicial Review Introduction to Grounds for Judicial Review 1. What do we mean by grounds for judicial review? A. Exceeding limits imposed by the Constitution B. Limits imposed at common law i.e. procedural fairness i.e. abuse of discretion C. Limits imposed by procedural statutes like the SPPA and the Bill of Rights D. Exceeding the limits of the statute delegating power e.g. statute gives delegate jurisdiction in Ontario; operates in Quebec e.g. statute gives delegate powers over lobster fishing; regulates deer hunting Possible Grounds Violation of Procedural Fairness (the pragmatic and functional test does not apply here) Abuse of Discretion Errors of Law Errors of Fact Standards of Review considers how much weight is to be given to the delegates decision Patentently unreasonable Reasonabley simplicitor Correctness 1. What is a privative clause? Privative clauses are statutory provisions whose intended effect is to make the delegates decision final and binding, and prevent any review of the delegates decision by the courts Rationale: 1. Reduce protracted delays associated with court action 2. Reduce expense associated with court action 3. Allow matters better dealt with administratively to be dealt with by delegates Example of strong privative clause: o Ontario Labour Relations Act: - 114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes Examples of weak privative clause: o HRC, s.37 (reconsideration): (3) Every decision of the Commission on reconsideration together with the reasons therefore shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final.

o VRABA, s. 31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding. Courts dont accept that privative clauses can remove review for jurisdiction (Crevier and CIBC v. Rifou) C. Forcese (CML 2212D) Administrative Law Winter 2006 28 Jacmain (SCC) (1978): Essentially - Privative clauses protect valid decisions but do not protect invalid decisions from judicial review. Court still feels empowered to intervene because of rule of law (government is not above the law); parliamentary supremacy (executive cannot ignore the dictates of Parliament) **If an amendment was made not allowing review under the Federal Courts Act, still able to go to the Ontario Provincial Superior Court because they have inherent jurisdiction, and then to the Ontario Court of Appeal on appeal. 2. What do we mean by curial deference? Curial deference means deference by the courts to the decisions of delegates Why curial deference? Corn Growers - majority of the SCC held that where there is a privative clause they will only interfere where the decision is patently unreasonable; sometimes the tribunals know their business better than courts do. Distinguishing Between Jurisdictional and Non-Jurisdictional Errors of Law Is the error of law within the pie (intra-jurisdictional)? Or is the error jurisdictional? Once upon a time, there existed clear Errors of Jurisdiction - You never had jurisdiction to begin with the error is so clear o e.g., Defects in Acquiring Jurisdiction _ MacNeill The Appeal Board was a statutory body with no inherent jurisdiction and can decide a matter only if Parliament has expressly or impliedly conferred on it power over the parties, the subject-matter and the remedy. CHRA clearly beyond the express terms of the PSEA. _ Maurice Maurice appointed to the Bench in SK. A complaint lodged against him for when he was practicing as a lawyer. He tries to prohibit the Law Society from regulating because hes now a judge and the Law Society only has powers to regulate lawyers. Maurice person outside jurisdiction of Law Society Clear Error of Jurisdiction no longer exists (says the SCC) 1. First School: Hostility to deference o Anisminic (House of Lords, 1969) _ Because of the approach taken by the Court in the Anisminic case, judges were driven to conclude that there was no difference between an error of law within

jurisdiction and an error of law outside of jurisdiction _ Any and all errors of law now were considered jurisdictional errors _ Correctness test you only have jurisdiction when you get the law right, when you get it wrong, you are outside your jurisdiction _ This meant that privative clauses has absolutely no effect and courts would always review o Justification (from leading text): - also UK approach _ It was designed to ensure that the sovereign will of parliament was not transgressed by those to whom such grants of power were made. C. Forcese (CML 2212D) Administrative Law Winter 2006 29 2. Second School: Extreme deference o CUPE (SCC, 1979) _ Because of boards nature, deference owed sensitive to the unique expertise the board has. Put another way, was the Boards interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? o Real implications of CUPE: Put another way, even where curial deference is owed, a delegate will lose jurisdiction if it acts in a patently unreasonable way 3. Current School: Deference Sometimes o LAcadie (SCC, 1984) _ Distinction made between errors that occur where a tribunal is acting within its jurisdiction vs errors the delegate makes in determining whether it had jurisdiction at all to consider the issue before it _ Patently unreasonable standard has no application once the court has decided that the error in question is one of jurisdiction Two standards (a) if the decision lies on the bounds or outside of the jurisdiction the court will apply a correctness standard and (b) if the decision is within the jurisdiction, the test will be whether it is patently unreasonable or not. o Old approach: preliminary question doctrine (a preliminary question that the delegate asked in order to perform their functions) o New approach: functional and pragmatic approach for distinguishing between jurisdictional and non-jurisdictional errors of law _ Bibeault (SCC, 1988) - The functional and pragmatic test: 1. The wording of the enactment conferring jurisdiction on the administrative tribunal Is there a privative clause? If so, this suggests more deference. Is the clause weak or strong? What does the delegating statute actually say about the powers delegated? 2. The purpose of the statute creating the tribunal and the reason for its existence Intention of the legislature for the board to be efficient, expertise, etc.? If so, more deference. 3. The area of expertise of its members

If they are experts, they know their subject more so than the general courts so, more deference 4. The nature of the problem before the tribunal Is it a question of fact or law or both? If its a question of pure fact, will be more deference and if its a question of pure law, then less deference. _ If the answer to the pragmatic and functional test is that they were operating within their jurisdiction, the court will not intervene unless the decision is patently unreasonable. However, if it lies on the boarder, the court will intervene on the standard of correctness. C. Forcese (CML 2212D) Administrative Law Winter 2006 30 Distinguishing Between Jurisdictional and Non-Jurisdictional Errors of Law Application of pragmatic & functional test: PSAC II The Court then traces evolution of cases: 1. Pre-CUPE no deference was accorded to delegates, and any error of law justified court intervention 2. CUPE patently unreasonable test, when acting in jurisdiction 3. Post-CUPE if in jurisdiction, court will only interfere if decision is patently unreasonable, if outside of jurisdiction, correctness standard Accordingly, the Board will remain within its jurisdiction so long as its decision is not patently unreasonable Meaning of patently unreasonable PSAC II = Clearly irrational - not in accordance with reason CBC (Goldhawk case) Functional and pragmatic test - Delegate highly specialized, broad privative clause, purpose of regime is rapid decisions. Therefore, proper standard of review patently unreasonable What do we mean by patently unreasonable: A decision is a reasonable one if the meaning given is one which the words of the statute can reasonably bear City of Montreal (1997, SCC) Court finds that the order in question was not patently unreasonable look at a few factors when dealing with remedies? Is the remedy punitive in nature, does the remedy violate the Charter, is there no rational connection between the breach and the remedy? Etc. If yes, to these then the remedy or decision would be seen as patently unreasonable. Summary Application of functional and pragmatic approach to distinguish between jurisdictional and intrajurisdictional errors of law Outcome of functional and pragmatic test effectively determines the standard of review jurisdictional errors of law: correctness intra-jurisdictional errors of law: patently unreasonable Spectrum of Standards of Review Emerged first in context of statutory appeals:

New standard (in the middle of the spectrum) Reasonableness simpliciter plain reasonableness Bell Canada v. CRTC (1989, SCC) The jurisdiction of a court on appeal is much broader than the jurisdiction of a court on judicial review (i.e. entitled to intervene). That said, although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise. C. Forcese (CML 2212D) Administrative Law Winter 2006 31 Pezim (1993, SCC) In judicial review, courts have devised a spectrum ranging from patently unreasonable to correctness At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause is deciding a matter within its jurisdiction and where there is no statutory right of appeal At the correctness end of the spectrum, are those cases where the issues concern the interpretation of a provision limiting the tribunals jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question Even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunals expertise Conclusion: having regard to the nature of the securities industry, the Commissions specialization of duties and policy- development role, as well as the nature of the problem before the court, considerable deference is warranted in the present case notwithstanding the fact that there is a statutory right of appeal and there is no privative clause Implications: 1. Confirms curial deference of some sort to be extended to delegates on statutory appeals leaves open the theoretical justification 2. Invokes a concept of spectrum of standard of review Southam Need for a 3rd standard of review: The need especially clear in cases, like this one, in which appeal from a tribunals decision lies by statutory right. The presence of the statutory right of appeal obviates the need to find a jurisdictional error. Because the standard of patent unreasonableness is principally a test for determining whether a tribunal has exceeded its jurisdiction, it will rarely be the appropriate standard of review in statutory appeals. That said, because tribunals typically enjoy some expertise and deal with problems of a difficult and intricate nature, a standard more deferential than correctness is needed. Standard of reasonableness simpliciter - clearly wrong test

Implications: 1. Confirms curial deference to be extended to delegates on statutory appeals 2. Develops concept of spectrum of standard of review Correctness: is the decision right Unreasonableness simplicter: is the decision clearly wrong Patently unreasonable: is the decision clearly irrational C. Forcese (CML 2212D) Administrative Law Winter 2006 32 Spectrum of Standards of Review Extended to judicial review: o Pushpanathan _ In other words, jurisdictional error is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown. 1. Wording of the Act - Privative clause - robustness 2. Expertise the more specialized, the more deference characterize the expertise of the tribunal subject matter compare their expertise with your own expertise a relative measure identify the nature of the issue relative to the expertise the issue must be within the expertise 3. Purpose of Act/Provision polycentric (varied includes policy, laws, facts etc. multi-faceted) vs. adjudicative (rights and responsibilities) issues. If polycentric, more deference and if adjudicative, less deference. 4. Nature of Problem the more its a question of pure law = less deference. However, if the question of law is in the tribunals area of expertise, may be more deferential. Old Approach to Errors of Discretion Abuse of Discretion o Example - VRABA s. 38. (1) The Board may obtain independent medical advice for the purposes of any proceeding under this Act and may require an applicant or appellant to undergo any medical examination that the Board may direct. o Discretion exercised for an improper purpose or on the basis of wrong principles or in bad faith or in a discriminatory fashion, or a failure to exercise discretion because delegate improperly views discretion as fettered o Can the delegate be outside their jurisdiction because they have misused their discretion? Court will presume that the legislature did not intent to allow discretion to be used in bad faith. Abuse of Discretion: Improper Purpose o Multi Mall _ Improper purpose = A purpose no authorized by the statute _ Because the Minister refused to issue permits on the ground that the proposed use conflicts with the official plan in effect in the municipality, he acted upon extraneous, irrelevant and collateral considerations Abuse of Discretion: Bad faith o Roncarelli

Abuse of Discretion: Discrimination o Winton C. Forcese (CML 2212D) Administrative Law Winter 2006 33 Evidence of bad faith: the municipal council acted unreasonably and arbitrarily and without the degree of fairness, openness and impartiality required of a municipal government Discrimination: there must be proper planning grounds or standards to warrant discriminatory distinctions between property owners in the same position Abuse of Discretion: Fettering o Maple Lodge The discretion is given by the Statute and the formulation and adoption of general policy guidelines cannot confine it. There is nothing improper or unlawful for the Minister charged with responsibility for the administration of the general scheme provided for in the Act and Regulations to formulate and to state general requirements for the granting of import permits. It will be helpful to applicants for permits to know in general terms what the policy and practice of the Minister will be. To give the guidelines the effect contended for by the appellant would be to elevate ministerial directions to the level of law and fetter the Minister in the exercise of his discretion. i.e. guidelines being treated as rules o Magee Because the delegate thought that it was obliged to exercise its discretion in a fashion determined by a wrongful understanding of the law, it committed an abuse of discretion (sounds like error of law, but its not) o Pritchard The HRC improperly fettered its discretion by interpreting bad faith in s.34 to encompass all situations where a complainant has signed a release without duress Instead, in exercising its discretion under s.34 the Commission should have considered all the relevant facts of this case to determine whether Pritchard acted in bad faith in pursuing her complaint. By restricting reconsideration to instances where new facts were established, the HRC again fettered its discretion, this time under s.37 Used to be that if an abuse of discretion was made, it was assumed that legislature did not intent discretion to be used in that manner. However, with Baker, courts should now not lightly interfere with discretion decisions. The SCC views these categories of abuse of discretion are inherently deferential. The court will only intervene where the abuse of discretion is extreme, i.e. bad faith, improper consideration. The standard of review of the substantive aspect of the discretionary decision (the decision itself, the outcome). Extended to discretionary decisions: Baker

Discretionary decision at issue 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. A public officer has discretion whenever the effective limits on his/her power leave him/her free to make a choice among possible courses of action or inaction. C. Forcese (CML 2212D) Administrative Law Winter 2006 34 In deciding whether curial deference is owed to the product of a discretionary decision, use the pragmatic & functional test Application of pragmatic & functional test: Weighing the various factors, the appropriate standard is reasonableness simpliciter Court concludes that considerable deference should be paid (expertise, Act confers considerable discretion in the first place) Was the decision unreasonable? Yes, didnt take into consideration the children (improper consideration), so the decision is unreasonable. Implications: 1. Spectrum of standards on judicial review 2. Seems to extend judicial review to the substance of a discretionary decision Standard of Correctness What is an incorrect discretionary decision? A decision that does not have objective criteria (a decision of choice). This doesnt really work. Courts do not rely on the correctness standard on review of discretionary decisions will only review on reasonable simpliciter or patently unreasonable standard. Spectrum of Standards of Review Post-Baker: o Dr. Q. Even with statutory appeals, the SCC is concerned with deference analysis so the pragmatic and functional test is required. SCC found that the lower court didnt get the standard of review right and more deference should have been accorded to the tribunal reasonable simpliciter o Suresh. SCC found that the presence of a Ministerial decision-maker leads to extreme deference and standard is patently unreasonable (a decision made arbitrarily, or in bad faith that cannot be supported by the evidence or where the Minister did not consider the appropriate facts) o The Mugesera (2005) Headache: _ Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act. Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these

provisions, questions of law are reviewable on a standard of correctness. _ Federal Court can review errors of law, means that the SCC has suddenly discovered a statutory standard of review of correctness and thus no need for pragmatic and functional test. _ Shetchley case first prong of the pragmatic and functional test under the language of the statute refers back to the Federal Court Act, which stipulates correctness, and thus one variable will always point towards less deference, so the standard of patently unreasonable may never be found. C. Forcese (CML 2212D) Administrative Law Winter 2006 35 Error of Law on the Face of the Record Once important exception to rule that Judicial Review was about delegates acting ultra vires Certiorari was available to correct an error of law on the face of the record, even though the courts never pretended that the delegate had lost jurisdiction What is error of law on the face of the record? (1) Error of law and (2) this error is on the record. Concept of record: formal order or decision; reasons for decision; pleadings; any other document on which the delegate relies (i.e. on paper and not oral) Error of law had to be apparent on face of record Now more or less obsolete: At federal level, changes in paragraph 18.1(4)(c) of FCA error of law is reviewable irrespective if its on the record Emergence of privative clauses and the concept of curial deference even in the absence of privative clauses standard of review Error of Fact Still room to see error of fact as a separate grounds for review with its own rules? Yes, error of fact still needs to be a separate category because the courts still talk about error of fact as grounds for review and the language in the FCA (s. 18.1) sets out a statutorily prescribed standard of review on whether an error of fact exists. Courts on Judicial Review deferential to findings of fact There need be sufficient evidence upon which the delegate could come reasonably to its conclusion Courts have started talking about delegates loosing jurisdiction where their fact finding is patently unreasonable Note paragraph 18.1(4)(d) of the FCA Creates a ground for review where the decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it Some FCC jurisprudence equates perverse or capricious with clearly wrong (i.e., reasonableness simplicitor) (Mithuri case) Other jurisprudence seems to conflate the 18.1(4)(d) standard with patently unreasonable Some courts have said that the statute dictates the standard of review (correctness) so the pragmatic and functional test is not required, but other courts have said that the test is still required and the language of s. 18.1 of the FCA is to be considered under the first prong of the test.

Bottom line for the courts is whether the finding of fact is clearly wrong and if so, they will intervene. **Prof. Note: the pragmatic and functional test may be disintegrating and it might be a good idea for the legislature to start stating standards of review in statutes easier for everyone!!! C. Forcese (CML 2212D) Administrative Law Winter 2006 36 Remedies Statutory appeal remedies are listed in the statute Judicial review narrow list of remedies available i.e. quash decision and send back to the delegate for re-consideration. Prerogative Writs Certiorari o Scope _ In modern time, general, all-purpose remedy for any ground of Judicial Review o Effect _ Quashing of decision _ Issue of remitting for re-determination Except in clear errors of jurisdiction where it would not be sent back for redetermination because the delegate didnt have the power to make those decisions in the first place In cases of procedural fairness theres no guarantee that the decision will be any different (i.e. if the violation was that no notice was given, then the delegate could turn around, give notice and make the same decision again) In cases of bias or decision was patently unreasonable, court likely to ask for the panel to be re-constituted before re-determination is done. Prohibition o Scope _ Timing: available only where decision not yet made _ While pleading prohibition, usually also pleading an injunction and certiorari. o Effect _ Prevents decisions not yet made _ Available to prevent wrongful assumption of jurisdiction Includes commencing or continuing proceedings contrary to the statute or procedural fairness. Not available to curb or stop anticipated errors of law (cant go into the future) Courts tend to dislike this remedy they like to see the delegate make a decision first curial deference Mandamus o Scope _ Four basic requirements: 1. The function to be performed by the delegate must be obligatory 2. The applicant for the relief is owed the duty individually (not as a member of a general class)

3. The performance of the duty is due (duty is owed immediately) 4. The delegate has refused a demand that it perform the duty (exhaust remedies must ask delegate and they must refuse) o Effect _ Compels delegate to perform public duties (affirmative action) Available for both substance and procedure Would plead Mandamus and certiorari C. Forcese (CML 2212D) Administrative Law Winter 2006 37 Mandamus not available for discretionary powers because its not obligatory Habeas Corpus o Scope _ Brought on behalf of detained person _ In Ontario, Habeas Corpus Act (for civil matters) Provides for a prayer for certiorari in aid of habeas corpus o Effect _ Compels release of improperly detained persons _ Would also plead certiorari _ Court obligated to issue writ on reasonable and probable grounds Quo Warranto o Scope _ Allows applicant to challenge persons entitlement to public office _ Must be purported exercise of allegedly usurped office o Effect _ Person challenged successfully does not have powers of the public office Ordinary Remedies Declaration o Scope _ Court interprets provisions and declares true meaning _ Only on questions of law _ Available by way of action (lawsuit) or judicial review Under the JRPA, declarations only available where there is an exercise of statutory power _ Courts like to have a decision before them, not anticipatory o Effect _ Not binding, but generally observed Injunction o Scope 1. Classified by effect: _ preventive injunctions stop something _ mandatory injunctions compels something to be done 2. Classified by duration _ interlocutory injunctions - temporary 3 prong test in RJR: o Serious question/issue

o Irreparable harm (in the absence of the injunction) _ Harm that cannot be compensated by money o Balance of Convenience (balance of harm between parties) _ permanent injunctions C. Forcese (CML 2212D) Administrative Law Winter 2006 38 Discretion to Decline Remedies 1. Application is premature must wait for a decision (certiorari) 2. Available alternate remedy exhaust remedies (i.e. statutory right of appeal) Could appeal based on the appeal mechanism cant give the remedy youre seeking, takes too long (time), or too expensive etc. 3. Minor error the error is so minor that it doesnt affect the ultimate decision 4. Remedy would have no practical effect the remedy is moot now (circumstances have changed) or even though the delegate got to the decision the wrong way this is the only possible outcome. 5. Failure to object promptly when there is a reasonable apprehension of bias, you must act. Failure to object may be viewed as waiver. At Federal level 30 days. No time limit under the JRPA though. 6. Applicant is bad the violation was due in part to the applicant (contributing) Remedies under the Federal Courts Act s.18.1(3): (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or Sounds like mandamus, (b) Declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. **Would cite this passage in pleadings. Habeas Corpus writ is not available. **Monetary compensation is not available under judicial review. Action for Abuse of Power Tort of abuse of power in Black v. Canada: is there a tort for abuse of power? Yes. - Deliberate misconduct is established by proving 1. An intentional illegal act, which is either (i) an intentional use of statutory authority for an improper purpose; or (ii) actual knowledge that the act (or omission) is beyond statutory authority; or (iii) reckless indifference, or wilful blindness to the lack of statutory authority for the act; and, 2. Intent to harm an individual or a class of individuals, which is satisfied by either: (i) an actual intention to harm; or (ii) actual knowledge that harm will result; or (iii) reckless indifference or wilful blindness to the harm that can be foreseen to result. Tort of abuse of power (misfeasance of public office) in Odhavji Estate v. Woodhouse:

o Misfeasance in public office (this abuse of power), is an intentional tort distinguished by (1) deliberate, unlawful conduct in the exercise of public functions; and (2) awareness that the conduct is unlawful and likely to injure the plaintiff C. Forcese (CML 2212D) Administrative Law Winter 2006 39 o Odhavji Estate v. Woodhouse _ Facts: Odhavji was fatally shot by police. Police did not cooperate with the investigation. Police were statutorily obligated to cooperate with the SIU. Officers are cleared of any wrongdoing. Odhavjis family sues for misfeasance (for not cooperating). Police argued that there is no reasonable cause of action (alleging a wrong not known to wrong). SCC found that there is a tort of abuse of power or misfeasance in public office. Not cooperating with a statutory requirement constitutes this type of misfeasance. Plaintiff must show that the illegal conduct was the cause of the injuries and that those injuries are compensable by monetary compensation.

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