ADMINISTRATIVE LAW OUTLINE Professor McIntyre, Fall 1999

PART A: FAIRNESS
PROCEDURAL FAIRNESS: OVERVIEW Procedural fairness is a free-standing right, its not about outcome or prejudice The remedy for a finding of lack of procedural fairness: Quash you get to have your case heard again A. Is Fairness Due? (Threshold Question): Does the challenger have a right to ANY procedural fairness?

Look at the Knight factors: 1. Nature of Decision is it final (quasi-j) or preliminary?, is it general policy (legislative) or administrative, or specific to individual and fact-based (quasi-j)? 2. Relation of Decision Maker to Applicant for employment, is it master-servant (none), office holder at pleasure (some) or discharge/discipline case (more)?, is there an inequality of fairness?, is there a legitimate expectation?, look at context prison safety, informer, public safety or emergency (less)? 3. Impact of Decision (the more serious, the more fairness owed) is it just an application (hardly any) or a forfeiture of job, property or freedom (lots)?, what kind of freedom is it (prison cases differ)? B. Content of Fairness: Basic requirement is right to adequate notice of the case to meet and adequate/meaningful right of reply 1. Adequate Notice enough time to prepare reply: notice can be vague, look at adequacy of disclosure of particulars, some reasons for non disclosure are not good enough (eg. prison safety, or professional candour) look at difference of who gets the gist only and who gets details 2. Meaningful Right of Reply: oral hearings where credibility at stake, may get right to counsel, right to cross, is there reliance on info not disclosed?, board can exercise discretion on process when Act is silent, no constitutional right to appeal C. Bias: If you are entitled to a hearing, fairness requires the outcome not to be stacked such that your reply is futile by reason of predisposition to one side or another 1. Pecuniary: must be direct and not too remote Prior association depends on context Look at overlap in institutional functions cases 2. Attitudinal bias no need to prove actual bias (appearance of it is enough) and right to unbiased hearing is independent right Difference between pre-hearing (closed-minded test) and mid-hearing (reasonable apprehension of bias), same difference for policy makers and those exercising quasi-judicial functions 3. Institutional bias: difference between full board hearings for policy and where financial or job security may influence decision A. IS FAIRNESS DUE? -- (threshold question) The court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying in (1) every public authority, making an (2) administrative (3) decision which is (4) not of a legislative nature and which (5) affect the rights, privileges, and interest of an individual -- Cardinal (1985 SCC) Unless a decision is PURELY LEGISLATIVE, some fairness is due Purely legislative means: pure policy decision, universal application with nothing at stake personally, where a large number of people are affected equally Pre-Nicholson, you had to show it was judicial or quasi-judicial to get full natural justice (now called procedural fairness) if it was administrative, youd get nothing Nicholson (1979 SCC) changed the law (fairness revolution) it doesnt matter now whether its judicial, quasijudicial or administrative, get some fairness unless the decision is purely legislative Even Cooper (1863) looked at the nature of the interest at stake the decision was a policy one, but fairness attached because no man is to be deprived of his property without being heard

after fairness revolution of Nicholson, unless decision was purely legislative, some fairness is owed Judicial--------------------------- Administrative ----------------------Legislative More Fairness ------------------------------------------------------------ Less Fairness Knight (1990) SCC decided that there were 3 factors that one must look at to decide whether any fairness is owed or not this was a shift to modern fairness thinking: (1) The nature of the decision (2) The relationship between the decision maker and the applicant (3) The impact of the decision on the individual the crt also looked at context and circumstances

1) Nature of Decision Factors Not Supporting Fairness Preliminary Cases Irvine or Factors Which Support Fairness Final or, same effect as if final (inquiry). Individual Cases Abel, Egglestone, Conway Pergammon Press Desjardins Webb Abel Homex Refugee Status OShea (1st stage) Furey (one school) Refugee Status Prison cases Licence revocation Webb Abel Lazarov Desjardins Webb Discipline cases

Emergency General

Cardinal, Martneau Inuit

or

Policy, Legislative

Inuit Sea Sheppard Sierra Club OShea (2nd stage) Desjardins Homex Cdn Assoc. of Importers School Closing Prison emerg. Dangerous offender release Desjardins Hutfield Lazarov FAI (renewal) Irvine Furey Civil service Un

or

Fact finding

or

Fault Finding

Application (gets some fairness) Internal Inquiry No Legit Expectation Emergency

or

Forfeiture

Desjardins Webb Pergammon Press Liverpool Bezaire FAI

Inquiry with External effect Legitimate Expectation

2) Relationship b/w DM and Petitioner Who is DM? - If high powered ind., hearing will be rare Reasonable/possible to have a hearing? High volume of case load? Legitimate Expectation or Custom? Past practice or promise of a hearing? Did Legislature intend consultation process? Type of empt relationship? - Master-servant gets no fairness - office holder at pleasure gets some - Probationary employee Mere Applicant? Does petitioner deserve fairness - do they have dirty hands? Is petitioner vulnerable and hence deserving of protection? Does decision bypass typical protective routes? 2 stage procedures? Conway FAI Immigration cases FAI, Bezaire, Liverpool Taxi, CAP Cdn assoc of regulated Importers (no) Bezaire (yes) Knight Knight Nicholson McInnes Homex Webb Munro, OShea

(3) IMPACT OF DECISION ON INDIVIDUAL

*most important factor

The more serious the impact of the decision, the more likely to get fairness also relates back to individual vs. large group Application (gets little or no fairness) vs. forfeiture where high protection for forfeiture of property, job, professional reputation, liberty There are graduations of liberty (transfer of min security to high max in prison (Gallant) is less serious than from unsupervised parole to re-imprisonment Gough)

SUMMARY: EFFECT OF DECISION ON INDIVIDUAL: Loss of Job Slurs on Professional Reputation Loss of Property Rights 1. Loss of Housing 2. Loss of Welfare Benefits 3. Effect on childs education 4. Non-renewal of privilege 5. Denial of Application Denial of procedural rights Where serious impact 5. Loss of Liberty 6. Loss of Competitive Edge Nicholson, Knight, Munro Hutfield Homex, Cdn. Assocn of Reg. 1. Webb 2. Webb 3. Bezaire 4. FAI McInnes, Desjardins Webb, Abel Martineau, Cardinal Hutfield, Lazarov 6. Desjardins (after getting pardon), Abel 7. Liverpool, Cdn. Assocn of Reg.

Loss of in-hand goods will almost always will get fairness Property, liberty, any quasi-prop such as job/license also very high on list Also includes loss of intangibles although get less fairness 4) CONTEXT/CIRCUMSTANCES Emergency Cases Cardinal, Martineau Legitimate Expectation Cases Livermoor Taxi, FAI

5) OTHER GENERAL FAIRNESS ARGUMENTS If no right of appeal, fairness may be read in b/c there must be some form of accountability Fairness dictates that admin body making decision must be cognizant of all relevant circ, and, as such, petitioner ought to be heard as petitioner know facts best petitioner ought to have opp. to change DMs mind. Public has an interest in the proper use of delegated power by admin bodies. - Wide discretionary power ought to be closely scrutinized to ensure that it is being applied in accordance with fairness - wide scope for abuse.

CASE LAW
(1) THE NATURE OF THE DECISION Is it a Preliminary Decision or a Final Decision? If its a final decision, you get some fairness along the way (but have to figure out where) If its preliminary (eg. recommendations to final decision body or fact-finding investigation), there is something at stake, but also there is a final decision maker later 2-STAGE PROCEDURES The usual 2-step procedure is with the Board making recommendations on facts to a higher decision making body, who has discretion to make decisions on policy grounds Where Brd makes recommendation which will be basis of higher bodys decision, fairness attaches because this is where the real decision is made (Abel, Egglestone) If you get fairness at Brd level, you wont get it at a higher level too (OShea) If you dont get it at Brd level, you will get it at a higher level, but might be limited (Conway) If get fairness at lower level, and higher level takes new evidence into account or something changes along the way, you get right to know new evidence and respond to it (Munro, OShea) Where prelim. decision is pure fact finding or an investigative report to decide whether to go on, little or no fairness attaches (Irvine, Dairy Producers Co-op) (a) Prison Cases Re Abel (1979) Affd Ont.CA (1981) high liberty interest at stake F: Advisory Brd reviews all patients confined in psych inst. after being charged w crim offences and found not guilty by reason of insanity. Brd makes a report re each patient - including recommendations for release - which goes to Lieutenant Gov. BUT Boards word is highly influential (if Board says dont release, Minister wont), so in a way, the boards decision is really final . Applicant wants disclosure of files- esp. report submitted by Brd. Very significant impact - liberty interest the Brds reports are very impt as a good report represents patients only hope of release - so an adverse decision by the Brd = final (Not at issue, but comment that: Ind must know case to meet. But there may be mitigating circ. Producing documents possibly harmful to admin of centre and to patient.) Decision of Chairman not to release records quashed and remitted to brd. Test: the proximity b/w the investigation and the nature of the decision and the exposure of the person investigated to harm are matters of significant concern. Thus, proximity is key. Egglestone (1983) On Div Crt Egglestone requests disclosure of hosp. file under same act as Abel. Chair made an order only permitting his counsel to read it, only in presence of memb of Brd and only on cond. that it would not be disclosed to Egglestone. Egglestone also sought disclosure of psych notes and right to cross-x them. Crt refused notes and cross-X but allowed E to be present when they made their report to Brd. Order strikes appropriate balance b/w rights of patient to disclosure of relevant facts and right of Brd to preserve confidentiality of info in sensitive areas. (safety of doctors) Yet, doesnt Brds order make right meaningless? How can Egglestone be granted meaningful right of reply if cant even know what is in file? How can he reply to allegations, correct factual errors? What is value of him being present at cross-x? His presence will keep doctors honest? Not much of a right the proximity (influence) of the preliminary decision to the final decision is important if it is de facto, in fact final, fairness attaches OShea (1987) Australia F: sex offenders imprisoned indefinitely except for yearly review he was allowed a hearing before Parole Board during recommendations from board board recommended release but Minister said no 2x he wants full hearing with cabinet crt found no fairness owed, he already had it (and Minister cant meet with everyone) No hearing before Cabinet; get fairness there only if new facts come in Even though ultimately a policy decision, still get fairness b/c it is about fate of one ind. Arguments that it is unrealistic to give ind opp to present submissions on high level of general policy do not apply when the policy impacts upon an ind/is closely related to the circ of a particular case Mason J.

(b) Discipline Committee Cases: Munro (1993) Sask.CA 2 Stage process of discipline in which the discipline committee of Sask Teachers Fed. makes recommendations to Exec. Committee who, on basis of DCs report, recommends to M of Educ. to adopt or recommend discipline committees recommendation. Minister has discretion. Exec Ctee bound by Discipline Committees fact finding. Discipline Ctee recommends suspension. Exec recommends cancellation of teaching certif. where a shift in recommendations, claimant entitled to know why shift made and entitled to have input ought to have given Munro copy of discipline ctees report/recommendation and opp. to address issue of sanctions. (c) Hospital Cases Conway (1991) Ont. Div.Crt LGs review board makes recommendation to LG re applicant the patient seeks a hearing with the LG at this stage crt held that he was entitled to a copy of the Boards report and opportunity to make written submissions to LG, but no oral hearing because the LG was the decision maker Cant tell if court said Conway has right to se report and right to make written submissions: (a) in general OR (b) only in circumstances where report is biased Pergammon Press (1971) Board of Trade Investigation into affairs of PP. PP wants transcripts of evid of W, opp. to cross-x and opp. to respond. Inquiry is not a court of law. Inquiry = investigation in public interest. But, results of inquiry may have significant repercussions (could ruin reputations, careers, lead to judicial proceedings, expose persons to criminal prosecutions or civil action). Investigators must act fairly, must give person opp for reply and at least an outline of charges against him. (d) Investigatory Cases Irvine (1987) SCC Combines Investigation Act 2 stage process hearing officer conducts an internal inquiry and submits report to Commission who decide whether or not to hold a public inquiry based on the report the investigation is as preliminary as it gets, no proximity to final decision (s.5(2) Public Inquiries Act mandates no finding of misconduct against a person in any report of a commission after an inquiry UNLESS that person has reasonable notice of the substance of the alleged misconduct AND was allowed full opp to be heard during the inquiry. Irvine asks for more proc fairness at investigatory stage. ct eval the character of the proceedings, nature of the resulting report, circulation of report to public, penalties that may result from process/report RULE: where the decision is (a) purely investigatory (fact-finding only) (b) in an investigation that may go nowhere, (c) entirely prelim and (d) completely private, no fairness or minimal fairness is required (because the decisions that count happen later). Key: proximity of investigatory/recommending body to the ultimate decision-making process. Dairy Producers Co-op (1994) Sask QB HR commission appointed officer to investigate complaints of workplace harassment Investigating officer gathers evidence to see whether a case can be made out recommendation is non-binding. Recommended hearing to HRC. HRC mandated to try for settlement, gave Dairy Prod full details of complaints and evidence. Didnt get full report. Alleged breach of proc fairness. Holding: where report of investigator doesnt affect rights, there is no fairness owed. However, once 2nd step is taken (i.e., establishing a Bd of Inquiry) then theres a duty to provide applicant with the substance of the evid against before any hearing (inform applicant of case against it, and allow opp for responding representations or submissions).

Little or no fairness at the application stage particularly where policy or discretion involved, whereas fairness kicks in over same benefit on forfeiture (Desjardins, Webb) but note exceptions (Huttfield, Wilson) APPLICATION CASES McInnes (1978 Eng. Ch.) -application loser case boxer applying for mgmt license from Boxing Bd of Control and was refused, didnt get reasons plaintiff sought reasons and to respond, OR right to oral hearing mere application doesnt get fairness all policy, lots of discretion - no reqmt to even give gist of reasons for refusing application. Desjardins (1983) FCA applicant can apply to Cabinet for a crim. Pardon. Cabinet has NO duty to fairness at this stage because pardon not a right, just privilege based on Cabinets policy decision But once pardon granted, fairness attaches and cant be revoked (since here there is specific fault-based analysis, not just policy) = forfeiture. Act require person to be advised of facts and given opp to explain them Webb (1978) Webb on social assistance b/c of which she gets to live in public housing. Owner of property wants her evicted b/c of problems with her kids. Bd of D of Ont. Housing Corp approved. Webb made an application for review of Bds decision. Concerned forfeiture of housing decision to grant benefit of subsidized housing owned no duty of fairness, but taking this benefit away once granted gets fairness duty of fairness required when taking away benefit of housing since decision with very serious impact (put her on streets) investigation and decision is fact driven and fault based Duty of fairness required b/c: fault-finding that her kids were bad decision with very serious impact - put her on streets no other alternatives are open to her fairness is esp. impt to those most vulnerable who need protection from arbitrary and unconscionable acts of public authorities. investigation and decision is fact driven and fault based. BUT while fairness was owed it was equally met. She received several warnings about her kids and supposedly did nothing. For unfairness to exist, would need evid that she did not know of components or that she answered them and answer was not considered. if it had been an application, no duty of fairness b/c its prelim. But once accepted as resident cant be booted out w/o fair process. Hutfield (1986) -also specific to individual application case Doctor applies for residency privileges at hospital. Application rejected again and again at level of decision marker (hospital board, appointments committee). Hutfield wants reasons why he was denied, Fairness due: denial of disclosure casts slurs on professional reputation and financial stability (material impact). public interest involved: rejection affects ability to treat patients ct protecting interest not just rights. Sufficiently serious interest and conseq serious impact allows for proc fairness. RULE: If an admin bodys (1) decision will (2) modify, extinguish or affect a right or interest of a person when that persons rights or interests are being considered and decided upon in a way that is (3) in law or for practical purposes final subject to appeal, must adhere to procedural standards the precise nature of which will depend upon nature and extent of right or interest. Lazarov -application winner case application for citizenship denied. Applicant must 1st satisfy criteria but Secretary of State has discretion to grant of withhold. Application denied b/c of confidential RCMP info. got fairness since decision fact and individual based Is it a General/Policy Decision (Legislative) or Specific to the Individual and Fact or Fault Based? Where application refused not on policy but for reasons particular to applicant, importance of citizenship, give the applicant right to know suff. info on the grounds for denial to properly respond. Gist is good enough. Must have fair opp to state position, dispute or explain 8

General/policy decisions are usually legislative, and so fairness is not owed Whereas decisions specific to individuals where fact or fault-based have fairness owed GENERAL/POLICY govt decisions: by-laws, policies, quotas Inuit Tapirisat (1980) SCC Act gives Cabinet CRTC wide discretion to amend or reject CRTC recommendations on policy Inuit opposed rate increase to CRTC hearing & lost. Appeals to Cabinet. Inuit, Bell and CRTC make submissions to Cabinet, Inuit only got Bells submissions, not CRTCs. crt held no fairness owed because decision was purely legislative TEST: 1. Nature of body considered: executive branch is inherently entitled to rely on staff, ministerial advice on policy issues 2. Practicality of situation: couldnt give notice or oral hearings to all parties, logistically impossible. 3. Legislation: did legislature intend procedural fairness? Whats the scope of the legislative authority? gave Cabinet broad powers to deal with policy concerns 1. Subject matter: not individual based or fault attached (no stigma, just higher bills) Cabinet can only be reviewed/fairness required when: decision affects specific individual, decision not purely legislative statute does not give broad discretion Sea Sheppard (1984) BCSC wolf kill program deemed to be too general no specific applicant, no fault, no fairness affects a broad spectrum of public in a generally undifferentiated manner Sierra Club (1984) BCSC case about cutting timber when a public interest group applies for fairness since just public interest group, not directly affecting an individual Desjardins (1983) FCA no duty of fairness at first stage of procedure since Cabinets decision for a pardon is entirely in Cabinets discretion and entirely based on policy considerations but once pardon granted, fairness attaches and it can only be revoked for cause per s.7 - b/c at this stage = specific fault-based analysis, not just policy. Act require person be advised of facts & Given opportunity to explain them. Homex (1980) SCC -specific to individual (ad hominem) Homex bought land but refused to follow through on original owners promise to service all new lots. City passed bylaw to prevent Homex from too much development (not just checkberboard to avoid servicing requirement). Homex sought certiorari and right to reply as new by-law denies Homex he right to develop the land and they didnt get a hearing. Fariness owed: 1. Crt found that even though it looks legislative, in substance its not general policy since it affects one plot of land (very specific) its retroactive, specific to one person and one property (ad hominem). BUT majority denied relief though because of conduct of Homex didnt come with clean hands said remedies for abuse of public power are discretionary (rare case). Certiorari is equitable remedy which can be withheld NB Dickson J awarded Homex proc fairness. Bezaire (1992) On. DC School board decides to close 9 schools because of finances no consultation with parents before decision made, where there was Bd and Ministerial policy to consult them the relationship was shaped by a legitimate expec and therefore fairness. Parents win participatory rights. Policy has serious impact on children. even though pure policy decision see nature of decision and serious impact Traditionally, there is no duty to act fairly in using administration power to close school - pure policy. But ministerial and Bd guidelines established a condition precedent to valid decision of community consultation which Bd didnt follow. 9

Cdn Assoc. of Regulated Importers (1994) FCA M alters quota distributions for importing of hatching eggs and chicks affects historic importers (big prop loss). Importers seek judicial review for non-consultation. Government argues policy. Crt said policy not specific to individuals and not fault based it affected 38 people, so still policy (on the edge) Principles of natural justice dont apply to a setting of a general quota policy. Legislative, policy decision. Any appropriate remedy should be political, not legal Cant impose a public consultation requirement on M when no such thing was contemplated by the legislature! BUT remember Cooper v. Bd of Works: Court can read into statue the duty of fairness (court can supply Parliaments omission). This is the only decision on a finite # of people: 38 - doesnt ground a claim. Other cases of general policy are: school closing cases (Bezaire but serious impact decision and legit. expec), prison emergency cases, and dangerous offender releases Most cases that are quasi-judicial where cut with little policy, have fairness owed for eg. most professional discipline, prison transfer or parole, license revocation SPECIFIC TO THE INDIVIDUAL fact or fault based

Desjardins at second stage, where revoking a privilege of a pardon, it is specific and fault based, and therefore, fairness is owed required to give disclosure of the facts Martineau (1980) SCC Martineau = prisoner disciplined w/out a hearing. But prisoners without right to appeal. Lower crts held no fairness b/c brd not deemed judicial or quasi-judicial Brd is not a crt but doesnt mean no fairness owed. -- Certiorari is sprung loose from natural justice and is a remedy for any pro unfairness Whether fairness owed = Circumstantial; emergency is not enough of an excuse In this case clear unfairness with serious consequences, Martineau gets fairness. Rule: 1) non-judicial decisions do carry a duty to act fairly; (2) fairness involves compliance with only some of the P of natural justice (content of fairness is fact specific).

Furey (1991) Nfld.CA School Bd decides to close elementary school down w/o consultation w/ parents of affected kids.. Parents sek to quash. 2 yrs prior parent sinvolve din deicsion to consolidate schools. Dept of Ed guidelines call for consultations. Nfld SC: 1) decision = administrative, not legislative b/c its specific (singular and final) Knight factors (sig impact, direct relationship b/w Min and affected group, nature of decision = final and binding). 2) practice of consulting the public did have effect of creating a legit expectation that the Bd was operating under guidelines which allowed proc fairness. Thus order for certiorari granted. Nfld CA: 3) process was administrative (b/c about one specific school) and not legislative. But denies fairness b/c not legit expectation of consultation (no evid parents actually believed past practice would be followed). 4) But if administrative, then fairness should attach! case important b/c links legit expectation with doctrine of estoppel see legit. expec. Lazarov (1973) FCA -application winner case application for citizenship denied where application refused not on policy but for reasons particular to applicant, importance of citizenship, applicant has right to know sufficient info on grounds for denial (gist is good enough) Administrative decisions where cut with policy (eg. prison emergencies, dangerous offenders release, zoning) FAI Insurance (1982) Australia Cabinet w power to renew insurance providers license to provide workers comp. FAI, had license for 20 years, but warned to improve. It didnt. License was not renewed. FAI sought declaration of right to be heard before license revoked. FAI won on ground that: entitled to hearing before livelihood denied had a legitimate expectation of a fair hearing (past practice) 10

not impossible for Cabinet to have heard them.

Liverpool Taxi (1972) QB CA forfeiture Taxi drivers told that if government ever changes K of # of taxi licenses available it would inform them first and give them an opp to be heard. Of course, it did and it didnt inform them. Taxi drivers had a legit expectation of a hearing expressly promised see legitimate expectation

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(2) THE RELATIONSHIP BETWEEN THE DM AND PRACTITIONER Is it an employment relationship? For master-servant relationship, there is no fairness because it was private For office holder at pleasure (Knight) and probationer (Nicholson), get some fairness For cases requiring no discipline or discharge without cause (Paine and Law Society discipline cases), there is high fairness For pure cut-back cases in employment, little fairness (pure policy) Knight (1990) SCC -also seriousness of impact Bd of Education didnt renew K of Director of Educ. brings action since no notice and no hearing (he is office holder at pleasure since political appt. pure discretion) duty of fiarness does not depend on doctirnes of employment law but on fact that Bd of Ed = public body. Factors to determine if fairness due: (1) nature of decision (2) relationship between DM and petitioner (3) effect of decision on indiv (4) context/circumstance Fairness owed b/c: 1. decision was final and specific to individual 2. employment relationship had strong statutory flavour (i.e., to what extent is the position created by statute; and does the statue set out the duties and responsibilities of the office holder at pleasure). Ct said there is entitlement to fairness for office holders at pleasure when they lose their job it ensures awareness of all circumstances, should at least have opportunity to process 3. very serious impact on indiv - losing job 4. Although there is a duty of fairness, it was met! Knight simply lost at negotiations no structured hearing reqd if indiv had knowledge of reasons for dismissal (both sides had suffic opp to hear each others concerns/reasons) communication of general reason is suffic -- no need for full and complete disclosure of all reasons (b/c BD still has discretion) Nicholson (1979 SCC) -also seriousness of impact probationary police officer doesnt get same rights as police officers when being disciplined officers got hearing and right to appeal, probationer got nothing Brd after 15 months didnt renew K, without reasons crt said losing job during probationary period is not the same as losing permanent job, so board has some discretion, but must act fairly should have been given some explanation and some right to appeal. ct will read in fairness depending on the circumstances looks to the seriousness of the outcome (job loss) Paine (1980) -also case of attitudinal bias denied tenure for teaching fairness attaches since need cause to terminate but case really about bias Where there is an inequality of bargaining power, there is extra fairness needed Webb fairness also owed because of serious impact of decision fairness is especially important to those most vulnerable who need protection from arbitrary and unconscionable acts of public authorities here she would be kicked out on the streets she is on social assistance and relies on public housing Is there a high volume of cases? as a practical matter it diminishes fairness obligation (Mathews v. Eldridge (US)) but administrative convenience not enough to satisfy s.1 -Singh

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Is it a case of Legitimate Expectation of a hearing? There is a legitimate expectation created: if the decision maker made an express undertaking to consult or hold hearing prior to decision, or has established a past practice of doing so, or is bound by policy dictating consultation Liverpool Taxi (1972) QB CA taxi drivers told that if govt ever changes K of # of taxi licenses available it would inform them first and give them an opportunity to be heard it did and didnt inform them taxi drivers had a legit expectation of a hearing expressly promised Council of Civil Service Union (1985) HL -also issue of national security 40 yr past practice of consultation with union before employment conditions altered then order made without consultation legit expectation arises from an express promise or from existence of practice which applicant can reasonably expect to continue the legit expectation warrants consultation, but issue of national security trumps Bezaire (1992) On. DC school board decides to close 9 schools because of finances no consultation with parents before decision made, where there was policy to consult them the relationship was shaped by a legitimate expec and therefore fairness even though pure policy decision see nature of decision and serious impact Furey (1991) Nfld CA school board closes one school down without consultation with parents parents involved in decision to consolidate schools 2 years prior and guidelines of dept of education calls for consultations CA said process was admin (one school) and not legislative but denied fairness because no legit expectation of consultation (no evidence parents actually believed past practice would be followed) strange decision, if admin, fairness should attach

Old St. Boniface (1990) SCC Residents Assoc. claims it had the expectation that there would be no further zoning developt until new city plans in place - a process in which they expected to participate. Legit expect. doctrine only affords a party affected by decision of a public official an opp to make representation in circ. in which there otherwise would be no such opp. Thus no claim b/c of all other procedural protections provided for in legislation Canada Assistance Plan (1991) SCC -current Canadian law on this CAP authorized fed govt to enter into agreements with prov. for sharing costs of prov. social assistance program statute provides 1 year notice before agreement can be terminated got no notice prov. challenges Bill, not just on no notice, but that they had a legit expectation of being consulted and that feds couldnt change Bill without provincial consent Sopinka said cant use legit expec to achieve a substantive outcome, can only get hearing entitlements (will use it if no other basis for fairness) right to a hearing not available for purely legislative decisions doctrine cant prevent govt from introducing legislation Council of Civil Service Union (1985) HL -also issue of national security 40 yr past practice of consultation with union before employment conditions altered then order made without consultation legit expectation arises from an express promise or from existence of practice which applicant can reasonably expect to continue the legit expectation warrants consultation, but issue of national security trumps Aurchem (1992) FCTD used doctrine of estopped to find that past practice of accepting applications in other than stat-required form required notice before stat. could be applied. Kioa (1985) Aus. 13

Legit expectation only valid claim if DM knew of applicants expectation - had expressly promised or induced a reliance in indiv then legit expectation claim valid. Sunshine Coast Parents for French v. Sunshine Coast School District (1990) BCSC seems to suggest that only those who are aware of prior consultative practices can actually rely on those practices to generate a claim of legitimate expectation affirms idea that legit expectation does not apply in circumstance of legislative decision making. We can also look at CONTEXT under this heading important in prison safety, informer safety, national security (Council of Civil Service), public safety, emergency all cases have less fairness owed due to the context of the situation since immediate action needed or because of factors involved EMERGENCY CASES Sometimes nature of situation requires immediate action w/o a hearing. emergency, national security cases can affect amount of fairness owed. Martineau & Cardinal & Gallant set out this principle. When emergency no fairness owed in the moment but, to adhere to pro. fairness requirements, the action must be: interim open to subsequent hearing (Randolphe(1966) SCC p.74) Council of Civil Service Union (1985) HL -also issue of national security 40 yr past practice of consultation with union before employment conditions altered then order made without consultation legit expectation arises from an express promise or from existence of practice which applicant can reasonably expect to continue the legit expectation warrants consultation, but issue of national security trumps see also Chiarelli

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B. CONTENT OF FAIRNESS Once you are entitled to fairness, then the basic requirement is the right to adequate notice of the case to meet; and adequate/meaningful right of reply it is essential not only to prevent abuses by people making false accusations but also to give the person assurance that she is not being dealt with arbitrarily or capriciously Gough (1) ADEQUATE NOTICE Elements of Adequate Notice: a) form is usually written not oral b) manner of service c) time d) content: should be clear, unambiguous, sufficiently detailed. Should not misrepresent case/facts or be ambiguous. (b) Manner of Service: If decision affects a large and indefinite # of people in indeterminate ways - public notice will probably be sufficient. (Hydro giving notice to people in Eastern Ont via newspapers circulated in area with some personal notice to municipalities & ind = suff. Joint Brd and Hydro (1985) ONCA). The Southwestern Ontario case had a defective notice as the area described was less certain than the Eastern Ontario case. (c) Time adequate notice to frame a reply? depends on nature of interests and issues Esp. if right to appeal has a time limit, notice must be sent in time to allow ind to prepare for appeal. If poor method of service is chosen (mail) should not deprive ind of right to appeal. (Winnipeg v. Torchinsky (1981) Man QB) In fact, Rymal (1981) ONCA suggests that there can be JN taken of late mail - should not deprive claimant of their rights. (d) Content notice cant be misrepresentative you should always know notice is directed towards you Central Ont. Coalition notice cant be ambiguous or vague it must state potential outcomes/penalties which could arise to understand whats at stake and importance of attendance/participation (Taylor, Chester) Adequacy of Disclosure of Particulars of the Case to Meet To a large extent, whether you are entitled to no more than the gist or need detailed particulars follows from the analysis of the threshold question a decision barely across the threshold from purely legislative will get you the gist only (Knight, Nicholson, school closings) a decision with serious potential impact based on facts or fault will get you details (professional discipline, sexual harassment, fraud, non-renewal of long-standing license, parole revocation) big individual impact decided via policy will likely fall between (for eg. most prison transfers) big impact but in context of investigation wont secure trial-like process (Masters) Situations where reasons for non-disclosure will not wash: privacy or chill on witnesses (Northwestern Hospital, for racism charge) general prison safety not demonstrably at risk (Gough, Gallant) chill on professional candor (Napoli) by contrast with impairment on patients well being (Abel) Party is entitled to know what evid and representations have been given and is entitled to an adequate opportunity to respond. Bd cannot consider information which was not put to it w/o claimant being present and/or w/o claimant knowing of this info and having opportunity to respond. (Discipline hearing of Univ Prof. Additional info given to Board at dinner by Univ. President. Kane v. UBC (1980) SCC. Similar to Munro) Thus, clearly, notion of full disclosure is already part of fairness set out in Nicholson, but issue here is required degree of disclosure -- Do claimants get level of info normally granted in civil litigation & crim proceedings (Stinchcombe)? What degree of disclosure is required to meet duty of fairness? 15

(i) Cases where you get more than the gist OHRC v. Northwestern Hospital (1993) Ont. DC complaint of racial discrimination made by nurses against a doctor the board of inquiry ordered to give hospital all statements made by the complainants and identity of all complainants it was argued that disclosure would discourage the victims from making complaints if they knew their original statements might be carefully scrutinized later (Chill factor) the court said that these are serious allegations and the complainants should realize that these allegations are serious and should be made that way therefore, privacy of witnesses not enough to stop full disclosure in serious allegation and impact case Napoli & Workers Comp Brd (1981) BCCA N awarded only 5% disability pension so appealed he got a 4 page summary of his file but board declined to disclose his medical reports on file. the court stated that the files ought to have been disclosed the summary was inadequate the medical reports contained several damaging statements and serious allegations made to WCB from medical experts of their opinions. He should be able to respond to them (how can respond when he doesnt know exactly what he is responding to?) Credibility at issue. the court stated that since Ns future is going to be shaped by tribunal decision, a high standard of justice is required therefore, professional candour of experts does not stop full disclosure in serious impact, individualized fault/fact based case Re Abel ( (1979) Ont. D.C. affd (1981) Ont .CA advisory board reviewing psych patients and making report to LG including recommendations for release applicant wants disclosure of files (especially report submitted) crt said there was a serious liberty interest at stake high impact crt also said brds decision really final report important and should know case against him but mitigating issues where producing documents are harmful to the administration of the centre and possibly detrimental to the patient so some disclosure given, not all liberty interest gives disclosure, but detriment to patient and centre limits the scope of the disclosure (not full disclosure) Gough (1990) FCTD (also a s.7 case) G on liberal parole for past 5 yrs because of complaints, parole suspended and revoked at hearing, details and places of alleged incidents or names of victims never revealed b Parole Board. G seeks to quash per s. 7 due to nondisclosure court said there was a high liberty interest here (s.7, fund justice operates on a spectrum varying with circumstances) since conditional but close to unconditional the court also noted how it didnt make sense that if charged criminally, hed have more rights (full hearing) s.7 infringed by refusal to provide him with confidential info upon which Bd was relying. No justification: Bds decision quashed crt said the assertion of prison and inmate safety was not enough here you just cant assert it every time (there will always be a security concern) G has right to full answer and therefore full disclosure ct rejected arguments that plaintiff doesnt require disclosure b/c already knew the case against him to enable him to respond intelligently. therefore, because of high liberty at stake, prison safety, when not a serious concern, will not stop full disclosure RULE: entitlement to know and respond is essential to prevent abuses by people making false accusations and to give accused person assurance that hes not being dealt with arbitrarily or capriciously. Administrative convenience doesnt justify denial of justice. *contrast with Gallant

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Masters (1994) On D.Crt Masters accused of sex. harassment. Investigation conducted and Masters was reassigned to another position. Masters claims loss of right to cross W, no list of W, no copies of notes... got more than the gist entitled to know case to meet- but not a full hearing office holder at pleasure, like Knight but because of serious impact on job and reputation and individually fault based entitled to more than the gist But, trial-type hearing is NOT mandated/necessary: no active steps taken to hinder Masters case Masters counsel provided w an opp to interview the emp who wished to be questioned Masters given final right of reply to completed report - knew case against him Masters given right to reply to all additional details. Master thus given more than necessary - opp to know allegations against him and to state his case before the Premier considered the matter. Also recognizes importance of tailoring the procedure to protect his complainants. Other cases where you get more than the gist include all those cases under the threshold question where the impact of the decisions were serious, and the nature of the decision was specific to the individual (fact or fault based) BUT you must always take into account the context of the situation which might reduce your right of disclosure to just the gist (ii) Cases where you JUST get the gist (or maybe a little more) Gallant (1989) FCA (also a s.7 case - key case in looking at Charter effect on administration law; identity of sources) G was prison inmate suspected of drug-dealing and extortion Warden wanted to transfer him to high security pen. he was given notification of claims but nothing specific enough to be able to refute the claims the claim was very general to protect his sources. At issue: what disclosure is required? Is s.7 violated? Pratte: said fairness owed because liberty reduced (s.7 infringed), with so grave an outcome more disclosure is needed to meet principles of f.j. but s.1 saves it because of the circumstances (prison/informer safety and liberty not fully at risk). Marceau: said there is a liberty interest, so fairness owed, but when looking at fairness you must look at the context/ circumstances. Because of prison and inmate safety, no further disclosure was possible, so s.7 not infringed (no deprivation of fairness) said content of fairness varies with circumstances (must always be looked at when looking at how much fairness owed) here they met the requirement: not as much fairness required when just transferring an inmate from one prison to another. Decision to transfer not based on indivs innocence or guilt but value of info from sources. If purpose were punitive, more particulars wouldve been required. (McIntyre likes this decision makes more sense) Desjardins (dissent) said serious impact so entitled to more fairness why should we trust informants. Because of serious concerns of prison safety (and reduced liberty at stake), you cant get full disclosure *contrast with Gough Egglestone E requested disclosure of hospital file under Mental Health Act (like Abel) Chair made an order only permitting his counsel to read it, only in the presence of member of Brd and only on condition that it would not be disclosed to E E also sought disclosure of psych notes and right to cross-examine them he was refused notes and right to cross but could be present when report heard order struck appropriate balance between the rights of patient to disclosure of relevant facts and right of Brd to preserve confidentiality of info in sensitive areas (safety of doctors) full disclosure not allowed because of circumstances, but still had some right to disclosure for right of reply (not full disclosure) Lazarov application for citizenship application was denied because of confidential RCMP info application refused not on policy but for reasons particular to applicant the applicant has right to know sufficient info on grounds for denial to properly respond crt said that the gist is enough to give fair opportunity to state position, dispute or explain if agency is simply carrying out its regulatory function, and admin proceedings are not similar to crim case NO disclosure just because info sought is relevant parties entitled to facts which will be relied upon in order to prepare their case, but not entitled to anything more 17

must be express statutory authority to make pre-hearing discovery orders (eg. Cdn Pacific Airlines (1993 SCC) labour relations brd without such power at investigative stage) but authority can be found in SPPA s.12,s.8) SPPA s.12 trib have authority to require any person to produce in evid documents and things specified by the tribunal relevant to the subject matter of the proceedings and admissible at a hearing. SPPA s.8 When the good charac, propriety or conduct or competence of a party is an issue in a proceeding the party is entitled to be furnished prior to the hearing w reasonable info of any allegations w respect thereto.

other cases where just entitled to the gist include purely legislative, administrative, or policy decisions (eg. Knight, or Nicholson), where no serious impact on individual or if so when policy based and not fact or fault based

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(2) MEANINGFUL RIGHT OF REPLY A meaningful right of reply could include the following: 1. oral hearings (where credibility at stake Singh) 2. open hearings presumed that way 3. right to counsel (factors determine it Howard) 4. right to cross-examination tends to go along with oral hearing Other areas attached to meaningful right of reply include: 5. reliance on information not disclosed 6. where Act is silent on process available 7. denial of statutory right of appeal 8. unfair delay 9. evidence issues 1. Oral Hearings The main argument is that oral hearings are needed where personal credibility is at stake Singh, but where this is argued, you have to explain why credibility is at issue If have received pro fairness and used pro fairness available to you and never asked for oral hearing or had an legit. expectation of one, cant claim oral hearing as last ditch effort. (Lloyd v. McMahon (1987) Eng HL -54) also see Hundal below You wont get a full hearing for everything and there is always a trump card public safety court reads with or without hearing to mean full hearing see case below Hundal (1985) BCCA H had terrible driving record license suspended right of superintendent to suspend on public interest, with or without hearing he said liberty interest infringed H lost he waived his rights to individually challenge tickets when on probation he didnt protest, so a hearing would have added nothing he also had a right of appeal and could exercise that right In this case, driver had plenty of warnings and did not use his rights (see above). All reasons for fairness in this case are minimal. Also can use public safety as trump card (Pratte in Gallant: suspended w/o adequate notice, so infringed s. 7, but saved by s. 1 for public safety). Masters (1994) Ont.DC *this case qualifies Singh office holder at pleasure complaints of sexual harassment from 7 women (45 witnesses interviewed) didnt discharge him, but transferred him investigation concluded women harassed M replied, investigators reexamined, then M allowed to respond to them in writing not given names of witnesses (so he could interview himself) and examiners, interviews not in presence of his lawyer, wasnt given questions asked or transripts he wanted to cross-examine them crt said there is fairness owed even though office holder at pleasure since individual fault finding affecting job and reputation so oral hearing given qualifies Singh credibility is at stake, so oral hearing required at some point in hearing but this is not final word it all depends on what is at stake and whether its an investigation only you must go through facts to distinguish it you might need only oral or only cross, or both in this case, M was given right to reply to completed report (knew case against him) and given right to reply to all additional details he had the opportunity to know the allegations against him and to state his case before the Premier considering the matter also said full hearing not needed cant cross examine it is an investigation, not an adjudication 2. Open Hearings Hearings are presumptively open s.9 SPPA Sometimes privacy interests favour closed hearings Prof. discipline hearings often closed to protect members reputation

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3. Right to Counsel This right only matters when have an oral hearing, since when you have a written exchange hearing, no one can stop you from using a lawyer Howard v. Stoney Mountain (1985) FCA H was inmate of Stoney Mountain with 5 charges against him-when appeared before discipline committee he was denied counsel s.7 challenge under s.7, had to determine if inmate had opportunity to adequately present his case crt said right to counsel exists under some circumstances, disadvantaged individuals particularly need to consider: seriousness of charge and of potential penalty whether any points of law likely to arise capacity of a particular person to present his own case (literacy level..) procedural difficulties need for reasonable speed in making adjudication need for fairness between prisoners and between prisoners and officials Thus, right depends on nature, gravity, & complexity of the case, & capacity of the inmate to understand & present case Winters Undue delay in appointing counsel b/c prison said it was an emergency. Court rejected the claim, assertion of emergency without any other reason is not enough. Joplin (1982) BCCA Police Act grants right to counsel where discharge or demotion possible. Otherwise A has right to be represented by fellow police officer Provision struck down as ultra vires - legislature would never have meant for prov. to survive the Charter. Potential penalties too serious to be deprived of counsel - in police type of structure, any charges of innapropriate conduct affect persons entire career. Potential impact dictates right to counsel. 4. Right to Cross-Examine s.10(b) SPPA: A Party may, at an oral hearing conduct cross-examinations of W at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. This right tends to go with oral hearings usually when credibility is at issue Statute may give board power to control its own procedure (Manning) Oral cross-x might not be necessary in some situations (McLab) or premature (Manning) or innapropriate (where chair has investigative not adjudicative functions) Innisfil v. Vespra (1981)SCC discusses the importance of cross x opposing municipalities entitled to cross official who presented letter stating govt policy allowed because cross-x is a vital element of the adversarial system, and where the rights of the citizen are involved and the statute affords her the right to a full hearing, legit expectation of cross-x exists Consideration cannot be based on whether or not evid would actually advance claimants case but rather must be about is this the kind of case in which the evid should be admitted. Strathcona and MacLab (1971) Alta SCAD brd wanted to rezone an area brds decision challenged on ground that area unsuitable for residential housing because of nearby industry challenge successful since claimants never given opportunity to test all of brds evidence no need for cross-x as there was meaningful right of reply claimants given opportunity to submit competing scientific evidence therefore, even when right to oral hearing and to call witnesses and evidence, dont always get right to oral cross-x (it can be written) sometimes its not necessary Masters @ page 12 said full hearing not needed cant cross examine it is an investigation, not an adjudication

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Re B and Childrens Aid (1987) On Div Crt Childrens Aid society wants to register B in Child Abuse Registrar. Childrens Aid does not call child to testify however b/c she since retracted her statment. Childrent Aid wants to rely on hearsay evid of Cs first statement to them Crt holds that where A denied right to cross-X alleged victim - admission of hearsay evid = denial of natural justice - a lot of stigma to have name of registrat - serious impact. Other important aspects of meaningful right of reply:

5. Reliance on information not-disclosed violates fairness Brd cannot consider information which was not put to it w/o claimant being present and/or w/o claimant knowing of this info and having opportunity to respond. (Discipline hearing of Univ Prof. Additional info given to Board at dinner by Univ. President. Kane v. UBC (1980) SCC - 43 Similar to Munro) It doesnt violate fairness where in public domain or within expected range of boards expertise (Innisfil) 6. Where Act is Silent on Process Available Where Act is silent re whether a particular process is available, board must exercise discretion to consider whether it is needed in a given case (Abel) 7. Denial of Statutory Right of Appeal Denial of any statutory right of appeal probably not unconstitutional (Chiarelli) This makes sense given there is no right of appeal unless a statute grants one 8. Unfair Delay Kodellas (1989) Sask.CA set out factors for determining delay: was delay prima facie unreasonable? for eg. look at volume of cases and compare them to other courts (if time elapsed is greater than normal) why was there a delay? look at whose fault it is, if respondents fault cant come back and complain did respondent at one point waive concerns about delay was there in fact prejudice to adequate/meaningful right of reply? for eg. have to ask whether there is a real harm and whether you can still get witnesses it must be actual/substantial prejudice and not just procedural delay in this case, the 2 yr. delay was per se unreasonable it was not caused by respondent or complainant but by the board, there was no waiver, prejudice turns on 50 witnesses that wished to call (articling student reached only 12) crt not really sure about prejudice on 50 witnesses (could have hired an investigator), but satisfied that prejudice shown Nisbett (1993) MBCA sexual harassment claim delay is 2 years one of the complainants drop out court said reputation and stigma may cause delay to be prejudicial but didnt find enough on the facts to find prejudice crt said just procedural delay, absent mals fides, is not sufficient must establish substantial prejudice on the facts N was also partially responsible for the delay

1. 2. 3. 4.

Problem is that every HRC is delayed if this doesnt stop soon, there will be an Askov problem 9. Evidence Issues s.16 SPPA: A Trib may, in making its decision in any proceeding a) take notice of facts that may be judicially noted b) take take notice of any generally recognized scientific/tech facts, info or opinions w/in its scientific or specialized knowledge Judicial notice/official notice Brd intending to rely on a prior decision as precedent must give parties notice so they can respond -but if they use it just as an example and not as compelling evidence there is no need to alert parties (Innisfill) A board cant rely on outside information or research without making research available to parties and giving them opportunity to respond (Lawal (1991) FCA & Cable TV Assoc. v. Am College Sports (1991) FCA)

Admissibility of Evidence 21

Administrative boards are not bound by civil or criminal rules of evidence there is more relaxed standard (Laroque) The fact that admin boards apply different rules or standards from the courts is not open to challenge (although the choices they make are) The test is always was right to make meaningful reply impaired?

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C. BIAS Where there is an express or implied right to a hearing, natural justice or fairness dictates that such a right is empty if the decision maker is biased Even the appearance of bias that has no discernible effect on the outcome will ground judicial review that quashes the decision You dont have to prove actual bias (rare for this to be found), but only need to prove a reasonable apprehension of bias

The threshold for establishing BIAS is contextual and based on: 1) What legislature intended - Does statute provide for members with experience/knowledge/involvment? 2) The nature of the DM process - Is it quasi-judicial (like HR hearing MacBain) - administrative law (law + policy) (like labour boards Consolidated Bath) - or legislative (Old St. Boniface) 3) Is it a preliminary or final decision? -standard is lower for preliminary or pre-hearing stage than mid-hearing (Nfld Tel, French) There are 2 real categories of bias: pecuniary and non-pecuniary interests 1) Pecuniary or Personal/Material Interest 2) Non-Pecuniary or Material Interest a) Antagonism -antagonism by DM toward a particular party or W b) Prior Association -prior association b/w DM and one of the parties c) Structural -involvement of DM in an earlier phase of decision d) Institutional -Judicial safeguards met? Valented principles e)Attitudinal Bias -rooted in DMs history, experience, publicly expressed views OVERVIEW TYPE OF BIAS NO BIAS (1) Pecuniary & Other Material Interests Matsqui Indian Pearlman Energy Probe Sethi (2) Non-Pecuniary (a) Antagonism (b) Prior Association (c) Structural Marques and Dyles French Idziak Jones Matsqui Indian Consolidated Bathurst Paine Large Brosseau Old St. Boniface YES BIAS Dimes Armstrongs Point Moskalyk Gooliah, Golomb Yusuf, Brett, Sparvier Armstrongs Point Ont Hydro CNG v. NEB Committee for Justice and Liberty v. NEB Vespra Manning MacBain Tremblay Gale/Backhouse Nfld Tel

(d) Institutional (e) Attitudinal

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(1) PECUNIARY BIAS RAB TEST: Would reasonable person, reasonably informed about the DMs financial or potential personal stake -- possibility of career advancement, commercial competitive gain -- reasonably apprehend conscious or unconscious predisposition toward outcome? Must not be speculative, remote, too uncertain or contingent, or only possible at some future date. The key principle is that no man is to be a judge in his/her own cause It doesnt matter how small the interest is, as long as its direct and not too remote Armstrongs Point: member of municipal board was co-owner of a property which might increase in value as a result of the decision -- decision quashed Moskalyk pharmacist in small town loses license member of peer review panel is competitor pharmacist there -direct pecuniary interest bias Matsqui Indian Band member on tax appeal brd said gain from taxes too remote, too speculative and too generic Pearlman argues that if he was disbarred, it would decrease competition between lawyers -- said too remote no bias Energy Probe owner of cable co which supplies Nuclear power plants on Brd deciding to renew the license found no bias no present interest, too speculative, depends on market and contract tender Marceau (which McIntyre agrees with): if facts established and reasonable expectation of gain, its enough (but no facts here) -- found no bias, no present interest, too speculative If pecuniary interest is remote, is it too remote that reasonable people informed on the facts would not find a reasonable apprehension of bias Sethi (1988) FCA Convention refugee claims bias b/c govt bill makes Immigration Brd memb open to reappointement. Brd memb no longer indifferent. NO bias. Cant hold that Brd memb would try to please govt - Cant hold that govts interest is in rejecting refugees -Cant hold that b/c Bill tabled, Brd memb will respond to it. chilling effect on democratic process Burnbrae Farms egg producer loses license and claims other producers on the tribunal have economic interests in conflict with him -- no bias Legis requires 7 or 12 memb of agency be egg producers from other prov.also against Act scheme (2) NON PECUNIARY INTERESTS RAB test: would a reasonable person informed of the facts (aware of composition of brd and type of decision (context)) viewing the matter realistically and practically, reasonably conclude there is a reasonable apprehension of bias This test is for non-direct pecuniary and non-pecuniary seen in National Energy Board (a) Antagonism Must be unreasonable aggressive questioning, gratuitously disparaging comments, harassment of witnesses, hostile, etc. (not just eye-rolling or disengagement) Gooliah and Golomb unreasonably aggressive questioning or comments about testimony --bias Yusuf questions were unfair and sexist comments made to refugee claimant; Such acts esp significant when the Tribs role is to determine if credible basis for claim advanced and where claimant only W --bias Baker (1999) judges comments on deportation to Jamaican immigrant were: she was a drain on society and we dont need this kind of immigrant -- bias Brett judge suggesting to lawyer what objections should be made aiding other side -- bias (b) Prior Association Prior association is between decision maker and one of parties Must look at context did leg. contemplate the board needing to contain within it some prior association people? (eg. labour boards have no bias since prior association anticipated and experience required) 24

Marques and Dyles one of OLRB member was lawyer who worked at firm which did work for union who is party -no bias since Act requires tripartite boards and members with expertise (and it is a small community, so nowhere else to go) Armstrongs Point member of boards wife one of parties exec --bias Ontario Hydro conflict of interest lawyer who represented Hydro for 10 yrs cant now sit on brd hearing Hydro arguing rates 8 years later -- bias National Energy Board prior dealings on the very application and helping establish feasibility and support would raise a RAB (that he would be in favour of what he was in favour of) CNG Transmission v. NEB former chair contacted present chair personally to set up meeting, who had listened to submissions and decided -- bias

Therefore, no bias if prior association is really simply basis of expertise or statute designed as in tripartite labour boards, but will be bias if board member directly involved in matters ultimately before the board (c) Structural Bias (overlap in institutional functions) This has to do with involvement of decision maker in an earlier phase of the decision (eg. same people investigate and adjudicate) its an overlap in institutional functions Is it inevitable, contemplated by statute (eg. Brosseau -no bias) or avoidable, beyond statutory duties (bias)? Absence a bill of rights or charter challenge, overlap itself, if provided by statute, wont constitute a RAB unless something else happens outside of leg. mandate, you probably cant make out a claim (can attack leg. under bill of rights or charter) Problem is that there is an inference that a commission that has expressed views will spill over into adjudication (worry they are vested in interest) also when investigate and then adjudicate, its like judging your own cause its a problem Brosseau (1989) SCC There are 2 functions in the regulatory agency chair of commission at hearing was also the one who ordered the investigation and has a copy of the report found NO bias at c/l overlap contemplated by statute and chair did not go beyond statutory duties commission intended to be composed of experts rule is: if staute gives authorization, it is not bias per se (especially with multi-level body, and some action beyond legislative duty needs to be found before bias can be found) Manning (1995) ONCA legal conclusion that penny-stock traders and M in a case were involved in unfair trading policies commission launched investigation against M on basis of which made policies on basis of which they prosecuted M on the challenge of the commissioners as a body, it is expected that the other commissioners bring their background knowledge to their job, so there is no impartiality the new commissioners are not tainted so no RAB on challenge of commissioners who had a role in the proceedings defending the policy, drafting the press release (work related to the policy), they were found to give a RAB since they read or prepared or supported a previous case and continued to support it there is a right to no pre-judgment on the challenge of the 4 articles by the chair there was no RAB for the articles since not a pre-judgment of guilt on the challenge of bias against chair of commission who delivered press statement, there was found a RAB he sat on many of the hearings and defended the policy and findings overall, there was a RAB on all commissioners except the new ones the chairs attitude doesnt filter to everyone Gale/Backhouse or (A & P) (1993) On DC B on HR brd appointed to hear Gs claim of sexual harassment B also claimant in Osgoode systemic sex discrim case found bias B in position to vindicate the position she took as a complainant in similar case therefore, someone who is a complainant, cant be an adjudicator on the same issue McBain (1985) FCA HR commission mediates, investigates and adjudicates on sexual harassment complaint M complains that s.7 and Bill of Rights violated because commission chooses judge for a complaint it already deems substantiated CHRC is both prosecutor and judge court said that the overlapping function caused a RAB YES Bias 25

Direct connection b/w prosecutor of complaint (CHRC) and DM (Trib). Cannot judge your own cause and cannot choose judges to do so either. Scheme = inherently offensive b/c uses word substantiate to both investigation + hearing. therefore, an overlapping structure built into statute breaches s.7 of Charter and/or Bill of Rights RAB due to this finding, there was a separation of functions *but contrast with Idziak Committee for Justice and Liberty v. NEB (1978) SCC Mr C. was part of exec of group of co. who want to construct gas pipeline. Now Mr C. is Chair of NEB hearing the application for construct. of pipeline. Clearly Bias - Mr C. had a hand in developing & approving impt underpinnings of application now before him. Vespra (1983) ON DC Application to annex Vespra made by Barrie. Memb of Brd = all those who heard original application & were clearly in favour of Barrie. Also, Brd didnt allow any new evid in. Clearly Bias - Brds statments from last application v. emphatic and suggest clear leaning. Also relied on old evid w/o regard for new developts & changes New hearing before a difft panel required. Idziak (1992) SCC M both decides whether to proceed with extradition request and also appoints agent to prosecute matter at extradition hearing. NO bias - M just appoints prosecution NOT judge. Ind has full procedural protection of a hearing. Jones (1986) SCC School Dept official decides if suff proof of effective instruction to warrant allowing a child to be taught outside of school sys. NO bias - Part of Official job is to be committed to school system & to ind. child. Cant make any seeming conflict of interest into RAB Law Discipline cases: (dont need to know for exam) Law Society v. French law society discipline committee finds F guilty of misconduct and recommends suspension recommendation heard by Convocation where 2 members of committee attend majority said no bias (its not a 2-stage process but one continuous one) and minority said it was a 2-stage process (like an appeal) Emerson agrees with French one continuous process then need full fairness from day one McIntyre disagrees with these cases doesnt make sense

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(d) Attitudinal Bias 2 general rules: no need to prove actual bias, appearance of bias is enough to establish breach of fairness, whether biased members bias swung a majority is irrelevant the right to an unbiased hearing is an independent right and a finding of bias will quash this bias is rooted in the decision makers history, experience, publicly expressed partisan views, etc.

Factors: 1. Depends on speech taken in its entirety Pickersgill 2. Depends on stage of process lower standard if pre-hearing Nfld. Tel 3. Depends on composition of the board: Tripartite (Dylex), experts with expertise in field (NEB), pluralist political mix where partisanship contemplated (Nfld. Tel), politicians elected on exactly the same issue being decided (Richmond, Old St. Boniface) Standard: Sliding-scale standard applies: a) RAB - court-like; once hearing date settled (bit lower) & mid-hearing (bit higher) b) No Closed mind - legislative; pre-hearing; policy issues Quasi-Judicial & ----------Administrative--------- Purely Legislative Adjudicative RAB Closed Mind Personal Interest Prejudgment If complainant, want to avoid the close minded test b/c very difficult to establish that someone has a final opinion which cannot be dislodged - need to juggle the grid to get to RAB. (i) ADMINISTRATIVE Re Paine (1981) ONCA application for tenureship one member of dept. recommended it to be declined, one appointment on committee declined and negative member appointed tenure denied 5-0 found no bias deference to internal decision making process all members will have an opinion (the committee is not just supposed to hear from positive opinions) one member with previous opinions would not dominate (and it was 5-0) therefore, absent a flagrant violation, the courts will defer if having opinions is part of the terrain and they are candidly expressed prior to being on the panel, there is no bias in law Gale/Backhouse or (A & P) (1993) On DC B on HR brd appointed to hear Gs claim of sexual harassment B also claimant in Osgoode systemic sex discrim case found bias B in position to vindicate the position she took as a complainant in similar case therefore, someone who is a complainant, cant be an adjudicator on the same issue Large (1992) On DC HRC hearing on whether mandatory requirement was a BFOQ Chair has argued against mandatory retirement and favoured flexible approach found no bias mandatory requirement not at issue, just whether its BFOQ Chair only advocated an approach, didnt dedicate his life to it HR boards supposed to have expertise and experience this case conflicts with the previous one Manning (1995) ONCA Corporate Taint Ont Securities Comm launched investigation against Manning on basis of which made certain policies on basis of which they prosecuted Manning. Pres. of OSC made comments to media re: trends in securities indus. NO attitudinal bias on part of president: Speeches, policy statements part of his job and didnt single anyone out. (ii) LEGISLATIVE 27

Old St. Bonafice (1990) SCC body implementing policy zoning decisions made by elected politicians city council (who is pro-development) sits on hearing he was elected because pro-development and statute calls for hearing crt said no bias when elected officials are doing what they are elected for, making by law or policy, a broad application is used (if entitled to a hearing) challenger can only make out bias in law if boards mind was already totally made up (must be Closed Minded) Save Richmond twin case says the same thing but in dissent says that the test should be whether they are corrupt and not whether they are closed minded The standard for policy makers implementing policy is close-mindedness: must be amenable to persuasion the logic for this is that politicians shouldnt be disqualified for following through on their campaign promises or known partisan ideas but where context calls for a hearing, they cannot have completely pre-judged the issue or the hearing is a waste of time (iii) QUASI-JUDICIAL

Nfld. Tel (1992) SCC Wells is advocate for consumer rights, member of board for regulation of Nfld. Tel board is to hold hearing on accounting W speaks to media before and throughout proceedings expressing very strong views and intentions (**he was chosen for the board because of his views and his expertise though, so expertise does not equal bias here) crt found that the statements he made before the hearing are alright there is no evidence of closed mindedness (just opinionated) wide scope allowed without being biased BUT, crt said from the moment the hearing is announced, the standard shifts from closed-mindedness to RAB (higher standard) and especially statements made during hearing at this point, fairness requires members to conduct themselves so that there is no RAB The standard for those exercising quasi-judicial functions the same for courts would a reasonable and fairminded person reasonably informed of the circumstances reasonably apprehend bias? (test comes from NEB) where the type of body or decision falls in between, timing of imprudent remarks is critical: more latitude is extended pre-hearing than once hearing is scheduled and commences (Nfld. Tel pre-hearing std is closed-mindedness and RAB kicks in once date of hearing set) but it is doubtful that closed-mindedness applies pre-hearing to trial-like proceedings or that RAB kicks in if there are 12 months between setting date and commencement of hearing R.D.S. (1997) SCC applies NEB test 3 opinions all agreed on test; presumption of impartiality so onus on challenger to show RAB; bias is a state of mind and attitude; mere suspicion wont do; its a doubly objective test; law doesnt require judges to be strict with their views; judges do bring in background knowledge 3 judge minority would find her biased read text as all police are biased and read in race stereotypes about PO they see her as making credibility findings on basis of stereotype 6 judge majority found that she only said these things because she was answering the Crowns questions differences on how to apply the test Cory: said her comments were unfortunate and very close to the line says a reasonable person is informed of the social context, but if you want to bring in factors, you better bring in evidence and not reason on generality (it must be fact specific) but her comments didnt give rise to perception that she prejudged credibility on agreement with Major on test but not application and disagreed with LH-D on how background knowledge could be used it wouldnt be acceptable if judge went further and suggested all officers shouldnt be believed Major: also says comments close to the line, but appellant never brought up racism so you cant use it there should be a neutral 28

LH-D: said no judge is neutral but have to be impartial entitled to answer police challenge with awareness of systemic racism the characteristics of a reasonable person are: aware of judicial impartiality contents and knows equity and the Charter -she says that the comments were entirely appropriate in the circumstances

(e) Institutional Bias It is the concern for independence and arms length decision making by decision makers 2 types of cases: (all depend on formalism): 1. The full-board hearings where policy implications of a particular decision are discussed by all board members (Consolidated Bathurst, Tremblay) The first type of case requires the actual panel in a given case not be pressured by their immediate superior or their peers so its best if they request a full board, not the Chair of the entire board; attendance voluntary, no attendance taken, no minutes, no votes; just an open brainstorming which leaves panel with freedom to use their best judgment.

Consolidated Bathurst (1990) SCC union brought complaint to OLRB that E did not bargain in GF 20 days after CA signed, plant closed hearing by a 3 panel board after hearing, draft decision composed and panel called a full-board meeting to discuss major policy issues (point of law which has large implications on labour law) E challenged full-board meeting for (1) depriving E opp to be fully heard (2) undermining individuality of board majority (Gonthier 5): said no bias full board meeting to foster efficiency, coherence and quality through use of boards expertise in brd decisions meetings do not impinge on judicial independence of board: no decision comes out of meetings, no notes taken, attendance not taken (its voluntary), discuss issues on facts determined by panel, decision left entirely to panel therefore, meeting is an important element of legit consultation process which does not impinge on freedom of panel member to decide according to their own conscience Minority (Sopinka and Lamer): found bias said meetings potentially influential lots of important board members present appearance of fairness jeopardized parties deprived of opp to present submissions to meeting just because only policy discussed doesnt change fairness fatal decision that policy discussed was not disclosed to parties hard to see how it fosters uniformity unless panel open to influence if influence, there was no independence (its collegial pressure to decide the common way) Tremblay (1992) SCC T wants cost of bandages and dressings paid for as medical equipment 2 member panel drafts decision favouring T president of commission reviews draft, disagrees, and writes memo to panel, so panelist asks for full meeting after this one panelist changes mind (by statute, when have a tie, it goes to presidents decision) crt said there was bias the process was fine IF it was triggered at the panelists request and is free to decide, but here it was at the Chairs request and therefore undue influence compulsory aspect and fact that president can call meeting pressure = RAB here they took attendance and compulsory if counsel saw departure of existing president amounted to compulsory consultation which infringes the independence of the body fact that parties dont get to make submissions is not an issue

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2.

Cases where financial or job insecurity may influence decisions (Matsqui) The second type of case contemplates a certain degree of conflict of interest but not contemplate vulnerability of being appointed ad hoc or on a fee for service basis and subject to non-renewal if appointer is displeased with the decision.

Matsqui Indian Band (1995) SCC -Purely case of structural independence Under Indian Act, governing body (Bands) entitled to pass tax by-laws with 2 separate internal appeal structures and 1 appeal on error of law to Federal Court. CP argued that this structure lacked institutional independence and had institutional bias. SCC agreed. Lamer rejected bias challenge, found it speculative b/c dont know whos sitting on appeal board at time focus on institutional dependence agrees with Sopinka that policy of promoting self-government is relevant in deciding whether internal mechanism should be used but not where internal appeal process violates principles of fairness the fact that the tribunal have been constituted within the content of the federal policy promoting self government does not in itself dilute natural justice , fairness is owed basis for independence comes from Valente (independence is the freedom to decide on merits in each case without external interference) 3 components: 1. security of tenure: fixed term, no termination without just cause, no termination without full hearing 2. financial security: fixed payment by an arms length process, prescribed by law, not subject to political interference. No direct negotiation b/t judges and govt appointers. Where renumeration is set by govt, no changes may be made until an independent commission has reviewed proposal and made comments. Commission must be independent, objective, and effective. There must be a level below which renumeration cant fall. 3. administrative independence: judges assign new judges to where theyll be sitting, determine cases, decide requests for leave, all mechanisms in hands of judges In this case, dealing with administrative body where contents of independence will vary. Here, payment is allowed to board, but dont require it, there is no tenure in office, and appointed by the Band chiefs (this is bad). From NEB test: This case leads to the conclusion that a reasonable and right minded person viewing the whole procedure in the assessment of by-laws would have a reasonable apprehension that members of the appeal tribunal are not sufficiently independent. S, HD, G, I: NO Bias Look to operational reality. Just b/c legis. silent on Valente principles, not enough Also look to purpose - here Aboriginal self-govt. If you ignore purpose of scheme - more likely to look like inadequate process. Bell Canada v. CTEA (1998) SCC bias found Pay equity complaints were filed with the CHRC against Bell Canada with a Human Rights Tribunal. Bell Canada raised the question of whether the Tribunal was an institutionally independent and impartial quasi-judicial body. A high level of independence is required as it is a purely adjudicative role and the functions performed by the Human Rights Tribunal in relation to rights and interests which are quasi-constitutional in nature. Valente should be applied strictly. A) security of tenure afforded to a Tribunal member whose appointment expires during the course of a hearing therefore no security of tenure. B) No financial security as the remuneration of the members is controlled by the Commission, an interested party in all Tribunal proceedings. Any increase would be via negotiations between Tribunal and Commission. Fundamental rights at issue cannot be determined by a Tribunal appointed until Valente issues have been corrected.

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(D) CONSTITUTIONAL THRESHOLD necessary to turn to the Charter or Bill of Rights when cant obtain fairness under the Knight factors this might occur when the Act itself does not envision any fairness, or only sets out limited fairness, or if it is an admin agency which applies policies and therefore may not attract fairness

OVERVIEW 1) 2) 3) 4) Constitutionality of a Statutory Provision privative protection contrary to s.96 or the 1867 Act - Crevier, Farrah statutory powers contrary to s.96 -Residential Tenancies statutory power contrary to s.7 Charter inadequate notice or hearing rights (Chiarelli, Hundal, Singh) overlapping functions creating RAB (McBain) mixture of inadequate procedures and substantive interference with freedom to practice chosen profession (Wilson)

2) Constitutionality of how a lawful statutory power was exercised in a case inadequate notice and hearing rights - Chiarelli, Gough, Gallant, Nisbett, Kodellas, Hundal all s.7 abuse of discretion discretion not exercised in conformity with Charter - Slaight s.2(b) 3) Bill of Rights procedural fairness challenges - Singh, McBain Charter The Charter applies to govt actors exercising a govt function or statute or an actor delegated by govt (being public is not enough) Substantively, the Charter doesnt give you any more than what you would get under the c/l and more ways to get fairness under c/l (if have claim under c/l might have claim under Charter) Procedurally, if s.7 applies, have s.1 might be entitled to fairness, but justified Under s.7 everyone doesnt involve a corp. is it a life, or liberty, or security interest? if not, dont go to Charter, go to c/l fairness After threshold, must be deprived of one of the above in a manner not consistent with the principles of fundamental justice (same as c/l adequate and meaningful right of reply and no bias) Bill of Rights S.2(e) no law shall deprive a person of a right to a fair hearing in accordance with P of FJ for the determination of her rights and obligations Applies only to regulations, orders, rules and fed statutes Also applies to corporations, extends to enjoyment of property, no s.1 equivalent Singh (1985 SCC) -s.7 and Bill of Rights applicant with refugee status applies for redetermination but in order to apply, must satisfy board why they think theyll win but they dont know why they lost in first place, Minister doesnt have to disclose reasons Held: absence of any opportunity to a hearing at any stage of the process violated s.7

Wilson: (1) govt said it did not apply to non-citizens but yes it does apply (2) govt said under .s7, it should be read as a unit (must have all 3 deprived) but no, they are read apart and any of the 3 will ground a claim (3) govt said no need for procedural fairness since privilege to live in Canada and this is purely admin, not adjud but no, its de facto adversarial since the Minister is against applicant said applicants security of person involved here very serious no fundamental justice since she doesnt know the case to meet security of the person includes physical security and reasonable fear of suffering or physical punishment not just incarceration or the death penalty where a serious issue of credibility is involved in determination of a right, interest or privilege, fundamental justice requires that credibility be determined on the basis of an oral hearing There are 2 ways to challenge s.7: 31

(1) can challenge the provisions of the statute on their face/directly (Chiarelli), or attack on exclusion (the statute for what it doesnt have) - Singh (2) can leave statute alone and say that public officers are applying them inconsistently with s.7 Eldridge Chiarelli (1992) SCC if violate section, get mandatory deportation right of appeal and compassionate review but can be denied right to appeal if involvement in org. crime and compassionate review taken away argued (1) denial of right (getting mandatory deportation) to compassionate grounds of appeal on its face violates s.7 (attacking Immigration Act) and (2) even if loses on that, how he was processed, violated his due process rights (he didnt know the informants or what was said) Sopinka: said no violation of s.7 he says deportation doesnt trigger s.7 and there is no violation of the principles of fundamental justice non-citizens dont have unqualified rights to enter or remain in Canada Parliament has right to prescribe conditions the interest of the state and individual must be balanced there are national security interests P of FJ involves the balance of the public/ private interest it is different in a criminal process the standards will vary depending on the process also said process did not violate fair process: he got more fairness than he should have he had right to cross and copy of investigation all he didnt get was sources and this is for security reasons Wilson (1988) BCCA argued security of person included right to practice profession where you want also challenged under s.6 since govt wanted to limit # of doctors practising Held: s.7 does not protect pure economic rights or property (right to work) but s.7 applies where doctors are limited as to where they can practice as their right to pursue livelihood or profession (dignity/self worth) and their mobility rights (fund aspect of liberty) are affected s.7 violation does not comply with P of FJ as the scheme restricting doctors is based on vague criteria, is arbitrary and procedurally flawed Prostitution Reference (1990) SCC Lamer criticized distinction between right to work and right to pursue profession (really saying both are economic and should not be protected) said this distinction doesnt help definition of liberty seems to be all encompassing says s.7 implicated when state restricts physical liberty, restricts S of P by interfering with or removing control over physical and mental integrity, and state restricts privileges or liberties by using threat of punishment in noncompliance cases therefore, Wilson could be overturned if went to SCC Kodellas (1989) Sask CA - overturned by Nisbett accused of sexually harassing staff held that dignity may interfere with employment and accusations and so this engages S of P the accusations interfere with the P of FJ when they drag on (went on for 3 yrs) Nisbett v. HRC (1993) MBCA 2 doctors staff complained of sexual harassment to HRC 1 yr delay before hearing held: no s.7 violation it must be construed in light of interests it was meant to protect the primary focus of HR proceedings is remedial and civil in nature and so s.7 has no application to proceedings of a non-penal nature under HR legislation (and the Askov rules dont apply) stigma does not trigger s.7

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R v. Morgentaler (1988) SCC Dickson 1. Security of the person: removal of decision-making power threatens women in a physical sense & the indecision of knowing whether an abortion will be granted inflicts emotional stress as well. = bodily integrity in both a physical and emotional sense. If a rule of crim law precludes a person from obtaining appropriate med treatement when her life in danger = violation of S of P. If an effective and timely therapeutic abortion may only be obtained by commtting a crime, then s.251 violates the pregnant womans right to S of P 2. P of FJ It is only insofar at the admin structure created by s.251, creates delays which are unnecessary that the structure can be considered to violate the P of FJ. Overall s.251 has several procedures which are unecessary, exorbitant, and counter productive and violate P of FJ. Wilson 1. Right to liberty: Charter and right to ind liberty tied inextricably to human dignity, respect for ind choices Charter founded on right to make fund. personal decisions w/out interference from state. Fact that decision of whether a woman will be allowed to terminate her preg. is in the hands of a commitee = violation of the womans right to liberty by deciding for her something she has the right to decide for herself. 2. Security of the Person: Legis asserts that the womans capacity to produce in not subject to her own control. It is subject to control of state. She has no choice. She is treated as a means - a means to an end which she does not desire but over which she has no control Restrictions on s.7 if L & S of P were defined in terms of attributes such as dignity, self-worth and emotional well-being - liberty under s.7 would be all encompassing. If so - why would we need other rights/freedoms in the Charter? (Lamer, Prostitution Reference) s.7 must be construed in light of the interests it was meant to protect. It should be given generous interp, but it is impt not to overshoot the actual purpose of rights in question (Beare (1988) SCC) s.7 has no application to proceedings of a non-penal nature under HR legislation (Nisbett) Fair for state to retain some veto/overarching power b/c of national security interests. Interest of state and ind must be balanced - NO violation of s.7 if ind names of information sources not released. (Chiarelli) s.7 does not protect pure economic rights or property - right to work. (Wilson) s.7 does not protect right to pursue profession. (Prostitution reference - lamer) If L & S of P were defined in terms of attributes such as dignity, self-worth and emotional well-being - liberty under s.7 would be all encompassing. If so - why would we need other rights/freedoms in the Charter? (Prost Ref lamer) Inclusions in s.7 Infringement of applicants S of P involved in being denied refugee status (Singh) s.7 is implicated when: state, through judicial sys. restricts and inds physical liberty in any circ. state restricts inds S of P by interfering w, or removing from them, control over their physical and mental integrity. state, either directly or though its agents, restricts certain privileges or liberties by using threat of punishment in cases of non-compliance (Prostitution Ref. - Lamer) See Morgentaler Where s.7 used - results are not very different than from CL. Persuasive value is perhaps increased but only in regards to impact on petitioner

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PART B: ERRORS OF FACT, LAW AND JURISDICTION

OVERVIEW: map of type of board and type of review HR A Zurich A Dickason JR Mossup A Ross LABOUR JR Cupe JR Bibeault JR PSAC (1) JR PSAC (2) JR Lester JR Bradco JR Dayco JR Acadie CRTC A Bell v CRTC SECURITIES A Pezim INTL TRADE JR Natl Corn

Differences between JR and Appeal Right to JR/ Appeal Scope Remedies JUDICIAL REVIEW legislative drafting cannot oust right to JR for error of jurisd. inherent to rule of law at CL, JR covered error of law on face of record JR for error of law unavailable with private clause JRPA sets out grounds for JR Federal Ct Act ground for JR for Federal bodies in s.18 Quash APPEAL no right to appeal unless legislature grants it

no CL right of appeal stat regime created entirely by legislation JRPA allows plaintiff to choose whether to pursue JR or appeal, s.29 requires them to appeal before JR Ct may substitute their own decision - real remedy

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STATUTORY APPEAL How to proceed when faced with an appeal clause: Is the right to appeal given at all by the statute? If so, (1) Identify the scope of the appeal law, law and fact, law and fact and opinion, power to substitute (2) Identify what type of appeal is allowed on record, de novo, re-hearing (3) Determine the appropriate standard of review assess what kind of decision making body it is do crts tend to defer to? apply Bibeault factors to assess level of deference (1) SCOPE OF APPEAL Southam (1997) SCC gives definitions of law, fact, and mixed: Law: concerns the correct legal test of a matter or statutory term and has significance beyond a given case Fact: concerns what actually took place Mixed: concerns whether the facts found satisfy the legal test mixed is due a degree of deference reasonableness example 1 : what constitutes negligence =law, whether person did x or y = fact, whether those facts meet the legal standard of care required = mixed example 2: what does family status mean = law, was he denied on the basis of family status = fact or mixed depends on definition, or could say whether it applied =mixed and whether in fact it was a denial =fact best way to figure it out is whether the disputed finding has much precedential value or general applicability, or whether by contrast, it is largely limited to the particular or even unique facts of the case so will unlikely arise again (these are findings of mixed) in this case, the question was of mixed fact and law (and the board was due a degree of deference even though there was no privative clause and right to appeal because of expertise see std. of review section) (a) Fact When an admin body is required to make a finding of fact in the course of rendering a decision, a court may set aside any decision that is based on a material finding of fact if it is not rationally supported by the evidence before the tribunal When there is a statutory right to appeal from tribunal findings of fact, the crt may not be prepared to make an evaluation on the evidence in order to find the correct finding it will extend a measure of deference to those findings of fact that the tribunal was better placed than the crt to make When the rights of appeal do not extend to facts alone, the appellate court will be even more reluctant to intervene, but it will scrutinize evidence to ensure that material findings of fact are not unreasonable in the light of the evidence before the tribunal Union Gas (1957) SCC new gas company applies for permission to build gas pipeline to pump gas to its plant admin body hearing case, may refuse unless public convenience and necessity appear to require that such approval be given they were denied and argued public convenience favoured them appeal clause was for fact or law CA held that on appeal of facts, their grounds succeeded SCC said it was an appeal on the facts but what they were really trying to appeal was the judgment call and not the facts -- they wanted to substitute opinion and no appeal is allowed based on opinion therefore CA made error of jurisdiction cant appeal on opinion Redall (1983) ONCA nurse terminated for incompetence committee made decision to revoke license on grounds that she committed serious errors which endangered the lives of her patients Div. Crt said given huge review powers but no evidentiary record to back up their decision but accepted committees decision since not challenged directly and not shown anything to support challenge CA said they are entitled to have a record on which to review the notice of hearing didnt say anything about endangering lives the committee relied heavily upon the expertise of the board without establishing opinions or what they were based on in the end, she won on punishment but lost on incompetence (admitted to that part) 35

(b) Law Where appeal is limited to questions of law, cant appeal fact-finding unless you can convert error of fact into error of law by: no evidence/no facts = error of law (agency exceeded jurisdiction) Keeprite (a) Act was interpreted correctly but applied incorrectly (rights interpreted but no facts exist consistent with it) Lester (b) Act was improperly interpreted (facts dont fit into Act) Test: whether decision was based on a material finding of fact that was not supported by evidence, such that a reasonable tribunal, acting judicially and properly directed in law could not have made the finding in question Bell v. CRTC (1989) SCC Appeal Clause Bell applies for rate increase. CRTC sets an interim rate while waiting for rate approval. Turns out that Bell made a huge profit from interim rate so CRTC orders Bell to make a refund to its subscribers. Bell challenges CRTCs jurisdiction to do so. GONTHIER: Even though no PC, and an appeal clause, crt should defer on issues which fall squarely w/in brds area of expertise. Here, issue not w/in brds expertise so appeal clause applies: Crt holds that CRTC does have jurisdiction over interim rate review and refund even though not explicitly set out in its enabling legislation. Such powers exist by necessary implication from wording of act, its structure, and purpose. Should not unduly sterilize power of brd through overly technical interp Crt must not stifle the legislators intention by reason only of the fact that a power has not been explicitly provided for Pezim (1994) SCC Appeal Clause BC Securities Comm. finds Pezim failed to make timely disclosure of certain transactions. Pezim appeals under Act and challenges SRC on its interp of timely factor and material change Iacobucci : SRC gets deference goal of Act is protection of investor, highly specialized and requires specific knowledge and expertise, uses Bibault factors to warrant deference Feingold (1981) On DC Conflict of interest case re: whether opthalmic dispenser was engaging in practice of optometry with Feingold as prohib by regulation. Question of interp. B/c case of appeal, crt has broad powers, not ltd as in JR. No Deference. Zurich complaint to OHRC that auto rates for young men violated right to equal treatment brd erred in law by applying wrong test (see full case description below). (e) Discretion

Union Gas there was a statutory right of appeal on questions of law and fact opinion/ judgement call of tribunal is NOT finding of law or fact but a formulation of opinion NOT covered by appeal clause

(d) Mixed: Southam

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(2) TYPE OF APPEAL There are 3 categories of Right to Appeal a) Appeal on the record: no new evidence, appellate body reviews original decision for error b) Appeal by way of re-hearing: appellate body can look at original record and new evidence broadly framed appeal clauses signals leg intent that crts are free to rehear without deference a) Trial de novo: -start from scratch, no deference to original fact finding (a) Trial de novo Calgary Hospital (1982) Alta CA death of patient discipline committee investigates doctor he declined to participate throughout when new appeal board created he appeals crt gave trial de novo: composition of board: only one lawyer (not restricted to questions of law) and members are experts powers of the brd.: have power to summon witnesses and production of documents records of proceedings: no obligation of hosp board to keep records or issue reasons if leg intended appeal on record would have made such records mandatory Redell see pg. 30 huge appeal clause includes everything: appeal on question of law, fact or both; crt can affirm or rescind decision of brd; crt may exercise all powers of brd; crt can direct brd to take any action it deems appropriate; can substitute its own opinion for that of the board; can refer decision back to brd in whole or in part

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(3) STANDARD OF REVIEW Generally, starting point on appeal is no deference but still even with appeal clause, crt will sometimes choose to defer (not at issue on trial de novo) Bibeault Factors 1. wording of the act: includes on appeals breadth of scope of appeal clause 2. purpose of the act 3. purpose of the board: look at type of matter regulated (courts seem more reluctant to intervene in professional discipline Fiengold and more deferential on economic and commercial issues Pezam and Southam); also look at degree of field specialization ascribed to the board (list in Corngrowers and distinctions in Mossup) 4. area of expertise: look at identified zone of expertise (HR tribunals experts in fact-finding and adjudication in HR context, not general questions of law, CRTC in rate setting, anti-combines board in economics and commercial determinations 5. nature of problem: what is the type of question before the board ( is it a general question of law Mossup, a matter that lies at the core of expertise Pezim, CRTC, is it mixed fact/law Southam, is it adjudicative v. legislative facts Zurich) No Deference Std. of Correctness Dickason (1992) SCC challenged mandatory requirement, concerning application of BFOQ test appeal clause: broad powers to crt to confirm, revise, or vary order of brd, and to make any order brd can make Cory: (5) court does not need to defer c/l principle of deference to fact finding of lower tribunal can be waived by an appeal clause deference to HR tribunal on fact finding does not apply to social fact evidence which courts are just as good at (here it is age and competency) there is no special expertise that HRT has that the courts dont in this area LH-D and McL said there should be deference need to look beyond confines of statute to the context deference is based on fact that tribunals have the advantage of seeing and hearing witnesses here the brd only does HR cases and social fact evidence does fall within its expertise Zurich Ins.(1992) SCC complaint to OHRC that auto insurance for young men violate right to equal treatment issue of whether there is a defence of reasonable and bonified ground appeal clause is broad on law, fact, or both crt may affirm or reverse, substitute decision, etc. Sopinka: Bd erred in law by applying wrong test it all turned on whether there was in place a reasonable alternative and whether old system based on sound accepted practices found as a fact that there was no other reasonable alternative as of yet broad power to appeal and no PC suggests no contemplation of deference no need to defer when it was non-adjudicative fact finding the HRC is no better at insurance actuarial case than the SCC therefore courts wont defer to HR bodies when question of law which board has no particular expertise LH-D and McL (dissent) same thing as above deference to tribunal appropriate because of boards expertise in HR and in best position to assess evidence even when no PC and broad appeal clause crts would b loath to substitute their own opinion for well considered views and findings of tribunal also say that there is a reasonable alternative than the rate setting for insurance and unless we say it, the insurance rates will never change Deference Std. of Reasonableness Southam (1997) SCC Combines Investigation tribunal has 12 members, 4 judges and 8 lay people with business expertise each panel has 35 members and judge must decide questions of law advertising in papers questions of unfair competition application of Bibeault factors to this case: 1) appeal clause but no privative clause 38

2) purpose clause calls for deference 3) purpose of brd tied to Act weighing of multiple factors says weighing is never a question of law (crts should give some degree of deference) 4) expertise is unique, strange no deference from judge to judge, but the bulk is lay people with economic expertise, so defer no privative clause does not mean dont defer Iacobucci doesnt agree with tribunal but defers std of reasonableness cant say they were clearly wrong, so he will leave it alone even though doesnt agree Iacobbuci: he seems to suggest that now all routes to judicial revisiting (whether appeal or JR)are subject to Bibeault factors the pivotal factors are: expertise of the board and expertise required for the particular interpretive or fact-finding determination in dispute he also gives definitions for law, fact and mixed (see pg. 29) he now gives 3 stds of review: correctness, reasonableness, and patently unreasonable, where unreasonable means clearly wrong he states that patently unreasonable will rarely occur on an appeal and will usually occur only when in face of a privative clause where the brd has narrow jurisdiction he states that reasonableness will likely be applied where a boards specialization is economic and commercial decision making and the disputed issue requires such expertise, notwithstanding a broad appeal clause (all specialized boards on appeal which makes it seem like only HR tribunals will be held to correctness)) for judicial review, it seems that reasonableness will only show up where there is none or a weak privative clause on the difference between pat. unreasonable and unreasonable (he is murky): it turns on the obviousness of the error where it is immediately apparent on its face, it is patently unreasonable where it takes some significant searching to find the defect, it is only unreasonable (with Nat Corn Growers distinguished it by saying complex but really just wont happen again and would be called unreasonable) Bell v. CRTC (1989) SCC Bell applies for rate increase CRTC sets an interim rate while waiting for rate approval Bell ends up making large profit from interim rate so CRTC orders Bell to make rebate Bell challenges CRTC jurisdiction to do so Gonthier: even though no PC, and an appeal clause, crt should defer on issues which fall squarely within boards area of expertise, even though in principle, dont have to defer on appeal in face of an appeal clause held that CRTC does have jurisdiction over interim rate review and refund even though not explicitly set out in legislation such powers exist by necessary implication from wording of act (if jurisdiction to grant interim relief, have to have implied power to correct it) CRTC are experts on rate setting Pezim (1994) SCC BC securities commission finds P failed to make timely disclosure of certain transactions P appeals under Act and challenges SRC on interpretation of timely factor and material change appeal clause is narrow question of law but only on leave of crt (this doesnt affect decision) Iacobucci (for whole crt) goal of SA is protection of investor and protection of public its a highly specialized activity and requires high expertise uses Bibeault factors: purpose of act above, wording of act has no PC and small appeal, highly specialized field in complex area on other hand, commission has no policy development authority question of material change is crucial to securities core matters therefore considerable deference needed since specialized field in complex area going to its core std is reasonableness and not correctness crt erred Note: statute defined material change used to get deference ( whether or not the leg defined the term can be argued to invite deference or correctness (crts inconsistent)

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Ross v. N.B. (1996) SCC HR case, admin tribunal subject to the Charter R is antisemite, A complains on half of children Board found R violated code, as well as school board -remedy was also a gag order was it beyond jurisdiction of board? on admin law issue: for std of review, they are HR adjudicators, they are ad hoc (Mossup), there is no general expertise in general questions of law but they do have expertise in fact finding and adjudication in the HR context and entitled to deference there (although this looks like the latter part) very weak PC (no appeal) LaForest says that determination on whether discrimination occurred is mixed facts and law and so some deference is owed said entitled to a degree of deference but std is reasonableness expertise on discrimination when exercising discretionary matter, courts should defer on Charter issue crt said that the gag order violated Rs freedom of speech there was an insufficient nexus between the breach and the remedy ordered crt said that if the remedy is unconstitutional, it is beyond the boards jurisdiction exercising a statutory power in the narrow sense you cant issue any remedy that goes against the Charter if const, and survives, it cant be PU by reason of the Charter

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JUDICIAL REVIEW Type of Judicial Review (A) Mere Error of Law statutory interpretation, if no PC Mossup (B) Narrow Error of Jurisdiction (Correctness) an error interpreting jurisdiction conferring or limiting language (C) Broad Jurisdictional Error or Intra- Jurisdictional Error (Patently Unreasonable) Patently Unreasonable Finding of Fact or Law no evidence/no facts = error of law (agency exceeded jurisd) interpretation of Act which affects proper finding of facts: Act was interpreted correctly, but applied incorrectly (right interp but no fact exists consistent with it hence no evidence) Act was improperly interpreted (Facts dont fit into Act) Procedural Unfairness _____________________________________ (A) MERE ERROR OF LAW It means error in statutory interpretation and is only available if there is no privative clause (PC) Bibeault says: a mere error of law is an error committed by a tribunal in good faith in interpreting or applying a provision of its enabling Act, of another Act, or an agreement or other document which it has to interpret and apply within the limits of its jurisdiction Mossup (1993) SCC argued interpretation of family status in CHRA said denied leave on basis of family status (since his family not recognized in law) FCA said true argument is sexual orientation SCC said error of law (could have called it an error of jurisdictional fact) Lamer: non-codification of sexual orientation was determinative gave it a plain interpretation strictly case of statutory interpretation look to legislative intent: parliament specifically declined to include sexual orientation into Act cant end run parliaments intention and put it in family status on std of review says under s.28 FCA this is an error of law, and JR not appeal its simply an interpretive question no PC and already seen in Zurich that HRC doesnt deserve deference but also adopts LaForest LaForest: looks at ordinary meaning gave words their plain and ordinary meaning which he says does not support same-sex couples in family status he says that Parliament is just using the term in the ordinary, dominant sense on std of review, says specialized boards frequently have strong PCs, but that doesnt happen here, so leg must be thinking deference crts also willing to show deference for expertise HR tribunal not analogous to labour boards or specialized tribunals where even in absence of PC, will give deference for expertise its not binding on all parties they are given such broad powers that they never develop expertise most HR tribunals are ad hoc, appointed as needed, whereas a permanent board develops expertise with policy issues and considerations an outsider wouldnt think of (but will defer to ad hoc arbitrator cause picked by parties) where the decision affects societal values at large, shouldnt defer HR expertise relates to fact-finding but not to general questions of law therefore, very small zone where courts will defer to HRC LH-D (dissent): HR legislation deserves a large, liberal, purposive interp adhering to Charter values and objective of HR legislation tribunal deserves deference 41

Looks to reasons to defer: value in finality, variety and diversity in these bodies, respect for govtl decisions to create bodies, presumption of broad deference to bodies with broad powers, importance of expertise, deference depends on fact or law (when mixed, should have deference) looks to Bibeault factors: -purpose of act is equality without discrim, textual interpretation is family status should not be limited to narrow interp, purpose and intent interp is that parliament left ambiguity in leg up to tribunal, there is no one meaning to family status (inflexible defn does not accord with purpose of Act) Jon Doe No right of appeal or privative clause. Body to determine if release info. It is a specialized body, lack of prviative clause not determinative, using Mossop, this isnt an ad hoc board and not a decision re social value, administrator also has a broad mandate. Everything indicates deference. However, administrator misconstrued the Act about when to release information. So despite deference, this was subject to review as it went to his jurisdiction. Found: Act was ambiguous enough that administrators interpretation was reasonable and should not be interfered with. CUPE (1979) SCC During course of lawful strike, Union complained that the employer was replacing striking emp w managment personal contrary to PSLRA (NS). Controversy surrounded the interpretation of a clause in the act which provides that the E shall not replace the striking emp. The provision is v. ambiguous. 1) Assess Brds jurisdiction to deal with the issue before it. - Does legislation expressly put power to deal with issue in hands of trib? Yes, w/in Brds jurisd - parties, subject matter all w/in confines of Act. 2) Was Brds interpretation PU? PU = Acting in BF, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the prov. of natural justice or misinterp the prov. of the Act so as to embark on an inquiry or answer a question not remitted to it? (Nipawin (1974) SCC) Brds interp was not so PU that its construction cannot be rationally supported by the relevant legislation and demands intervention by the crt upon review. Indeed, Brds interp was just a reasonable as other interp offered

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(B) NARROW ERROR OF JURISDICTION - CORRECTNESS It is an error interpreting jurisdiction conferring or limiting language (substantively an error in fact-finding or stat interp to which the court concludes it need not defer after applying the Bibeault factors) TEST: Did legislature intend this question to be (exclusively) within the jurisdiction conferred on this tribunal? (and the courts therefore to defer to brds decision) if NO, board has no power to embark to determine if yes, run through Bibeault factors Standard of review is correctness The board can commit such an error: at outset (by embarking at all Dayco, PSAC2), in the middle (in gathering evidence or in interpreting statute Bibeault, PSAC1), or at the end (in its remedial order National Bank) Note: if no deference is due because the term can be or should be interpreted by courts or must be interpreted correctly, this must mean the legislature didnt intend its meaning to be the special province of the board this doesnt mean the disputed phrase is one of interpreting jurisdiction conferring or limiting language but merely one not attracting the patently unreasonable standard or not meant to be shielded to any degree by the privative clause Bibeault (1998) SCC school brd applies for tenders after terminating its K with a co. whose emp were on a lawful strike U argues co. was a successor emp bound by CA question whether labour commission in deciding whether there was a transfer of rights and obligations under the Act, perform an act which was within their jurisdiction? Held: must adopt a pragmatic and functional approach to JR: focuses crts inquiry directly on legislators intent and not on isolated provision is better suited to concept of jurisdiction and consequences that flow from a grant of powers puts renewed emphasis on the superintending and reforming function of the superior courts in this case, labour tribunals do not have jurisdiction to decide whether or not there has been an alienation their powers only kick in once there is an alienation the provision does not make this question contingent on the boards opinion alienation is a general term of law crts have been interpreting this for ages PSAC (1) (1991) SCC govt created educational program for inmates in fed pen-service provided by govt employment govt decided to privatize and K out PSAC filed application seeking declaration that employee = employee of federal govt and member of B.U. issue was whether brd empowered to define what constitutes an employee within the meaning of PSSRA jurisdiction set out in s.33? Sopinka: said board has no jurisdiction the wording is decisive express defn of employment in s.2 of Act shows a clear intention by Parliament that it has decided category of employment over which board is to have jurisdiction there is no express provision giving brd definitional power as in other statutes said mistake of brd was using its expertise all other factors add up to defer, but Parliament trumps this element is conclusive Cory (dissent): all factors add up to deference in defining employee, brd carried out a function at the heart of its specialized jurisdiction integral to brd fulfilling its function would have held them to pat. unreasonable standard defer PSAC (2) (1983) SCC govt approves work force adjustment policy to help impact of layoffs policy incorporated as part of CB agreement with PSAC soon after, work is K out PSAC grieves and govt claims brd without jurisdiction as brought under wrong section of PSSRA (s.92 & s.99 all grievances fall into one policy v. individual) Cory: said all factors add up to deference expertise by board 43

ss.92 and 99 set out basis for and parameters of jurisdiction of brd in this sense, the board must be correct in deciding whether it has jurisdiction to consider issues presented to it (its jurisdiction limiting between the 2 sections limiting that individual grievances cant be policy) brd correctly assumed jurisdiction and correctly held that the provision of its empowering legislation clearly indicated that it had jurisdiction to consider the very issue LH-D (dissent): says you cant tell which one is the correct one until you look at the CA and read the context so you need specialized expertise therefore we must defer to the board the question of jurisdiction at issue question of to whom obligation is owed is one which cannot meaningfully be separated from question of whether obligation itself exists the questions are intertwined (McIntyre says this is ridiculous the board can hear any of the 2, so there shouldnt have been an appeal in the first place) Note: contract interpretation in every other case is expertise and defer, but not in these 2 cases therefore, there is always an exception can argue either way Dayco (1993) SCC -distinguishes between strong and weak PC Co moved to mexico wants to stop making retirement payments U argues Co cant back out Co argues no longer CA under which to grieve them Arbitrator which has no jurisdiction, grievance not arbitrable LaForest: while the arbitrator has jurisdiction in the strict sense to interpret provision of CA in course of determining arbitrability of a matter under the CA (standard =PU), when determination if the CA even exists as foundation for Arbitrators jurisdiction, standard = correctness arbitrators power is limited within the wording of the Act to the interpretation and application of the CA arbitrator only has limited PC, they have less of a wide ranging policy function than actual labour boards, notion of vesting is a general law issue outside of arbitrators sphere of expertise on finality clauses ( s.44 (arbitration of grievances) does not provide arbitrators with the same protection (final and binding) as the strong and explicit PC of s.108 of LRA (labour boards) the legislator did not bring arbitrators within s.108, so it did not intend them to have the same degree of deference crts should not mechanically defer to tribunal simply because of presence of finality clause, such clauses signal deference but must be considered in the context of the type of question and nature and expertise of tribunal Cory: disputes in labour law must be resolved quickly and finally -on finality clauses ( arbitrators have traditionally been granted and should get the same high curial deference as brds b/c involved in volatile and sensitive field -to open debate to various judicial interpretation of words of any PC as to whether it is more or less privative in nature will only encourage a proliferation of litigation and interminably delay a final resolution, defeat aim of legislators and complicate issues All agree that on issue of K interpretation, it is under the very purpose and expertise of the board, and should defer to arbitrator (standard = PU) Bradco (1993) SCC prolonged strike then Co agrees to no double breasting in exchange for big concessions by union after strike, non-U arm engages non-U employees issue: what is appropriate standard of review from which to assess the arbitrators decision given the absence of a full PC? Can arbitrator and brd rely on extrinsic evidence in interpreting CA (yes if terms of CA not clear and unambiguous and not an unreasonable approach) CA said if no full PC, std is correctness Sopinka: mandatory arbitration clause says final and binding leg provision must be interpreted in light of tribunal and type of questions entrusted to it have to determine what govt meant by final (run Bibeault) phrasing short of full PC, still has some effect but there are differences while legislator did not intend to restrict JR of arbitrators decision, deference is still due arbitrator dealt with interpretation and application of CA which are within the core of arbitrators expertise and experience clause does not protect him from review, but also does not provide for appeal legislator intended some judicial restraint therefore, the court affirms Daycos weak v. strong PC, but allows deference due to expertise in this area

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Note: maybe, if Southam had already been decided, this cases would have a standard of reasonableness due to the weak privative clause

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(C) BROAD JURISDICTIONAL ERROR - PATENTLY UNREASONABLE Assuming that the decision maker has the initial jurisdiction to determine the matter, the next question is whether its finding was patently unreasonable. Bibeault says: if the question of law at issue is within the tribunals jurisdiction (narrow sense), it will only exceed its jurisdiction (in the broad sense) if it errs in a PU manner; a tribunal which is competent to answer a question within its statutory powers may make errors in doing so without being subject to JR Usually the matter attracts the deference intended by the PC and so the court need not agree with the decision In the case of statutory interpretation, the interpretation needs to fall within a range of meaning the statute can reasonably bear (CUPE), but in the case of facts, there must be some evidence (rather than no evidence) sustaining the boars decision and the application of the facts as found to law must be reasonable Patently Unreasonable Finding of Fact or Law -s.2(3) JRPA or s.18.1(4)(c) Fed Crt Act 1. No evidence/no facts = error of law (agency exceeded its jurisdiction) -see Keeprite 2. Interpretation of Act which affects proper finding of facts: a. Act was interpreted correctly, but applied incorrectly (right interp but no fact exists consistent evidence) b. Act was improperly interpreted (facts dont fit into act) Procedural Unfairness Standard of Review: CUPE (1979) SCC during course of lawful strike, U complained that the employer was replacing striking employees with management personal contrary to PSLRA issue of interpretation of a clause in the act which provides that the E shall not replace the striking employee the provision is very ambiguous Dickson: on brds jurisdiction to deal with issue legis put power to deal with issue in brds jurisdiction on whether boards interpretation was PU: -said interp was not so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the crt upon review the brds interp was just a reasonable as other interp offered on factors: said it was a unique statute and specialized board there was a large PC (statutory direction to defer), have cumulative experience and called for policy as well as facts, the interpretation of that provision on strikes is at the heart of the specialized jurisdiction ( all factors add up to deference John Doe after acquitted of assaulting police officers, recc that officers be investigated requested release of investigation report police tried to get JR to stop disclosure no right of appeal and no privative clause everything adds up to deference even though without PC its a new act, unique expertise developed in interpreting act, crts have never done this type of thing before the commissioner is familiar with this and only this as well, using Mossup, its not an ad hoc board commissioner has broad mandate and doesnt go to basic social values deferred but found that it was PU they misread the section and it was a PU interpretation National Corn Growers (1990) SCC Am govt passed act which subsidized Am grain producers Cdn corn producers contend that subsidized US grain corn caused and would likely cause material injury to producers of like goods in Can without duty imposed issue is whether brds decision was PU and standard/extent o inquiry this requires Wilson (dissent) first talks about why we should defer to specialized boards and discusses labour, telecommunications, international relations and financial markets as specialized (didnt discuss HR) says that when reviewing a brds decision for PU, one must not begin with the question of whether the tribunals conclusions are PU, rather we must ask whether the tribunals interpretation of the provisions is within its 46 with it hence no

constitutive legislation that define the way it is to set about answering particular questions is PU (dont look to brds conc based on reasonable interp of fact/law, look instead to how brds interp their leg) if the tribunal had not interpreted its constitutive statute in a PU fashion, then crts must not proceed to a wide ranging review of whether its conclusions are unreasonable says there is deference due here because of expertise of brd tribunal did not act PU was dealing with kind of issue it was established to deal with Gonthier (maj): he reviews everything he says in some cases, unreasonableness of a decision may be apparent without detailed exam of the record, and others it may only be understood upon an in depth analysis says the decision has to be looked at for PU (this is high scrutiny) (now this type of decision would be under std of unreasonableness from Southam) No evidence/no facts = error of law (agency exceeded its jurisdiction)

Keeprite (1980) ONCA labour arbitrator makes decision that there was a fight between 2 employees warranting dismissal U says no fight and arbitrator exceeded jurisdiction by making findings of fact unsupported by any evidence and question of affidavit evidence CA: said you can admit affidavit evidence on JR - absence of evidence is a jurisdictional error, so affidavit evidence is no evidence also said the affidavit evidence didnt show evidence of any fighting absence of proper evidence on an essential point but there was sufficient evidence to support a finding of a fight the standard of no evidence is = complete absence of evidence and no evidence is a jurisdictional error of fact s.2(3) JRPA allows for review of a DMs fact finding (see p.664 book). It is DM who must base, at least in part, their decision on evid before them. It applies both to DM who have power of JN (to act upon info and material not contained in evid before them - policy, discretion) and equally to those who do not. s. 2(3) is not ltd to CL requirements of error being on face of record and therefore allows for crt to review case for no evid even though absensce of evid not on face of record and thus allows affidavit evid to be tendered to support claim of error in tribs findings. Thus, Affidavit evid is admissible -- but only to show that there was an entire absence of proper evid on an essential point and thus to establish that there was jurisdictional error. In this case and other SCC, the courts regard the absence of evidence on a material fact as reviewable error by an administrative tribunal, even when there is a statutory provision precluding judicial revew. In this case, while arbitrator did not have any evid on this one aspect, there was suff. other evid to support his finding of a fight. to treat lack of evid on one point as suff grounds to quash would be to go beyond crts ltd supervisory function as to exercise one of an appellate nature. Federal Court Act s. 18.1(4)(d) allows a trial division to review on fact finding if there was an erroneous finding of fact made in a perverse or capricious manner or w/o regard for the material before it. This applies to federal board, commission or other tribunal (p. 670).

Quebec v. NEB (1994) SCC Some evid= suff NEB issued a conditional licence to Hydro-Quebec to export electricity to US. Validity of licence challenge on ground that the Brds findings that the social costs of the project would be recoverable was not based on any evid as Brd did not conduct a cost/benefit analysis of the proposal. Principle of curial deference, applied to the weighing of the evid by the Brd in the exercise of its discretion, cannot save a decision for which there is no foundation in evid or that is based on irrelevant considerations. Once the Brd decided that a particular factor is relevant to its decision, there must be some evid. to support the conclusion reached relating to it. (Which, in this case there was).

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Fraser v. PPSFB (1985) SCC Some evid = suff Applicant challenged a finding of a board adjudicator that the applicants political activities had impaired his effectiveness as a civil servant. Although Brd had no direct evid that Frasers effectiveness was impaired it decided that there was (1) impairment to perform effectively b/c of the inferred effect on clients and (2) impairment to be a public servatn b/c of the special and impt charac of that job. Adjudicator did not err. Rule of direct evid is not absolute. Where occupation is important and sensitive, and substance, form, content of political activities/criticism is extreme - an inference of impairment can be drawn. It is open to adjudicator to infer impairment on whole of evid, if there is evid of a pattern of behavour which an adjudicator could reasonably conclude would impair the usefulness of public servant. Interpretation of Act which affects proper finding of facts: Act was improperly interpreted (facts dont fit into act) Mossop (1993) SCC On Standard of Review Lamer Tribunal interpreted at statute which is a question of law. Absent a privative clause, courts have shown deference. However, an HR board does not have the kind of expertise that should enjoy deference on matters other than findings of fact (Zurich) La Forest Deference shown to tribunals such as labour boards b/c they have strong privative clauses showing legislative intention to limit judicial review. No such clause in CHRA. Thus, nothing prevents courts from exercising its normal supervisory role. Unlike other tribunals, HR is does not require the level of expertise such as labour. It is also established ad hoc to settle a particular dispute. The expertise of HR is fact finding and adjudication in a human rights context, not to interpretation of legislation. Shouldnt defer when effects broad public. Can defer when only affects parties. Expertise (assessed by people, permanence, and scope of regulatory responsibility) is factor in giving deference or not. LH-D (Dissent) see above.

Lester (1990) SCC interpretation of sale of business for labour law purposes using a certain definition of sale, said there is NO EVIDENCE to support any sale and thus no evidence to support the boards conclusion absence of evidence renders boards decision PU brd only able to arrive at their conclusion by constructing Act in an unprecedented and unjustified manner (Sheila - this is not really a case about no evid but rather is about proper interpretation. Should have concluded that brd intepreted the phrase in a patently unreasonable way and thus that it is an error of law) Cadillac Fairview U trying to organize with leaflets on property issue with s.64 LRA was CF acting on behalf of Eatons prohibiting solicitation is stopping an organized drive (must show proof of anti-U intent) and was there intent brd said yes and intent CA said board protected by PC and is an expert board and can make inferences on motive, it is not a PU finding CA also said there was evidence (since CF argued no evidence of acting on behalf of Eatons) no evidence means a complete absence of evidence Keeprite crt defers on fact finding and whether there was an ULP and a breach of the Act it is in expertise of board the board is interpreting K provisions, no legal interpretations Is a Remedy ordered subject to the std of Patently Unreasonable? Royal Oak Mines (1996) SCC there were 2 challenges: the first was on bad faith bargaining the board are experts and so defer on that std is PU (even if std is correctness, they would be correct the 2nd challenge was on the remedy ordered s.99(2) gave broad power to brd to order remedies for breach of any clause amd order what is equitable as long as it is with purpose of code

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TEST: where a court is asked to review the soundness of a labour board ordered remedy, it is subject to PU standard unless it is outside the boards narrow jurisdiction there are 4 grounds where a remedy will be found PU: 1. if remedy is punitive 2. where remedy infringes the Charter (Ross) 3. where no rational connection between the breach of the code, its consequences, and the remedy ordered 4. where it contradicts the objects and purposes of the code the court split 4:3 and disagreed on the purpose of the LRA majority looked at last 2 factors and said they weighed the purpose and remedy and it was within their scope of power the std is PU and it was found to be not PU there was a rational connection and it affirmed the purpose of the code minority said the promotion of free CB is most important, the order made them agree to a CA and this was outside their scope of power, so the std is correctness (they exceeded their jurisdiction) CLASSIFYING ERRORS OF JURISDICTION

did legislation intend this matter to resolved exclusively by this board? if you dont know the answer, then you must run the Bibeault factors if you run the Bibeault factors and decide that the courts should not defer, then what you are really saying is that you are applying the correctness standard and not that it is after the fact, jurisdiction conferring or limiting language its only correctness, but can still be called an error of jurisdiction (narrow)

Bibeault factors 1) Wording of the Act: is there a PC, if so how fat or weak? it indicates legislature intent, is there an appeal clause, if so how fat or thin?, is it ambiguous, ordinary or plain meaning?, did it interpret the language? 2) Purpose of the Act: allows for speedy resolution (labour), HR has special purpose, 3) Purpose of Board: labour-same as above and field sensitivity and final decisions, policy dimension, high volume? 4) Expertise of Board: ad hoc v. permanent, Bradco and Southam say its most important factor, labour expertise in most situations (strikes, ULP, CA interp) and HRC not experts at social science facts, does it deal with policy which is field sensitive and not adjudicative (defer)?, does statute define term? 5) Nature of Problem: is it general question of law (dont defer)? Or a matter interpreting a K? is it fact-specific? Or mixed fact and law (Southam)?,is it at heart of boards expertise? Will decision have impact on society at large (dont defer)? -goes with expertise OTHER RELEVANT CASELAW Cooper (1996) SCC mandatory retirement of airline pilots at age 60 s.15 of HRA allowed mandatory retirement if usual in occupation commission has jurisdiction to see whether complaints come in ground of jurisdiction issue: does the law by explicit grant, give this board power to look at general questions of law (questions of constitutionalism are general questions of law) majority (LaF, S, G, I):-no administrative tribunal has an independent source of jurisdiction they can only, as a matter of statutory interpretation determine whether Parliament has granted them, though its enabling statute, either explicitley or implicitely, the power to determine questions of law if so, they can address constitutional issues including the constitutionality of its own statute the intent to confer a power to interpret general law on tribunals implies an intent to confer on tribunals a power to refuse to apply laws which violate the Charter given the limited jurisdiction of the commission, it follows that a tribunal appointed under the Act must also lack jurisdiction to declare unconstitutional a limited provision of the Act minority (Lamer): - it is illogical to imagine that any legislature meant a tribunal to be able to quash its own legislation you cant determine constitutionality of statutes that create you many of these tribunals were set up before the Charter a legislature would not knowingly pass constitutionally suspect legislation

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NOTE To truly protect a tribunal, you should: write a clause acknowledging expertise of people appointed to tribunal put Brd shall have power in every clause write a killer PC write a strong purpose clause which stresses expertise of the tribunal members

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