Admin Law CANs

THE
ADMINISTRATIVE STATE AND THE RULE OF LAW .................................................................................... 5

WHAT IS ADMINISTRATIVE LAW? ............................................................................................................................. 5
THE ADMINISTRATIVE STATE: DELIVERING PUBLIC PROGRAMS ................................................................................ 5
The Subject Matter of Public Administration ................................................................................................................ 5
Institutions of the Administrative State ........................................................................................................................ 6
POLITICAL & ADMIN REDRESS OF INDIVUAL GRIEVANCE .......................................................................................... 8
COURTS & ADMIN AGENICES .................................................................................................................................... 8
Judicial Remedies of Admin Law – prerogative writs .................................................................................................... 9
THE ROLE OF JUDICIAL REVIEW, P. 31 ............................................................................................................ 9
Baker v Canada (Minister of Citizenship and Immigration), (1999), 2 SCR 817 ............................................................. 9
REMEDIES FOR UNLAWFUL ADMINISTRATIVE ACTION ................................................................................. 16
JUDICIAL REVIEW AT COMMON LAW ..................................................................................................................... 16
Government in the Conduct of Business ................................................................................................................. 16
Volker Stevin NWT (’92) Ltd v Northwest Territories (Commissioner) (1994), p. 932 ................................................. 16
Air Canada v Toronto Port Authority, 2011, p. 936 ..................................................................................................... 17
Bodies Regulating Access to Occupations and Professions ...................................................................................... 20
R v Halifax-‐Dartmouth Real Estate Board, ex parte Seaside Real Estate Ltd (1963), p. 942 ........................................ 20
Ripley v Investment Dealers Association of Canada (No2), (1990), p. 945 .................................................................. 21
The Impact of Statutory Remedial Regime, p. 948 .................................................................................................. 23
The Federal Courts Act p. 948 ..................................................................................................................................... 23
The Judicial Review Procedures Act of BC and ON, p. 949 .......................................................................................... 23
Excluded Public Bodies ................................................................................................................................................ 24
Allocation of Review Authority: fed court & prov superior courts ........................................................................... 25
Relevant Provisions of the Federal Courts Act ............................................................................................................ 25
History and Constitutional Considerations, p. 962 .................................................................................................. 25
CH 19 – DISCRETION OF THE COURT ............................................................................................................ 26
ALTERNATIVE REMEDIES ........................................................................................................................................ 26
Harelkin v University of Regina, (1979), SCC -‐ 2SCR 561 (Sask), p. 1051 ..................................................................... 26
Canadian Pacific Ltd v Mastsqui Indian Band (1995), 1 SCR 3, p. 1060 ....................................................................... 28
PREMATURITY, P. 1066 ........................................................................................................................................... 30
Howe v Institute of Chartered Accountants of Ontario (1994), CA, p. 1067 ............................................................... 30
Air Canada v Lorenz (2000), 1FC 494 (TD), p. 1071 ..................................................................................................... 32
MOOTNESS ............................................................................................................................................................ 34
DELAY .................................................................................................................................................................... 35
Friends of the Oldman River Society v Canada (Minister of Transport) (1992), p. 1081 ............................................. 35
SUBSTANTIVE REVIEW, p. 629 ..................................................................................................................... 36
THE STANDARD OF REVIEW ......................................................................................................................... 36
Dunsmuir v New Brunswick, 2008, SCC, p. 634 ........................................................................................................... 37
LINGERING QUESTIONS AFTER DUNSMUIR, p. 645 ................................................................................................. 40
CH 10 -‐ PRIVATIVE CLAUSES & STATUTORY RIGHTS OF APPEAL, p. 651 ........................................................ 41
PRIVATIVE CLAUSES IN THE STANDARD OF REVIEW ANALYSIS ................................................................................ 41
Hibernia Management and Development Company LTD v Canada-‐Newfoundland and Labrador Offshore Petroleum
Board (2008), p. 656 .................................................................................................................................................... 41
RIGHTS OF APPEAL IN THE STANDARD OF REVIEW ANALYSIS ................................................................................. 42
THE CONSTITUTIONAL LIMITS OF PRIVATIVE CLAUSES, p. 660 ................................................................................ 42
Courts and tribunals: constitutional background .................................................................................................... 42
STATUTORY REMOVAL OF JR .................................................................................................................................. 43
1
CREVIER V AG (QUEBEC) ET AL (1981), SCC, P. 665 ..................................................................................................... 43
Ch 11 Expertise & Statutory Purpose (2 & 3rd factors in standard of review analysis p 673 ........................... 44
Pezim v British Columbia (Superintendent of Brokers) (1994), p. 676 ........................................................................ 44
Canada (Director of Investigation and Research) v Southam Inc (1997), p. 678 ......................................................... 45
Bishop v Alberta College of Optometrists (2009) ABCA, p. 684 .................................................................................. 47
STATUTORY PURPOSE ............................................................................................................................................ 47
CH 12 – NATURE OF THE QUESTION, P. 703 ................................................................................................. 47
Factual Questions, p. 705 ....................................................................................................................................... 47
Dr Q v College of Physicians and Surgeons of British Columbia (2003), p. 706 ........................................................... 47
Question of Law ..................................................................................................................................................... 49
Pushpanathan v Canada (Minister of Citizenship and Immigration) (1998), p. 714 .................................................... 49
Elgie v Alberta (Worker’s Compensation, Appeals Commission), 2009, p. 722 ........................................................... 51
Nor-‐Man Regional Health Authority Inc v Manitoba Association of Heath Care Professionals (2011), p. 723 ........... 51
Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, 2013, p. 725 ............ 51
Rogers Communications Inc v Society Composers, Authors and Music publishers of Canada, 2012, p. 727 .............. 51
Investment Dealers Association of Canada v Dass, 2008, BCCA, p. 728 ...................................................................... 52
Discretionary and Policy Questions in the Standard of Review Analysis .................................................................. 52
Canada (Citizenship and Immigration) v Khosa (2009), p. 731 .................................................................................... 52
The Disaggregation Dilemma: Levis and Via Rail ..................................................................................................... 53
Ch 13 -‐ Jurisdictional Questions & Origins of Standard of Review Analysis, p. 743 ....................................... 54
Guerin (2017 SCC 42) ................................................................................................................................................... 55
The “Preliminary Question” Doctrine, p. 754 .......................................................................................................... 55
The Origins of the Standard of Review Analysis: CUPE (1979) ................................................................................. 55
CUPE v NB Liquour Corporation (1979) p. 756 ............................................................................................................ 55
The Concept of Jurisdictional Error ......................................................................................................................... 57
Public Service Alliance of Canada v Canadian Federal Pilots Association, 2009, p. 750 .............................................. 57
Alberta (information & Privacy Commissioner) v Alberta Teachers’ Association 2011, p. 746 ................................... 59
CH 14 Application of Standard of Review, p. 769 ......................................................................................... 59
Pushpanathan v Canada (Minister of Citizenship and Immigration) 1998, p. 770 ...................................................... 59
Northrop Grumman Overseas Services Corp v Canada (AG), 2009, p. 780 ................................................................. 61
Stewart v Workplace Health, Safety and Compensation Commission, 2008, NBCA, p. 781 ....................................... 61
The Establishment of a Single Deferential Standart ................................................................................................ 63
Dunsmuir v New Brunswick, 2008, p. 785 ................................................................................................................... 63
Reasonableness Review ......................................................................................................................................... 63
Canada (Citizenship and Immigration) v Khosa (2009), p. 791 .................................................................................... 64
Catalyst Paper Corp v North Cowichan (District) 2012, p. 794 .................................................................................... 64
RELEVANCE OF FACTORS IN STANDARD OF REVIEW ANALYSIS, p. 802 .................................................................... 66
Dr Q v College of Physicians and Surgeons of British Columbia, 2003, p. 802 ............................................................ 66
Reasonableness Review and Statutory Interpretation, p. 804 – 816 ............................................................. 67
Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (2013) ............... 67
McLean v British Columbia (Securities Commission) 2013, p. 818 .............................................................................. 69
CORRECTNESS REVIEW IN THE GUISE OF REASONABLNESS? ................................................................................... 70
Dunsmuir v New Brunswick 2008, p. 822 .................................................................................................................... 70
Reasonableness and Giving of Reasons P. 824 ........................................................................................................ 71
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011, p. 825 ............. 71
Alberta (Information and Privacy Commission) v Alberta Teachers’ Association, 2011, p. 827 .................................. 71
CH 15 Jurisdiction of tribunals and the Constitution, p. 845 ......................................................................... 72
2
Nova Scotia (Worker’s Compensation Board) v Martin; v Laseur (2003), p. 845 ........................................................ 72
Tranchemontagne v Ontario (Director, Disability Support Program) 2006, SCC, p. 859-‐60 ........................................ 75
Constitutional Remedies, p. 861 ............................................................................................................................. 75
R v Conway (2010), SCC, p. 861 ................................................................................................................................... 75
OAK’S OR ADMIN LAW FRAMEWORK? ................................................................................................................... 77
Dore v Barreau du Quebec (2012) SCC, p. 877 ............................................................................................................ 77
The Use and Misuse of Discretion, p. 891 .................................................................................................... 79
Laws, Rules, and Discretion, p. 893 ......................................................................................................................... 79
Traditional common law doctrine for review of exercise of discretion, p. 894 ......................................................... 80
The Subsuming of Review of Discretionary Decisions within the Standard of Review Analysis, p. 896 .................... 80
Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) 2012 SCC, p. 897 ................................... 80
Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC, p. 900 ............................................................ 81
A Closer Look at the Pre-‐Baker Review of Discretionary Decisions .......................................................................... 83
Shell Canada Products Ltd v Vancouver (City) 1994, SCR BC p. 906 ............................................................................ 83
Unreviewable Discretionary powers? P. 916 ........................................................................................................... 84
Council of Civil Service Unions v Minister for the Civil Service (1985), p 917 .............................................................. 85
Part 2 – Procedure, p. 61 ............................................................................................................................. 85
The Traditional Common Law Doctrine ................................................................................................................... 86
Cooper v Board of Works for Wandsworth District (1863), Eng CP, p. 75 ................................................................... 86
The Modern Common Law Doctrine: Dimensions & Limitations of Procedural Fairness, p. 78 ................................. 87
Nicholson v Haldimand-‐Norfolk Regional Police Commissioners (1979), p. 78 ........................................................... 87
Elaborations of Modern Doctrine ........................................................................................................................... 88
Knight v Indian Head School Division No 19 (1990) SCR, p. 84 .................................................................................... 88
Thresholds, p. 101 .................................................................................................................................................. 91
Canada (Attorney General) v Inuit Tapirisat of Canada (1980), p. 107 ........................................................................ 92
Canadian Doctors for Refugee Care v Canada (Attorney General) 2014, p. 112 ......................................................... 93
Homex Realty v Wyoming (1980), ont p. 116 .............................................................................................................. 93
Canadian Association of Regulated Importers v Canada (Attorney General) 1993, Fed court of appeal p. 121 ......... 95
Re Webb and Ontario Housing Corporation (1978), p. 126 ......................................................................................... 95
Hutfield v Board of Fort Saskatchewan General Hospital District No98 (1986), p. 130 .............................................. 96
Re Abel and Advisory Review Board (1979), p. 137 ..................................................................................................... 98
Legitimate Expectation Concept ............................................................................................................................. 98
Reference re Canada Assistance Plan (BC) (1991), p. 149 ........................................................................................... 99
Apotex Inc v Canada (Attorney General) (2000), p. 154 .............................................................................................. 99
Canada (Attorney General) v Mavi (2011), p. 160 ..................................................................................................... 100
Agraira v Canada (Public Safety & Emergency Preparedness) (2013), p. 164 ........................................................... 101
Mount Sinai Hospital Center v Quebec (Minister of Health & Social Services) 2001, p. 168 .................................... 102
Issue of Thresholds and Nature of Procedural Fairness in Constitutional and Quasi-‐constitutional enactments, p.
175 ....................................................................................................................................................................... 103
Authorson v Canada (Attorney General) 2003, p. 179 .............................................................................................. 103
Singh v Canada (Minister of Employment and Immigration) (1985), p. 183 ............................................................. 104
Charkaoui v Canada (Citizenship and Immigration), 2007, SCC, p. 199 ..................................................................... 105
Ch 4 – the Level and Choice of procedures, p. 247 ..................................................................................... 106
Goldberg v Kelly, 1970, US, p. 256 ............................................................................................................................. 107
Mathews v Eldridge, US, p. 259 ................................................................................................................................. 108
Suresh v Canada (Minister of Citizenship and Immigration), 2002, SCC, p. 267 ........................................................ 109
SPECIFIC CONTENT ISSUES ......................................................................................................................... 110
Pre-‐hearing: ......................................................................................................................................................... 111
3
RE CENTRAL ONTARIO COALITIONAN AND ONTARIO HYDRO, 1984 ONT DIV CT, P. 289 .......................................... 111
Wilkes v Canada (Citizenship and Immigration), 2009, p. 282 .................................................................................. 112
Zeliony v Red River College, 2007, MBQB 308, p. 283 ............................................................................................... 113
R v ON Racing commission, Ex Parte Taylor, 1970, p. 283 ......................................................................................... 113
R v Chester, 1984, ONT HC, p. 281 ............................................................................................................................ 113
ON (Human Rights Commission) v ON (Board of Inquiry into Northwestern General Hospital), 1993 (Ont Div Court),
p. 295 ......................................................................................................................................................................... 114
May v Ferndale Institution, 2005, SCC, p. 301 ........................................................................................................... 115
Clifford v Ontario (Attorney General) (2008), p. 303 ................................................................................................. 116
SASKATCHEWAN Human Rights Commission v Kodellas (1989), Sask CA, p. 305 ..................................................... 117
THE ACTUAL HEARING .......................................................................................................................................... 117
MASTERS V ONTARIO (1994), Div Ct, p. 310 .............................................................................................................. 117
Khan v University of Ottawa (1997), p. 314 ............................................................................................................... 118
Howard v Stony Mountain Institution (1985), FCA, p. 332 ........................................................................................ 119
New Brunswick (Minister of Health and Community Services) v G(J), 1999, p. 336 .................................................. 119
Gallant v Canada (Deputy Commissioner, Correctional Service Canada) (1989), FCA, p. 372 ................................... 120
Mission Institution v Khela, 2014, SCC, p. 379 ........................................................................................................... 121
POST-‐HEARING ..................................................................................................................................................... 122
Duty to give reasons, P. 424 ...................................................................................................................................... 122
Newfoundland and Labrador v Newfoundland and Labrador Nurses’ Union case (2011, SCC) ................................ 122
MANITOBA LTD O/A LONDON LIMOS V UNICITY TAXI LTD (2012) MBCA, P. 426 ..................................................... 122
Wall v Independent Policy Review Director, 2013, ONSC, p. 429 .............................................................................. 123
WALL V OFFICE OF THE INDEPENDENT POLICY REVIEW DIRECTOR (2014), ONCA, P. 435 ........................................ 124
Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (2011), p. 437 ........................... 124
BIAS AND LACK OF INDEPENDENCE, P. 439 ................................................................................................ 124
Bias: General Test ...................................................................................................................................................... 125
United Enterprises Ltd v Saskatchewan (Liquor & Gaming Licensing Commission), 1997, p. 447 ............................ 126
Paine v University of Toronto (1980), Ont CA, P. 452 ................................................................................................ 127
Large v Stratford (City) (1992), Div Ct, p. 456 ............................................................................................................ 128
Great Atlantic & pacific of canada v on human rights commission 1993, p. 456 ...................................................... 128
Howard Johnson Inn v Saskatchewan Human Rights Tribunal (2011), SKCA, p. 457 ................................................. 129
Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public utilities) (1992), p. 467 ........... 130
Old St Boniface Residents Assn Inc v Winnipeg (City) (1990), p. 472 ........................................................................ 131
Beaverford v Thorhild (2013), ABCA, p. 475 .............................................................................................................. 131
Save Richmond Farmland Society v Richmond (Township) (1990), p. 474 ................................................................ 131
Seanic Canada Inc v St John’s City, p. 476 ................................................................................................................. 131
Brosseau v Alberta Securities Commission (1989), p. 478 ......................................................................................... 132
Independence ...................................................................................................................................................... 132
Quebec Inc v Quebec (Regie des permis d’alcohol) (1996), p. 482 ........................................................................... 132
Ocean Port Hotel Ltd v BC (General Manager, Liquor Control & Licensing Branch) 2001 ......................................... 133
Saskatchewan Federation of Labour v Saskatchewan (2010) .................................................................................... 134

4

PART I – INTRODUCTION
THE ADMINISTRATIVE STATE AND THE RULE OF LAW
WHAT IS ADMINISTRATIVE LAW?
• Administrative law is branch of public law that deals w/ controlling gov machinery for carrying out
legislative programs
• Functioning of these decision makers
• Focus on common law principles – address relationship b/w courts and other stake actors
• Admin law has the closest affinity w/ constitutional law in that it concerns the legal structuring and
regulation of sovereign authority, both in the state’s relations w/ individuals and in the allocation of authority
among various institutions
• Admin law applies to a wide range of gov activity.
• It affects virtually all areas of law, even if peripherally, b/c in essentially all areas of law there is some
role for gov. & for authorization & constraint of regulatory activity.
• Admin law is pervasive b/c of extensive role & often integral role of gov. in modern society
• We are looking at general principles under which these decision makers function and their relationship to
the courts
• One of themes in text is tension b/w workings of admin decision makers and judicial intervention
o That tension reflects underlying theoretical tension b/w principles of rule of law and democratic
principle
• Principle of supremacy of parliament rather than judges
• State is intimately engaged in socio-economic life of nation. There is a wide range of programs, based in
some statutory act that affect our daily lives

THE ADMINISTRATIVE STATE: DELIVERING PUBLIC PROGRAMS
• Much of the subject matter of admin law is the law governing implementation of public programs,
particularly at delivery, where they are likely to have their most immediate impact on the lives &
rights of individuals
o Enacted through statutes
• More recent schemes focus on enhancing consumer protection or the protection of individuals from
i.e. discrimination
• Programs originate in the identification by gov of a problem (often through political lobbying & other forms
of public pressure) created by or not adequately addressed by operation of market or private law, often
stemming from inequalities of power
• Gov. then responds by:
o a)doing nothing
o b)using existing legal tools & institutions (crim law, taxation)
o c)creating new legal framework, administered by some agency other than courts of law,
designed specifically for this purpose => admin law

THE SUBJECT MATTER OF PUBLIC ADMINISTRATION
• P.5-9 – List of types of areas of public policy where there are admin making decision makers
• Employment. Employment relationship is extensively regulated by statutory programs. I.e. in labour law,
employees have a statutory right to be represented by a union of their choice. Union may apply to a labour
relations board to be certified as the sole bargaining agent for this group of workers. Other programs: are
subject to legislation: Human Rights, Health and Safety, Worker’s Compensation, EI, CPP/QPP

• Regulated industries. Operation of certain industries is subject to extensive statutory regulation.
Broadcasters (must be licensed), exploitation of natural resources, commercial transportation. CRTC,
National Energy Board, Marketing Boards, Transportation, Fin Institutions.
5
• Economic activities. Mergers & takeovers are scrutinized for their possibly adverse impact on
competition. Foreign investors who take over Canadian companies are subject to fed approval. Can.
Manufacturers are protected from unfair competition caused by importation of goods for sale at less than
the cost of production. Land use planning, municipal boards, copyright
• Professions and trades. Also governed by legislation to ensure competency and quality of work.
Trades – through process of licensing and regulating conduct (disciplinary committees). Power
disparities b/c professionals and consumer make the latter vulnerable to exploitation.
• Social control. Incarceration, incarceration for mentally ill.
• Immigration regulations. Regulates admission of non-citizens and authorizes detention and deportation.
• Human Rights. Public awareness & debate about social dimensions of discrimination led to the enactment
of statutory scheme for protection of human rights. Statutory schemes (apply to both private and public
sector).
• Income Support Programs – EI, worker’s compensation, child welfare
• Social Services - Social Safety Net, Health care, child welfare, police / fire services

INSTITUTIONS OF THE ADMINISTRATIVE STATE
• Principal institutions encountered in study of admin law & the role that each plays in design & delivery of
public programs in admin state

Legislatures
• Legislature is leading public forum where the most important political decisions taken in the name
of electorate are explained, debated, potentially approved.
• Role declined since senior Executive bodies (Prime Minister & Premiers) have centralized & consolidated
their powers
• Nearly all public programs originate with a statute enacted by prov or fed or territorial legislature to
create new legal rights & duties
• In addition to debating & approving legislation that established the program, legislature plays role in
subsequent administration (i.e. may consider regulations made by Cabinet or minister;; may question
Minister responsible for program in regard to operation of program)

Cabinet & Ministers
• Cabinet is made up of various ministers & is chaired by PM or premier, who assigns ministerial
responsibilities
• Cabinet adopts strategic policies, budgets, passes regulations & orders in council
• Usually divides tasks among series of subject-specific policy committees
• Members of Cabinet are responsible collectively to Parliament (or the legislature) for the conduct of gov
• Cabinet or individual Ministers may be empowered to supplement a statute w/ delegated legislature

Municipalities
• Municipalities exercise powers that are delegated by the prov legislature. I.e. police & fire services,
schools, child welfare, parks, roads, garbage-collection, public transport, building permits etc
• Members of municipal councils and trustees of local school boards are usually elected
• Elected members debate & pass bylaws
• Municipalities are subject to prov guidance & control
• Municipal officials exercise delegated statutory power in order to delivery many of programs. I.e.
public health inspector can close restaurant if it doesn’t comply w/ public health standards

Crown Corporations
• Established by statute to perform functions that private corporations neglected;; typically occupy powerful
position in the industry (monopoly);; in public ownership;; may be financed by gov. grants;; their boards are
appointed by gov;; report to legislature through the Minister responsible
• I.e. Can. Broadcasting Corporation, Canada Post Corporation, Canada Mortgage and Housing Corporation
6
• New changes: privatization, corporatization, reorganization accompanied by reduced gov fin stake

Private Bodies and Public Functions
• Some derive their legal authority entirely from CONTRACT rather than statute
• By virtue of their control they exercise over particular activities & nature of functions they perform, private
bodies may resemble admin agencies that otherwise discharge gov functions
o I.e. children’s aid societies are private organizations answerable to their own boards. They are
assigned coercive power;; operations are almost wholly funded by gov, at both prov & municipal
levels, policies & standards are prescribed
• Others: Universities, sports associations

Independent Administrative Agencies
• Boards / Tribunals / Commissions – subordinated agencies
• Similarities:
• 1)They enjoy a measure of independence from gov department with overall responsibility for the policy
area in which they operate.
o Ministers can’t direct what decision agency should make. In return, Minister is not politically
accountable to the legislature for the agency’s individual decision
§ However, members of agency are appointed by responsible Minister for short term which
may not be renewed;; agencies can be incapacitated by starving them of resources;;
o Cabinet can influence agencies’ decisions by: (1) issuing a policy guideline that agency must
consider (2) on appeal, change decision of the agency
• 2)Those who are liable to be affected by a decision are given opportunity to participate in decision-
making process by producing evidence & making submissions. Admin hearings may be informal or
similar to a real court
• 3)Typically operate at the “sharp end” of the administrative process – the point when a program is
applied to a person (i.e. person is not refugee, unfair dismissal of employee). Some agencies make
policies by having hearings
• 4)All admin agencies are specialized – they deliver a particular program or a part of it. I.e. agricultural
marketing boards set quotas to farmers so they don’t overproduce;; labour relations boards certify unions &
ensure that parties do not engage in unfair labour practices.

• Differences:
• 1)Policy-making mandate.
o Narrower. Agencies that determine individual rights based on past events/facts, have limited
degree of discretion.
§ I.e. human rights tribunals, labour arbitrators, refugee protection
o Broader. Guided more by their understanding of broad public interest than by impact of decision
on an individual.
§ I.e. agency which approves tariff structure for rates to be charged to telephone
subscribers or energy consumers
• 2)Structure.
o Similar to a court. I.e. professional discipline committee, social assistance denial
o More policy-making focused agency differs. They employ a large staff to provide expert economic,
financial, policy or legal analysis to reach best policy decision
• 3)Caseload
o Massive – Immigration & Refugee Board
o Small. Prov regulatory agency will have 1 or 2 large rate-making utility decisions
• 4)Place that they occupy in the overall decision-making process.
o Some only make recommendations to a body with final decision-making power. I.e. Commissions of
Inquiry
o Other agencies make the first & sometimes final decision.
• 5)Seriousness of impact on individual
7
o Deportation vs approval to build a deck on a house
• 6)Membership of agencies varies widely
• Agencies are part of gov in that they are responsible for advancing public interest by implementing
program they administer
• On the other hand, like courts they may conduct hearings & must justify their decisions
• They are engaged in a variety of activities: adjudication, rule-making, by-laws, enactment, policy-making,
furthering the policy, prosecutorial agencies (Securities commission), income support, research, advisory
bodies (Commissions of Inquiry – reach conclusions and give advise to gov how to address certain issue)

Independent Agencies or Courts?
• Independent agencies b/c:
• 1)Nature of decision making is more gov. than judicial
• 2)It may be desirable that decisions be made by other people than judges
• 3)More cost-efficient
• 4)More informal process may result in more expeditious decisions and reduce need for legal
representation

Administrative Tools
• Indep. Agencies often have more tools that courts
• I.e. courts discharge mandate solely through adjudication of cases
• Agencies like professional can require members to have certain education, licensing, training etc

POLITICAL & ADMIN REDRESS OF INDIVUAL GRIEVANCE
Legislative Oversight of the Administrative Process
• Involvement of legislatures w/ public programs doesn’t end w/ enactment of enabling statute
• Every province has officer of legislature called ombudsman, ombudsperson, citizen’s representative
o If you believe your case was wrongly decided by indep. Agency you can make complaint to
ombudsperson who will review your case and make recommendation (not legally binding)
• If recommendation is not acted on, ombudsperson may report matter to relevant committee of
legislature

Administrative Remedies
• Indep. Agencies often have their own Appeals – internal mechanisms for dealing w/ citizen’s grievances
• I.e. denial of ODPS > go to Social Benefits Tribunal

COURTS & ADMIN AGENICES
• Lawyers can be effective in pursuing client’s grievances through the media & various channels of political &
admin redress.
• However, public law litigation is remedy of last resort b/c 1)cost, 2)limited prospect of success, 3)even if
favourable decision, there is possibility that having corrected the legal error, administration may not change
substance of decision that generated complaint.

Role of Courts
• 1)Original - jurisdiction comes out from judges own development of jurisprudence. Sometimes you can
seek remedy directly from court, w/o recourse to admin avenues of redress.
• 2)Appellate Jurisdiction – only exists by statute. Emerging pattern that legislature will include statutory
right to appeal to a court from admin agencies where agency exercises power to make decisions that
restrict individual’s common law rights or refuse a significant security benefit.
• 3)Supervisory – comes out of common law – judges assumed for themselves the right to superintend
other bodies (Superior courts). Fed courts, which are statutory based rather than superior courts w/
8
inherent jurisdiction under common law – have been vested w/ supervisory jurisdiction over fed admin
agencies.

JUDICIAL REMEDIES OF ADMIN LAW – PREROGATIVE WRITS
• Courts exercised their supervisory jurisdiction under common law through remedies that were available
only in respect of public duties or powers
• They were known as prerogative writs:
o 1)Remedy of certiorari – used to quash or set aside a decision
o 2)Remedy of prohibition – used to order tribunal not to proceed in a matter
o 3)Remedy of mandamus – used to order performance of a public duty
• *4)Remedy of habeas corpus – determines legality of a person’s detention, either by private or public
officials, w/ a view of releasing unlawfully detained individual (not focus of our class)
• Since 1970’s courts & legislatures simplified law relating to remedies of judicial review (often by
creation of a single catch-all application for JR)
• Summarily court – no discovery (w/ writs) – operate on basis of Affidavit evidence;; can get hearing in a
couple of weeks (speedy mechanism for getting relief)
• 2 Remedies that existed at common law in private sector: Declaration and Injunctive relief. Statutes allow
use of such mechanism
• These applications are only available against public authorities. Not available in disputes b/w
citizens (contract, property)

Grounds of Review
• Procedural impropriety – admin agencies have legal duty to act in a way that is procedurally fair (i.e.
giving prior notice, reasonable opportunity to respond, impartiality). Agency which indicates that it doesn’t
intend to comply w/ duty of fairness or statutory required procedure, may be prohibited from proceeding to
a decision or be ordered to proceed according to proper procedure. Applicant can ask court to quash
decision that was made in breach of a procedural duty.
• Illegality – courts must determine scope of legal powers & duties of agency by interpreting relevant
legislation. Admin action that has no legal validity is not authorized by law.
• Unreasonableness – administrators have legal duty not to exercise their power unreasonably. Lack of
reasonableness is a ground for review. I.e. evidence to support material findings of fact on which agency
based decision.
• Unconstitutionality – breach of Constitution, Charter

THE ROLE OF JUDICIAL REVIEW, P. 31
BAKER V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION), (1999), 2 SCR 817
FACTS • Ms. Baker was a Jamaican who had lived in Canada for 11 years and had had four children
while living in Canada. Eventually she was diagnosed with schizophrenia (also post partum
depression) and applied for welfare. 2 children in Canada were in foster care and 2 w/
husband. She took back 2 children form foster care.
• Under s. 114(2) of the Immigration Act (now replaced with s. 25(1) of the Immigration and
Refugee Protection Act) the Minister had the authority to admit anyone to Canada where
they were satisfied, owing to H&C grounds, that admission should be allowed where it
otherwise would not be allowed.
• The government rejected her application, and started procedures to deport her as she had
been living in Canada illegally. She requested compassionate leave. She wanted to be
exempted from rule to apply from outside Canada on H&C grounds.
• Citizenship and Immigration Canada denied the request and provided no reasons for the
decision to refuse Baker's application for a discretionary admission to Canada. Baker's
counsel eventually obtained notes made by a subordinate officer at CIC who classified her
9
case as a "catastrophe" and seemed rather biased against her application. There were
guidelines for exercising the discretionary power, and they were also available to the public.
• Baker alleged that she was not accorded procedural fairness. She argued that her case
required an oral interview with the decision maker, notice to her children and the other
parent, a right for the children and other parent to partake in the interview, and notice of
the right to have counsel present in the interview.
• Further, she alleged that the decision maker was required to give reasons for his decision,
and that the aide's notes gave rise to a reasonable apprehension of bias.
• Federal Court – Trial Division dismissed appeal for judicial review. Officer gave decision, acted
in good faith “unless there is evidence to contrary, acted in good faith”. The fact that the
subordinate officer recommended to deny her application was irrelevant because it was the
other officer who made the decision (based on the subordinate officer’s notes). There was no
apprehension of bias.
• Court also held that Convention is not law in Canada. Executive branch has right to enter
into treaties but obligations have to be implemented by domestic legislation.
• PROF’s note: Primary difficulty w/ implementing this is to get provinces to agree (subject matter
children is jurisdiction of both, so both fed and prov gov should have legislation).
• Court stated “serious question of general importance” > “Given that the Immigration Act
doesn’t expressly incorporate language of Canada’s intl obligations w/ respect to the Intl
Convention on the Rights of the Child, must fed immigration authorities treat the best interests
of the Canadian child as a primary consideration in assessing an applicant under s.114(2) of
the Immigration Act (Minister may facilitate admission of person on H&C grounds).
• The Federal Court of Appeal limited its consideration to the question and found that the best
interests of the children did not need to be given primacy in assessing such an application,
which Baker appealed. Doesn’t deal w/ bias issue & issue of legitimate expectations. Deals
only w/ raised question – if interests of children should be primarily consideration. There was
federal jurisprudence that they were limited to answering only on posed question.
ISSUE (1) What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope
of appellate review?
(2) Were the principles of procedural fairness violated in this case?
(i) Were the participatory rights accorded consistent with the duty of procedural fairness?
(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural
fairness?
(iii) Was there a reasonable apprehension of bias in the making of this decision?
(3) Was this discretion improperly exercised because of the approach taken to the interests of Ms.
Baker’s children?
It is the third issue that raises directly the issues contained in the certified question of general
importance stated by Simpson J.
HELD Appeal allowed. There was violation of principles of procedural fairness owing to a
reasonable apprehension of bias and exercise of the H&C discretion was unreasonable
REAS L’Heureux-Dube

LAW
Stated Question
• If a question of general importance has been certified, this allows for an appeal from the
judgment of the Trial Division which would otherwise not be permitted, but doesn’t confine the
Court of Appeal or SCC to answering the stated question or issues directly related to it.
• All issues raised by the appeal may be considered.

Statutory Scheme & Nature of Decision
• Decision of whether H&C grounds exist is often made in the name of the Minister by
Immigration Officer
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• Officers are provided w/ set of guidelines, contained in Ch 9 of the Immigration Manual:
Examination & Enforcement.
o Guidelines instruct how to exercise discretion
o They are soft law
• Officers have to ask themselves what a reasonable person would do
• Although Officers are not expected to delve into areas which are not presented during
examination or interviews, they should attempt to clarify possible:
• a)H&C grounds (existence of “unusual, undeserved or disproportionate hardship would be
caused to the person seeking consideration if h/she leaves Canada)
• AND
• b) public policy considerations (i.e. married to Can, resident;; worked;; > “illegal de facto
resident”
• Guidelines also state that requirement to apply for PR abroad may result in hardship if
there is family dependency (not necessarily family by blood)

Procedural Fairness (DofF)
• Both parties agree that Duty of proc fairness applies to H&C cases since admin decision
affects “the rights, privileges or interests of an individual”
• All of circumstances must be considered to determine content of duty of proc fairness

(1) Factors affecting content of DofF:
• 1)Court must consider the nature of the decision being made & process followed in making
it. The closeness of the administrative process to the judicial process indicates that more
procedural entitlement is required.
o Decision-makers acting in adjudicatory role function similar to courts
o Oral evidence, submissions, examination/cross-examination of witnesses
o Set of legal principles is applied to evidence
• 2) The court must consider the nature of the statutory scheme and the terms of the statute
pursuant to which the body operates.
o Greater procedural protections/fairness are required when no appeal is provided, or
when the decision is determinative of the issue (final).
• 3) The court must consider the importance of the decision to the individual(s) affected.
o The more important the decision to the lives of those affected and the greater its impact
on those people, the more stringent the procedural requirements will be.
• 4) The court must consider the legitimate expectations of the person challenging the decision. If
claimant has a legitimate expectation that a certain procedure will be followed or a certain
result will be reached in his/her case (in Can law it’s limited to procedure, we have rejected
doctrine of legitimate expectation in substantive sense. Para 26), fairness may require more
extensive procedural rights. This step considers the administrative decision maker's regular
practices – they cannot backtrack on substantive promises previously made without according
significant other procedural rights.
• 5) The court must consider the choices of procedure made by the administrative decision
maker itself. When a statute gives a decision maker considerable deference to set its own
procedure, this will indicate less stringent procedural requirements. This factor is not
determinative.
• This list is not intended to be exhaustive and other factors might also be important.
• The values underlying the duty of procedural fairness relate to the principle that the individual,
or individuals, affected should have the opportunity to present their case fully and fairly, and
have decisions affecting their rights, interests or privileges made using a fair, impartial and
open process, appropriate to the statutory, institutional and social context of the decision.

APPLCIATION TO THE FACTS
2)Legitimate expectations.
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• Was duty of fairness affected by existence of a legitimate expectation based upon the text of
the articles of the Convention & the fact that Canada has ratified it? NO
• B/c Convention is not equivalent of a gov representation about how H&C applications will be
decided. Convention didn’t give rise to specific procedural rights above what is normally
required under procedural justice

3)Participatory Rights
• Factors used to determine type of participatory rights the duty of proc fair requires:
o 1)H&C decision is very different from judicial b/c it involves exercise of considerable
discretion & consideration of multiple factors (favours relaxed standard)
o 2)Its role is within statutory scheme as an exception to the general principles of Can
immigration law (favours relaxed standard)
o 3)No appeal procedure, although Judicial Review may be applied for with leave of the
Fed Court – Trial Division (favours stringent standard)
o 4)Decision has exceptional importance to lives of those with an interest in its result
(favours stringent standard)
o 5)Statute accords considerable flexibility to the Minister to decide on proper procedure,
& immigration officer does not conduct interview in all cases (favours relaxed standard)
• Although some factors suggest stricter requirements under duty of fairness, others suggest
more relaxed
• Balancing factors > duty of fairness is not simply “minimal”. Circumstances require a full
& fair consideration of the issues & claimant ^ others whose important interests are impacted
• However, oral hearing is not essential. She could present her case w/ evidence (letters from
psychiatrist & Children’s Aid Society) with the help of her lawyer in a written form
• Lack of an oral hearing did not constitute violation of requirements of procedural fairness,
particularly given the fact that several of the factors point toward a more relaxed standard.

4)The Provision of Reasons
• Prior to this decision court hasn’t addressed fully issue of reasons
• In certain circumstances the duty of procedural fairness will require provision of a written
explanation for a decision (i.e. when there is a statutory right to appeal and when decision has
important significance for the individual)
o Giving reasons is helpful to decision-maker
o Also of assistance to parties that appear before decision-maker to have explanation as
to why what they are seeking is not granted
o Easier if you want to appeal or for applying for JR
• In this case, decision was critical to future of applicant and thus reasons had to be provided.
• Reasons were provided in the form of notes of immigration officer upon request of applicant’s
lawyer (J departed from tradition view)
• Notes of subordinated officer are so closely associated w/ decision that was taken that we
attribute those notes & comments to the final decision-maker.
• Accepting such documents as reasons is part of the flexibility that is necessary.

• 5)Reasonable Apprehension of Bias
• Procedural fairness requires that decisions be made free from a reasonable apprehension of
bias by an impartial decision-maker
• Duty to act fairly & thus in a manner that doesn’t give rise to a reasonable apprehension of bias
applies to all immigration officers who play a significant role in making the decision
TEST for "reasonable apprehension of bias" from Committee for Justice and Liberty v National
Energy Board (case from late 70’s):
• [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded
persons, applying themselves to the question and obtaining thereon the required information.
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The test is what would an informed person, viewing the matter realistically and practically, and
having thought the matter through, conclude. Would he think that it is more likely than not that
the decision-maker, whether consciously or unconsciously, would not decide fairly”
• Decisions of immigration officers are individualized rather than general in nature and require
appreciation of diversity in Canada
• Well-informed member in our society would see bias in Officer Lorenzs’ comments
o He used capitals to highlight that applicant had a number of children > maybe it was
reason for her denial
o Stressed that he was mother with several children, w/ psychiatric condition & will be
burden on society despite the fact that doctor noted that mental illness can improve and
applicant will be productive member of society
Reasonable apprehension of bias proven - SUFFICIENT TO DISPOSE OF APPEAL but Judge
decided to address issues below:

D. Review of the Exercise of the Minister’s Discretion
• Addressing central question which led to this appeal. What approach should be taken to
children’s interests when reviewing exercise of discretion conferred by Act & Regulations
• Need to take Pragmatic & Functional approach to determine standard of review (to be
used in dealing w/ discretionary decisions) > the more discretion is left to decision-maker
the more reluctant should be the courts to interfere w/ the manner in which decision-makers
have made choices among various options.

Standard of Review in this Case
• There are 3 standards of review:
o Unreasonableness
o Reasonableness simpliciter (this case) meaning ordinary reasonableness
o Correctness
• To determine need to look at these factors determined in Pushpanathan case:
• 1)Presence or absence of privative clause
Privative clause is a clause or provision included in a piece of legislation by a legislative body
to exclude judicial review of acts and decisions of the executive by stripping the courts of their
supervisory judicial function.
• No such clause in Immigration Act, however, can commence judicial review w/ leave of the Fed
Court – Trial division. Existence of such provision means that lower level of deference should
be paid
• 2)Expertise of decision-maker. Minister or Minister’s delegate, thus, higher deference must be
paid. Minister has expertise, particularly by giving exemptions to ppl from normal requirements
• 3)Purpose of provision in particular, and Act as a whole.
• Decision involves discretion (exempting ppl on H&C grounds)
• Greater deference to be paid to Minister
• However, in favour of stricter standard, decision relates directly to rights & interests of an
individual in relation to the gov
• 4)Nature of the problem – especially if It relates to determination of law or facts
• Decision whether to grant an H&C exemption involves a considerable appreciation of facts of
person’s case & is not one which involves application or interpretation of definitive legal rules

Balancing of factors:
• In favour of deference b/c of highly discretionary & fact-based nature of the decision
• These factors must be balanced to arrive at appropriate standard of review
• Considerable deference should be accorded to immigration officers exercising the powers
conferred by legislature, given the fact-specific nature of the inquiry, its role within statutory
scheme as an exception, the fact that the decision-maker is the Minister, & considerable
discretion evidenced by statutory language
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• Yet absence of privative clause, the explicit contemplation of judicial review & individual rather
than polycentric nature of decision, also suggest that the standard should not be as deferential
as “patent reasonableness”
Conclusion: appropriate standard of review is reasonableness simpliciter

Was this Decision Unreasonable?
• Was decision & immigration officer’s interpretation of scope of discretion conferred upon him
unreasonable?
• If it can be characterized as reasonable > good, if not > decision can’t stand
• As per Southam: “An unreasonable decision is one that, in the main, is not supported by any
reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing
a conclusion on the reasonableness standard must look to see whether any reasons support it.
The defect, if there is on, could presumably be in the evidentiary foundation itself or in the
logical process by which conclusions are sought to be drawn from it. In particular, examination
of this question should focus on issues arising from the “serious question of general
importance” > approach to be taken to the interests of children when reviewing an H&C
decision
• The reasons of the immigration officer show that his decision was inconsistent with the values
underlying the grant of discretion. They therefore cannot stand up to the somewhat probing
examination required by the standard of reasonableness.
• Parliament’s intention that those exercising the discretion conferred by the statute act in a
humanitarian and compassionate manner
• A reasonable exercise of the power conferred by the section requires close attention to
the interests and needs of children. There was no serious weight given to interests of
children.
• Children’s rights, and attention to their interests, are central humanitarian and compassionate
values in Canadian society. Indications of children’s interests as important considerations
governing the manner in which H & C powers should be exercised may be found, for example:
see pages 52-54
1. in the purposes of the Act
§ objective of Act > facility reunion of family members in Canada (liberal
construction)
§ J decided that this phrasing was also consistent w/ keeping citizens within the
country so they continue to have relationship w/ close relatives
2. in international instruments
§ we can look to intl law even if it’s not implemented in domestic legislation
§ Looks at convention’s underlying value in answering the question as to whether
or not discretion was properly exercised
§ Convention’s values underline importance of being attentive to interests of
children
3. in the guidelines for making H & C decisions published by the Minister herself
§ one has to be attentive to interests of children
• The certified question asks whether the best interests of children must be a primary
consideration when assessing an applicant under s. 114(2) and the Regulations.
• The principles discussed above indicate that, for the exercise of the discretion to fall
within the standard of reasonableness, the decision-maker should consider children’s
best interests as an important factor, give them substantial weight, and be alert, alive
and sensitive to them.
• That is not to say that children’s best interests must always outweigh other considerations, or
that there will not be other reasons for denying an H & C claim even when children’s interests
are given this consideration.
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• However, where the interests of children are minimized, in a manner inconsistent with
Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision
will be unreasonable.
DISSENT
Iacobucci J (Cory J concurring)
• The certified question at issue in this appeal should be answered in the negative
• It is a matter of well-settled law that an international convention ratified by the executive branch
of government is of no force or effect within the Canadian legal system until such time as its
provisions have been incorporated into domestic law by way of implementing
legislation: Capital Cities Communications Inc. v. Canadian Radio-Television Commission
• We should not give effect to Convention that Parliament has not implemented
• Also raises issue of vision of powers
• If there had been Charter argument, they would be more open to look at this convention
• In a Charter case, we have rights of individuals & s 1 of Charter which says that rights are
subject to reasonable limitations as prescribed by law & are demonstrably justified in a free &
democratic society
RATIO PROCEDURAL FAIRNESS
• Baker – laid out of factors to determine extent of procedural fairness and to determine
standard of review when one is reviewing discretionary decision maker’s decision
• The values underlying the duty of procedural fairness relate to the principle that the individual,
or individuals, affected should have the opportunity to present their case fully and fairly, and
have decisions affecting their rights, interests or privileges made using a fair, impartial and
open process, appropriate to the statutory, institutional, and social context of the decision.
• The test for a "reasonable apprehension of bias" is what would an informed person, viewing the
matter realistically and practically, and having thought the matter through, conclude
(Committee for Justice and Liberty v National Energy Board test).
• In discussion of procedural fairness the court made some changes to jurisprudence that
clarified that legitimate expectations go to procedure & not substance
• Recognizes that in some cases written reasons might be required, oral hearing might be
required, practices of admin entities are relevant in trying to determine the level of procedural
fairness as required

SUBSTANTIVE REVIEW
• Although discretionary decisions are generally given deference, they must still respect
boundaries set by the statute, the Charter, the rule of law, the requirements of administrative
law, and the values of Canadian society.
• When deciding what types of interests must be considered in human rights decisions, look to
Canada's international obligations.
• Where the interests of children are minimized, in a manner inconsistent with Canada’s
humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be
unreasonable
Class notes
• Substantive decisions of admin decision-makers – courts were much less activist & exercised restraint w/
interfering w/ decisions of admin actors who Parliament vested w/ authority to make particular decision
• Interventionist vs restraint
• Extradition – Minister’s direct decision
• Natural justice. 2 aspects
• 1)certain types of decisions can only be made when you give individual chance to participate in the process
(provide evidence).
• 2)Decision-maker should be independent & free of bias
• Before, principles of natural justice applied to a limited set of decision-making of admin decision-makers
• Procedural fairness addresses both these elements > used for much broader range of admin actors
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REMEDIES FOR UNLAWFUL ADMINISTRATIVE ACTION
JUDICIAL REVIEW AT COMMON LAW
• Courts exercised their supervisory jurisdiction under common law through remedies that were available
only in respect of public duties or powers
• Judicial review of administrative action originated in the various prerogative writs by which the monarch,
through the court of King’s or Queen’s Bench, controlled the exercise of authority by officials who acted or
purported to act under royal or parliamentary warrant.
• Thus, the most common of these writs, certiorari, was associated in its early history with the proceedings of
inferior courts of record, as personified in magistrates and justices of the peace, and with the very early
administrative tribunals such as the commissioners of sewers
o was a process by which the formal record of a proceeding before such a body was delivered to the
court of King’s or Queen’s Bench for inspection so that the court was able “to be informed.”
o If the formal record revealed that the body was acting without jurisdiction or, somewhat later in the
development of the remedy of certiorari, that it had committed an error of law on the face of the
record, its process would be quashed.
• certiorari and the other prerogative writs (principally mandamus, prohibition, and habeas corpus) were
vehicles for ensuring that the administrative arms of government were kept under control
• system of review aimed at the control of public as opposed to private bodies.
• Important question: is this body sufficiently public in its origins, purposes, or powers to make it subject to
the supervisory authority of superior courts as exercised through judicial review?

THE REACH OF PUBLIC LAW REMEDIES
• Is the entity sufficiently public to apply admin law/JR? There no a bright line
• Later case law confined reach of public law remedies to bodies that were genuinely statutory
• Inquiry if body was sufficiently public in its origins, its purposes, or its powers was often determined by an
examination of whether it exercised a “statutory power”
• This often excluded JR of powers exercised under royal prerogative and even today, it sometimes causes
JR applications to be rejected when brought against gov bodies on the basis that they do not have a clear
warrant for existence in statute
Following case is an example of debate about public law & private law remedies in a modern context:

GOVERNMENT IN THE CONDUCT OF BUSINESS
VOLKER STEVIN NWT (’92) LTD V NORTHWEST TERRITORIES (COMMISSIONER) (1994), P. 932
FACTS • Advisory committee was established under a directive to a gov policy (not statute)
• Committee directive set our qualifying criteria – on what basis are we going to make or
designate a business as a “Northern Business”? And they would be given preference in
awarding gov contracts
o Also provided for an appeal process to a committee of Ministers
• The applicant’s application for designation was revoked on re-assessment of business
• Didn’t take route to appeal to committee of Ministers but went directly to court for JR
• Applicant applied for an order in certiorari to quash the rejection.
• Judge held that JR was only available to review statutory authority as per common law
tradition (entity must be rooted in statute)
• In any event this was a commercial matter affecting private market and that also indicated
that access to JR and writs wasn’t available
o Not statutory so we can’t deal with it.
o Adoption of the policy was not a statutory power of decision – but rather an
economic decision
ISSUE Whether the decision in issue was amenable to judicial review in public law
HELD Appeal allowed
16
REAS • Decisions of admin bodies are reviewable on certiorari if an analysis of their functions
discloses a duty to procedural fairness
• Business incentive policy monitoring office, its officers, committees created by policy are part
of machinery of gov decision-making
• While the source of the power of business incentive policy office & committees is not
statutory (policy), the policy is recognized in the gov contract regulations & must be
applied by all gov departments in assessing tenders submitted to the gov
• J agreed that purely commercial decisions relating to procurement by gov of goods & services
generally do not fall within the class of cases which will be subjected to judicial review, the
decisions here go beyond this category
• This is not a simple procurement decision which deals w/ acceptance or rejections of a specific
tender or bid
• Decision of Advisory Committee to reject an application or to revoke a designation affects, not
the individual contract, but the ability of the business to compete w/ others in contracting
w/ gov generally & w/ organizations funded by gov. Also affects availability of gov fin
assistance.
• Gov departments & organizations funded by gov must apply the policy in determining who the
successful bidder will be and this affects business’ ability to effectively carry on business in
Northwest Territories > it it this aspect that brings in public duty & fairness component

Class lecture:
• Moves from formal approach to functional – need to look not only at source but at the
nature
• Reference to Martineau case – that this approach was used in UK “the only constant
limits throughout were that it was performing a public duty”
• Court looks at Master case for factors to see if entity is public or not: to what extent is
entity part of machinery of gov. decision-making. The more integrated, the more likely it
can be said to be a public entity.
• Application to case: looked @ Committee > clear its part of machinery of gov decision-
making. Its recommendation determine who can enter into contractual relationships w/
gov and gov will implement this policy
• Second issue about engaging in commercial decision. Purely consumer/economic
decisions do not amount to machinery of government
RATIO • Powers of entity do not necessarily need to flow from statute - exercising the machinery of
government can suffice (Not necessary that decision maker be statutorily based)
• Purely consumer/economic decisions do not amount to machinery of government
• Admin decision should be performing a public duty
Notes p, 935:
• The threshold for the availability of remedy is determined on the basis of the need for procedural fairness
rather than procedural fairness entitlements being contingent on the technical rules governing remedy that
is sought (statute)
• Irving Shipbuilding Inc v Canada (AG) (2009) – availability of JR to challenge gov procurement will be
generally limited when it is subject to contract. Since it’s a contract > you can seek contract damages and
procurement of goods will not be delayed unlike in case of application for JR. This is good for public
interest. However, court acknowledged that in the most extraordinary situations, subcontractors should
be permitted to bring JR proceedings to challenge the fairness of process. Misconduct of gov must be so
egregious that the public interest in maintaining essential integrity of procurement process is
engaged.
• Rapiscan Systems Inc v Canada (AG) (2014) – more expansive scope for JR is called for when defeated
bidder rather than a subcontractor is the applicant.

AIR CANADA V TORONTO PORT AUTHORITY, 2011, P. 936
17
FACTS At issue was the reviewability of bulletins issued by the Toronto Port Authority respecting the
allocation of landing spots at Billy Bishop Airport in Toronto and its actions in grandparenting the
existing landing spots allocated to Porter Airlines.
ISSUE Whether the bulletins (w/ respect to allocation of spots at airport) and the actions (allocations) of
the Authority were sufficiently public to attract judicial review under s 18.1 of the Federal Courts Act
HELD No. Appeal dismissed. The matters set out in the bulletins—the matters subject to review in this
case—are private in nature. In dealing with these matters, the Toronto Port Authority was not
acting as a “federal board, commission or other tribunal.”
REAS Decision of Fed Court of Appeal
Was the Toronto Port Authority Acting as a “Federal Board, Commission or Other Tribunal”
when it Engaged in the Conduct Described in the Bulletins?
(1)This Is a Mandatory Requirement
• An application for JR under the Federal Courts Act can ONLY be brought against a “federal
board, commission or other tribunal”.
• Subsection 18(1) of the Federal Courts Act vests the Federal Court with exclusive original
jurisdiction over certain matters where relief is sought against any “federal board, commission
or other tribunal.”
• In exercising that jurisdiction, the Federal Court can grant relief in many ways, but only against
a “federal board, commission or other tribunal”: subsection 18.1(3) of the Federal Courts Act.
(2) What Is a “Federal Board, Commission or Other Tribunal”?
• defined in subsection 2(1) of the Federal Courts Act.
o 2.(1) In this Act, “federal board, commission or other tribunal” means any body, person
or persons having, exercising or purporting to exercise jurisdiction or powers
conferred by or under an Act of Parliament or by or under an order made pursuant
to a prerogative of the Crown …
• a)The majority of decided cases concerning whether a “federal board, commission or other
tribunal” is present turn on whether or not there is a particular federal Act or prerogative
underlying an administrative decision-maker’s power or jurisdiction
• In this case, both parties agree that actions disclosed in Toronto Port Authority’s bulletins find
their ultimate source in federal law
o Does the power exercised must be of public character to use JR?
• However, this alone is not sufficient to determine if entity is “fed board, commission or tribunal”
• b)Case law shows that conduct or power exercised must be of a public character (can’t be
exercising power of private nature)
o I.e. if fed tribunal hires a cleaning company and then breaches contract, this breach will
be of a private nature and will not be subject to JR despite the fact that entity is a fed
tribunal
• It’s a tricky question, to figure out if matter is public or private. “Its unwise to make
definitive definition of what is private vs public. One has to examine all of the
circumstances. One weighs all factors together.

Some of Factors used to make public-private determination:
• 1)The character of the matter for which review is sought.
o Is it a private, commercial matter, or is it of broader import to members of the public?
• 2)The nature of the decision-maker and its responsibilities.
o Is the decision-maker public in nature, such as a Crown agent or a statutorily-
recognized administrative body, and charged with public responsibilities?
o Is the matter under review closely related to those responsibilities?
• 3)The extent to which a decision is founded in and shaped by law as opposed to private
discretion.
o If the particular decision is authorized by or emanates directly from a public source of
law such as statute, regulation or order, a court will be more willing to find that the
matter is public.
18
o This is all the more the case if that public source of law supplies the criteria upon which
the decision is made.
o Matters based on a power to act that is founded upon something other than legislation,
such as general contract law or business considerations, are more likely to be viewed
as outside of the ambit of judicial review.
• 4)The body’s relationship to other statutory schemes or other parts of government.
o If the body is woven into the network of government and is exercising a power as part of
that network, its actions are more likely to be seen as a public matter (being part of
machinery of gov decision-making as mentioned in the previous case)
o Mere mention in a statute, without more, may not be enough
• 5)The extent to which a decision-maker is an agent of government or is directed,
controlled or significantly influenced by a public entity.
o Masters case example – a private law firm was retained by gov of ON to investigate
allegations of sexual harassment made against senior civil servant;; report back to gov.
This was aimed at preventing workplace discrimination & harassment
o HELD: private persons retained by government to conduct an investigation into whether
a public official misconducted himself may be regarded as exercising an authority that is
public in nature.
o A requirement that policies, by-laws or other matters be approved or reviewed by
government may be relevant.
• 6)The suitability of public law remedies.
o If the nature of the matter is such that public law remedies would be useful, courts are
more inclined to regard it as public in nature.
• 7)The existence of compulsory power.
o The existence of compulsory power over the public at large or over a defined group,
such as a profession, may be an indicator that the decision is public in nature.
o This is to be contrasted with situations where parties consensually submit to jurisdiction.
o *Refers to statutorily based self-governed professions (Law Society)
• 8)An “exceptional” category of cases where the conduct has attained a serious public
dimension.
o Where a matter has a very serious, exceptional effect on the rights or interests of a
broad segment of the public, it may be reviewable.
o This may include cases where the existence of fraud, bribery, corruption or a human
rights violation transforms the matter from one of private significance to one of great
public moment.
o *Matter becomes matter of public interest and is elevated to becoming a public matter

(3) Application of Principles to the Facts of the Case
• Factors to Support Conclusion
• Private and not public.
• 1. The private nature of the Toronto Port Authority is another factor leading me to conclude that
the Toronto Port Authority was not acting as a “federal board, commission or other tribunal” in
this case.
• 2.In engaging in the conduct described in the bulletins, the Toronto Port Authority was not
acting as a Crown agent.
• Have to look at statutory act in play. Here statute in play is Canada Marine Act. One of
elements of act is that incorporates by reference provisions of letters patent (similar to
incorporation – certain status and powers given)
• Provisions of statute s 28, 29 and provisions of letters patent which assist us to understand
why Toronto Port authority was acting in private sense
• S 28 – provides that court authority engages in court activities which are stipulated (shipping
and navigation) and when it’s doing so it’s acting as a crown agent. Subsection tells us it can
19
also engage into other activities necessary to support court operations and might not act as
crown agent
• How do we characterize granting of landing slots? As part of management and operation of
airport or as grant of license w/ respect to real property. Depending on characterization it’s
either acting as Crown agent or not.
• In my view issue of licensing is not applicable to the allotment of landing slots, I find it’s integral
part of operation of city airport which falls under provisions of letters patent
• Also looked at s29 of Statute – should operate at it’s own expense > another indication that the
activity is of private nature (no gov funding)

• 3. Private-public determination factors
a) Not part of gov machinery of decision making. In no way can the Toronto Port
Authority be said to be woven into the network of government or exercising a power as
part of that network. The Canada Marine Act and the letters patent do the opposite.
b) Not shaped by law. The discretions exercised by the Toronto Port Authority that are
evidenced in the bulletins are not founded upon or shaped by law, but rather are
shaped by the Toronto Port Authority’s private views about how it is best to proceed in
all the circumstances.
c) No evidence of control by gov. There is no evidence showing that on the matters
described in the bulletins, and indeed in its operation and maintenance of the City
Airport, the Toronto Port Authority is instructed, directed, controlled, or significantly
influenced by government or another public entity. As well, there are no legislative
provisions that would lead to any such finding of instruction, direction, control or
influence.
d) Is not exception. No evidence in this particular instance that would suggest that the
matters described in the bulletin fall with the exceptional category of cases where
conduct has attained a serious public dimension or that the matters described in the
bulletin have caused or will cause a very serious, exceptional effect on the rights or
interests of a broad segment of the public, such that a public law remedy is warranted.
RATIO Factors relevant to the determination whether a matter is coloured with a public element, flavour or
character sufficient to bring it within the purview of public law.
BODIES REGULATING ACCESS TO OCCUPATIONS AND PROFESSIONS

• Public law JR of organizations frequently incorporated (“sometimes called voluntary associations”) by law
or de facto control access to occupational and professional opportunities
• Is the association (sufficiently) public?
• Voluntarily associations are statutorily based
• Does the association control access to, or opportunities in a particular occupation?
• Look at the Origins, Purposes, Powers

R V HALIFAX-‐DARTMOUTH REAL ESTATE BOARD, EX PARTE SEASIDE REAL ESTATE LTD (1963), P. 942
FACTS • H-D expels Seaside from membership. Seaside seeks certiorari on the basis of failure to give
adequate notice of the charges against it
• H-D Real Estate Board argued that certiorari was not available – there was no duty imposed by
statute in the interests of the community and in the nature of public jurisdiction to act judicially.
• The Board: Raises the ethical standards – there is a community interest in standardizing real
estate procedures
ISSUE Whether the board was amenable to certiorari?
HELD Confirmed these are matters of interest to the community.
REAS • Court doesn’t know how to decide so they look at decisions of other provinces.
20
• Court looked at BC court decisions (McComb case). Any dispute as to disciplinary action can
be addressed in private sphere by some action of breach of contract.
• Halifax J reached a different conclusion (R v Halifax-Dartmouth Real Estate Board). There
was sufficient public interest in workings of real estate board to consider it as part of public
sphere b/c exercise of disciplinary power affects community.

• Procedure for fines and expulsions was set forth in the by-laws which were made pursuant
to the statute
• Court held that the aims, objects, and purposes of the board was set out in the enabling
legislation thus making it sufficiently public
• The decisions of the Real Estate Board’s are sufficiently affect the community just as do the
disciplinary regulations of other professional societies.
• The Board was established, among other things, to standardize the real estate business, to
foster and maintain the general development and economic growth of Halifax and maintain
ethical standards of the real estate profession.
• An organization does not have a judicial type process in order for a public remedy to be
available.
• THE BODY DERIVES ITS POWER FROM STATUTE AND THE BODY’S ACTIONS ARE
TIED TO THE COMMUNITY AS A WHOLE.
RATIO Public interest implications emanating from the decisions of the body can be enough to attract
judicial review even if association in the body is voluntary
NOTES:
• Case was Appealed. Judge allowed on the basis that the Board of Director, not the Board itself, should
have been sued. Also, held that the Board was statutory in origin, and was therefore amenable to certiorari.
• Prof: Now in ON there is a statute Real Estate and Business Brokers Act and under that statute Real
Estate Counsel of ON administers statute on behalf of government

****Consider whether the following case can still be sustained in the light of Volker Stevin?**

RIPLEY V INVESTMENT DEALERS ASSOCIATION OF CANADA (NO2), (1990), P. 945
FACTS • Ripley fined and membership suspended by Investment Dealers Association for professional
misconduct – after a disciplinary hearing by IDA. Ripley sought various reliefs: Certiorari and
that proceedings were invalid because of jurisdictional error. Court looked at the regulations
under the Securities Act
ISSUE Whether certiorari was available to challenge the jurisdiction and procedure of the IDA and its
discipline committee. No
HELD Applications dismissed
REAS • IDA is references in Securities Act but isn’t given any jurisdiction of registration of brokers
(reserved for Securities Commission)
• IDA is one of a number of self-regulatory organizations (SROs) which operate within securities
industry (i.e. Toronto Stock Exchange)
• SROs have protocol agreements w/ each other, providing for procedures & responsibilities for
conducting investigations into the activities of firms & employees of firms who are members of
more than one SRO, in order to avoid duplication and confusion

Certiorari Not Available
• IDA not acting as an agent of the government – not performing a public function. Mere
reference to the IDA in the Securities Act did not turn it into a statutory tribunal – simply
referring to it was not enough.
• The organization is recognized by Statute, but it does not derive any authority to
discipline its members from the Statute nor is it acting as an agent or delegate of the
Crown in the exercise of its functions. certiorari not available.
21
RATIO • Where authority of a body is derived solely from contract and not statute, and it is not acting as
an agent or delegate of the Crown, it is not subject to JR
• A Statute merely mentioning the body isn’t enough to be subject to JR
• Resolution of dispute falls under private and not public sector

NOTE:
• This can be used to argue counter to Volker and Halifax
• If this were decided now, based on Air Canada v Toronto Port Authority 2011 it may be
decided the other way
NOTES:
• Court of Appeal: Certiorari not available. Not specifically empowered by Statute.
• However, court accepted Ripley’s argument that IDA’s existence was recognized in Securities
legislation.
• Court also accepted that an application for declaratory relief could be sought (which it was), but it failed on
the merits.
• Court of Appeal provided more details of the nature of regulatory role played by the IDA:
“IDA serves as prof organization & regulates member brokerage houses & their employees. It is not
specifically empowered under any statute, although its existence is recognized in some securities
legislation. It has its own constitution, by-laws & regulations to which its members bind themselves by
contract to comply… .Sale of securities is regulated by statute in all Provinces. It is the persons and
firms who sell securities that are regulated by the IDA”.

KEY – what the court is looking at to come to their decision. Either an express statutory power or a
delegation thereof will be sufficient to render an administrative body sufficiently public.
Prerogative Writs
• Prerogative writs – what we see is an expansion of exercising JR – late 70’s
• Case of Electricity Commissions. Lord Atkin
• R. v Electricity Com’rs, ex parte London Electricity Joint Committee Co. [1924] 1 KB 171 (CA)
• Wherever any body of persons having legal authority to determine questions affecting the rights of subjects,
and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling
jurisdiction of the King’s Bench Division exercised in these writs. [per Atkin, LJ at p.205]

Comments
• Note the series of formal dichotomies in the early common law jurisprudence as determinative of one’s
access to the review jurisdiction of the Superior Courts:
o Legal authority vs administrative/ministerial authority
o Determine questions vs advising/recommending
o Rights vs interests
o Duty to act judicially vs acting administratively/ministerially
• In the modern era, each of these formal dichotomies has given way to a functional test for determining
whether access to the judicial review process is available to one seeking to challenge the decision of a
public body.

Some Themes
• From formalism to functionalism
• Judicial activism vs judicial restraint
• Indeterminacy of language (contested in jurisprudence):
o Jurisdiction (what does it mean)
o Fairness (Baker)
o Public vs private (Remedies)
o Reasonableness vs correctness (standard of review)
o Discretionary vs non-discretionary exercise of power by decision-maker
22
THE IMPACT OF STATUTORY REMEDIAL REGIME, P. 948
• The language of statutes such as Ontario’s Judicial Review Procedure Act, in which the remedies of public
law are not only replaced but consolidated and codified in a single application for judicial review, can have
an impact on the extent of relief.

THE FEDERAL COURTS ACT P. 948
• Federal court’s original judicial review jurisdiction is expressed in s 18
• Review of a “federal board, commission or other tribunal.” Section 2 of the Federal Courts Act defines that
term as follows:
• “[A]ny body, person or persons having, exercising or purporting to exercise jurisdiction or powers
conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of
the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or
established by or under a law of a province or any such person or persons appointed under or in
accordance with a law of a province or under section 96 of the Constitution Act”
• Problem: to what extent does the Act justify the review of decision-making bodies that do not have a clear
warrant in either an Act or a regulation?
o Can intervention be justified either on a theory of implied legislative mandate or, now, by reference
to the residual royal prerogative (privilege/right/entitlement)
(Crown prerogative – residue of discretionary decision-making by gov which is not controlled by a
legislative act)

THE JUDICIAL REVIEW PROCEDURES ACT OF BC AND ON, P. 949
• Prerogative writs – Certiorari, mandamus, prohibition, HC
• 2 Statutory regimes similar: ON and BC Judicial Review Procedures Act

2(1) An application for judicial review must be brought by way of a petition proceeding.
(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in
any one or more of the proceedings for
(a) relief in the nature of mandamus, prohibition or certiorari;; ( (1)”in the nature of” terminology is
discussed futher;; (2) also discussed further is the fact that there is no mention of “statutory power” as in
section b)
(b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or
purported exercise, of a statutory power.
• “Statutory power” defined in section 1:
o A power or right conferred by an enactment
§ (a) to make a regulation, rule, bylaw or order;;
§ (b) to exercise a statutory power of decision;;
§ (c) to require a person to do or to refrain from doing an act or thing that, but for that
requirement, the person would not be required by law to do or to refrain from doing
§ (d) to do an act or thing that would, but for that power or right, be a breach of a legal right of
any person, or
§ (e) to make an investigation or inquiry into a person’s legal right, power, privilege, immunity,
duty or liability ((e) omitted in Ontario)
• “statutory power of decision” is also defined as a power or right conferred by an enactment to make a
decision deciding or prescribing
o (a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or
o (b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not
the person is legally entitled to it, and includes the powers of the Provincial court.

The Scope of the “New” Remedy: Frozen and Evolutionary
• Question to be asked what is the impact of these statutory provisions for access to the JR process?
• Jurisprudence – do they freeze jurisprudence?
23
• Common law has taken position that access to JR is not limited to statutory exercise of power
• These statutory remedies are evolutionary

“In the Nature Of”
• S2(2) states: (a) relief in the nature of mandamus, prohibition or certiorari
• 2 conflicting decisions as to what this wording means. Does it extend reach of public law remedies? Do
other remedies exist besides mandamus, prohibition and certiorari?
• Conflicting case law
o 1)ON case – Re Rees and United Association of Journeymen & Apprentices of the Plumbing &
Pipefitting Industry of the United States and Canada (1983). Case about suspension from
membership and fining of the member of a trade union. Judge used language of “in the nature of” in
the sense that there was room for evolution in the remedies of public law;; plus the fact that the
relationship b/w trade unions and their members had come, as a result of public & legislative policy
to have a public rather than a purely private dimension.
o 2)BC and Alberta courts came to a different conclusion on the same context – court held that
remedy was unavailable.
• Is one right and one wrong? These cases revolve around process of characterization and courts may differ
as to characterization

The Relevance of Statutory Power
• Availability of declaratory and injunctive relief under JR depends on there being an exercise of statutory
power. This requirement may remove from the ambit of the Act some aspects of the modern uses of
declaratory and injunctive relief as public law remedies
• Also, if a body is created by statute, is this sufficient to bring the body within the ambit of the Act?

EXCLUDED PUBLIC BODIES
Superior Courts
• As per Dagenais case Supreme Court sustained availability of certiorari as a means to challenge such
order when made by a provincial court or non-s96 court judge (Superior, District, Country Court)
• However, when such a ban was issued by a superior court judge, the court reaffirmed the general
immunity of such judges from prerogative relief, even though this meant that the only way in which an
order could be challenged was by proceeding immediately to the SCC and seeking leave to appeal under
s40(1) of the Supreme Court Act
• Prof’s Side note: In ON there is a special division of superior court which deals with applications for JR –
sits in Toronto as 3 member tribunal. ON rules stipulate that one goes to divisional court although superior
court judges are able to grant relief by JR (will see in your civ pro class)

The Crown
• Traditionally, illogical for the Crown to be called to account in its own courts. TODAY, Crown immunity has
little practical significant in the domain of prerogative writs
o Restriction is avoided by naming the designated official as the respondent or defendant
• It’s immune but b/c of jurisprudence which holds Ministers of Crown are acting in a public sense
directly vis-à-vis citizen one sees issue of crown being immune
• Crown can make declaratory orders
• Old Crown immunity may have some bite when seeking injunction orders against the Crown
o Warrant for this is found in Crown proceedings and Crown liability legislation – can make an order
declaratory of the rights of the parties but not injunctive order
• There is an issue of granting injunctions – can not be sought directly against crown

Injunctive Relief Against the Crown
• Injunctive relief – tends to be sought where the aim is the halting of the exercise of a substantive statutory
power
24
• Seems that some judges have attributed a broader expanse to the domain in which ministers, Crown
agents, etc are amenable to injunctions
ALLOCATION OF REVIEW AUTHORITY: FED COURT & PROV SUPERIOR COURTS
• What entities are subject to JR by fed court as opposed to prov
• JR jurisdiction in Can is divided b/w superior courts of provinces & territories and the Federal
Court and Federal Court of Appeal
• Choice of whether to proceed under Fed Courts Act or in a s 96 superior court will depend on the source of
power or authority in question (is it fed or prov in nature?)
• However, it may be difficult b/c often there is concurrent jurisdiction
• Need to determine if the matter is one of concurrent or overlapping jurisdiction

RELEVANT PROVISIONS OF THE FEDERAL COURTS ACT
• Unlike the provincial superior courts, the Federal court and Federal court of Appeal are statutory courts in
that their judicial review jurisdiction derives from an Act of Parliament
• Sec 2(1) Act references ‘federal courts, commissions and other tribunals”
o Prov can’t be characterized as federal court, commission, other tribunal
• Sec 2(2) lists exceptions such as the Senate, House of Commons etc
• Section 16(1) – matter must be heard in front of min 3 judges
• Section 17(1)(2)(5) – except as otherwise provided in this Act or any other Act of Parliament, Federal Court
has concurrent original jurisdiction in all cases in which relief is claimed against the Crown
(6) – If an Act of Parliament confers jurisdiction in respect of a matter on a court constituted or
established by or under a law or a province, the Federal Court has no jurisdiction to entertain
any proceedings in respect of the same matter unless the Act expressly confer the jurisdiction
on that court
• Section 18, 18.1, 18.2, 18.3, 18.4, 18.5 – you have to act within 30 days of particular action but can be
extended by leave of judge;; indicates relief that one can get before fed court
• Section 28– exclusive jurisdiction of the Federal Court of Appeal. it lists those fed tribunals, boards,
commissions from which you seek JR directly to fed court of Appeal.

• P.962 – Pringle v Fraser – argument made was one couldn’t take away JR jurisdiction from prov court
invested in fed court – court held fed court as superior court, that it can be vested w/ JR jurisdiction and
therefore striping prov superior courts of that jurisdiction in those circumstances

HISTORY AND CONSTITUTIONAL CONSIDERATIONS, P. 962
• Federal Court – Trial Division is now called Federal Court and Federal Court – Appeal Division is now
called Federal Court of Appeal
• Federal court is assigned a virtually exclusive jurisdiction over JR over affairs of fed statutory
bodies
• Previously, general jurisdiction over JR of such authorities was exercised by prov superior courts
• However, those responsible for legislation felt that the quantity and nature of judicial review involving fed
statutory authorities called for a JR jurisdiction in the new court
• There was a sense that 10 superior courts across the country adjudicating in JR proceedings involving fed
authorities, conflicts would arise in jurisprudence on particular exercises of power
• Pringle v Fraser case – SCC determined that JR jurisdiction over fed statutory authorities could be
constitutionally taken from the prov superior courts and conferred on a fed court such as Fed Court of
Canada. The source of this authority was s 101 of the Constitution Act which entitled Parliament,
notwithstanding anything else in the Act, to create courts in addition to the SCC for the “better
administration of the laws of Canada”

25
• Section 96: triggers that the Federal Court of Appeal could not constitutionally remove the superior
courts’ jurisdiction over constitutional challenges to the jurisdiction of federal statutory regimes or to
action taken or proposed under a federal statute
o 96. This section bars Parliament and the provincial legislatures from altering the
constitutional scheme envisaged by the judicature sections of the Constitution Act, 1867 which
guarantee the independence of the superior courts from both levels of government.
• Constitutional issues: division of powers or Charter
• Both types of challenges by inaction of admin tribunal could be brought before prov superior court
• Fed court enjoys them – concurrent, not exclusive jurisdiction
• Question arises whether one could seek relief before both courts.
• In essence one has to follow election the other jurisdiction has made.
o I.e. Reza v Canada – Fed court had concurrent jurisdiction w/ province. Fed court denied granting
of leave. Applicant applied to Ontario Court. SCC later held that “court should interfere w/ other
court’s discretionary order ONLY IF that court failed to give ‘sufficient weight to all relevant
circumstances’”. No basis was found to interfere w/ other court’s decision.
• However, based on newer case, its unclear if Reza is still a precedent
• Case Mission Institution v Khela – SCC strongly endorsed litigation choice of forum as a critical matter in a
case of shared jurisdiction. Applicant was an inmate who was put into a maximum security penitentiary
from a medium. SCC stated that Applicant should go w/ provincial remedy (habeous corpus) versus to
federal (JR) as it was a faster process and at stake was his liberty

CH 19 – DISCRETION OF THE COURT
ALTERNATIVE REMEDIES
• Courts will sometimes regard existence of a specific remedy in the empowering statute as excluding
availability of common law JR as a matter of jurisdiction
• More frequently, question of alternative remedies is dealt w/ by reference to courts’ overriding discretion to
refuse relief even where substance of of applicant’s case may have been made out
• Questions asked tend to be about relative or comparative convenience of JR as opposed to
alternative forms of relief that are also available

Statutory Appeals
HARELKIN V UNIVERSITY OF REGINA, (1979), SCC -‐ 2SCR 561 (SASK), P. 1051
FACTS • Student was required to withdraw from the university’s faculty of social work – his appeal was
dismissed without being given a hearing as he could appeal to Senate committee
• Faculty committee > counsel committee > senate committee (2 levels of appeal)
• Denial to participate – was denied “the right to be heard”
• He sought to be heard but was refused
• Applied for certiorari (C) and mandamus (rather than pursing the available right of appeal to a
committee of the university senate)
• Saskatchewan QB allowed application – reversed by CA – went to SCC
ISSUE
HELD Appeal dismissed
REAS Beetz J (Majority)
• Student argued that Failure to be heard = jurisdictional error
• Annulity – there is nothing to appeal –> one can go directly to the court – this argument was
successful in an English case
• Award of writs usually lies within the discretion of the court
• Breach of rules of natural justice (not holding an actual hearing) did not nullify the
decision (expelling person from faculty)
26
• In order to evaluate if appellant’s right of appeal to the Senate committee constituted an
adequate alternative remedy and even a better remedy than a recourse via JR, several
factors should have been taken into consideration:
o 1)The procedure on appeal
o 2)The composition of the senate committee, its powers and the manner in which they
were probably to be exercised by a body which was not a professional Court of Appeal
and was not bound to act exactly as one nor likely to do so
o 3)Other relevant factors include the burden of previous finding, expeditiousness and
costs
• There was nothing in university’s statute or bylaws w/ respect to procedures to be followed by
Senate appeals committee:
• 1)Act does not spell out detailed powers of senate appeals committee BUT there is no
reason to doubt that such powers comprise ordinary powers of an appellate jurisdiction
including, set aside decision of counsel committee or send back for re-determination
• 2)On the other hand, appeal in this context is more likely to resemble a trial de novo rather
than a “pure” appeal. Court gave 3 reasons to support this statement. Moreover, it would be
more realist to expect that such body would take a more “flexible” approach rather than a
professional Court of Appeal
o (Note this definition is from Wikipedia - Trial de novo is trial/hearing that is ordered by
an appellate court that has reviewed the record of a hearing in a lower court and sent
the matter back to the original court for a new trial, as if it had not been previously
heard nor decided)
• Anyway, as per law the Senate committee should have set aside counsel committee’s decision
b/c person was not given a hearing
• PRESUMPTION Principle: it should not be presumed that the Senate committee would
have erred in law and decided that the appellant was not entitled to be heard by the
council committee. It should be presumed that it would reach correct decision and if not
Superior court could quash it
• Composition of Members. Moreover, Senate committee (which is comprised of laymen and
students) is given superior role versus the counsel committee (comprised of professors &
academics) as per Legislation
• Conclusion: appellant’s statutory right of appeal to senate committee provided him w/
an adequate alternative remedy & this remedy was more convenient for both university
and appellant in terms of cost & expeditiousness
o 3 years after the event, this case is heard by SCC
o It costs both appellant, university and public $
• Principle: courts should not use their decision to promote delay & expenditure unless
there is no other way to protect a right.
• The King, ex rel. Lee v. Workmen’s Compensation Board case “…If however, there is a
convenient alternative remedy, the granting of mandamus is discretionary, but to be
governed by considerations which tend to the speedy & inexpensive as well as
efficacious administration of justice”
• Legislature prefers such grievances (in universities) to be resolved internally > gives university
a chance to correct its errors
• This signals to courts that they should use restraint & be slow to intervene w/ university to
correct its errors
• Courts should exercise their discretion in such a way as to implement the general intent of the
Legislature

Strong Dissent: (Dickson J.)
• Quote: “the dynamic of ascending rigidity is readily apparent in structures such as university”
• Student should be heard, by not being heard error of natural justice
27
• Principle: Where there has been a denial of natural justice (and hence a lack of
jurisdiction) certoriari will issue, notwithstanding a right of appeal to an administrative
or domestic body, where that body exercises purely APPELLATE FUNCTIONS
• Where an alternative remedy exists, in the case of want of jurisdiction, certoriari remains
available but, in each case, the Court in exercising its discretion must consider
convenience and adequacy of the alternative remedy
Factors to consider:
• 1)Nature of error:
o If loss of jurisdiction (denial of natural justice) derives from a misinterpretation of a
statute, a statutory right of appeal may well be adequate.
o On the other hand, a breach of natural justice in all but rarest of cases will render
inadequate the remedy.
o A possible exception is the availability of de novo (J doesn’t believe that Senate
Committee can commence a hearing de novo)
• 2)Nature of appellate body.
o Where a statutory right of appeal is provided directly to the Courts (rather than a
committee), reviewing Court is more likely to refuse certiorari, especially on questions
of statutory interpretation
• 3)Capacity of remedial body.
o Where body which can use de novo option, remedy will be more often perceived as
adequate, even conceivably in cases of denial of natural justice
o On the other hand, normal sort of purely appellate function will rarely be seen as
capable of curing a breach of natural justice
• In this case, breach of natural justice can not be cured on appeal
• The ground for appeal would be that the council committee had erred in failing to afford
student an opportunity to be hear.
• J doesn’t believe that Senate Committee can commence a hearing de novo
• A person appealing decision made against him w/o a hearing is at a grave disadvantage
o Burden of persuasion lies w/ him at appeal level. He is expected to go to Senate not
knowing what has been placed against him at council
o There are no minutes of the committee of council available
o Appeal may conceivably be equally as effective as review
o The key decision is by academic committee (doesn’t sound right as per what Majority
said)
• Conclusion: student in this case has not waived his right to either hearing and it would be
wrong to deny him that which the statute expressly accord him (aka applying for JR)
RATIO • If appeal procedure as outlined in the enabling statute is not exhausted, an application for JR
may be denied even when the application has an otherwise valid procedural or substantive
claim – decision of body only void ab initio when made without jurisdiction
• relief may be refused on the ground that a litigant has not taken advantage of a right of appeal
to an administrative tribunal when this is an adequate alternative remedy to an application for
judicial review, even when the ground of review is the wrongful denial of a participatory right in
breach of the duty of fairness
Class Difference b/w Majority & Dissent:
notes: What was nature of Appellant jurisdiction of Senate?
Dickson – purely Appellant power and no power in the Senate to receive evidence and in fact
act as a review court and give a new hearing (de novo)
CANADIAN PACIFIC LTD V MASTSQUI INDIAN BAND (1995), 1 SCR 3, P. 1060
*This case reaffirmed Majority decision of the previous case

28
FACTS The respondents argue that their land is not “in the reserve” as required by s. 83(1)(a) of the
Indian Act, and therefore the land may not be taxed by the appellant bands under their new tax
assessment powers. CP was arguing that their lands were improperly classified as lands on
reserve subject to tax assessment and that issue should be determined by the court.
ISSUE Whether Joyal J properly exercised his discretion in refusing to entertain the respondents’
application for JR, thereby requiring the respondents to pursue their jurisdictional challenge
through the appeal procedures established by the appellant bands under s. 83(3) of the Indian
Act? Can one go directly to the Superior court if there has been some jurisdictional error?
HELD
REAS Lamer CJC
• On considering if Joyal J exercised his discretion reasonably, it is important that we not lose
sight of Parliament’s objective in creating the new Indian taxation powers
o Purpose was to facilitate development of Aboriginal self-government by allowing bands
to exercise inherently governmental power of taxation on their reserves
• Court decided to take purpose and functional approach of statutory interpretation
• A purposive analysis favours “process approach” (to include process of classification of
lands)
o Parliament intended bands to assume control over the assessment process –
therefore must be able to determine whether land, in the first instance, was taxable
(aka if it was part of the reserve)
o Administrative bodies must be able to make jurisdictional determination

• The issue is not which is the better forum at deciding on such issue.
• The question is: is the First Nations Tax Appeal Tribunal established under section 83(3) of the
Indian Act an adequate forum for resolving the jurisdictional challenge?
• Factors to consider when deciding b/w JR or sending case back to go through a statutory
appeal procedure (list is non-exclusive):
1. Convenience of alternative remedy
2. Nature of the error (jurisdictional / non-jurisdictional
3. Nature of the appellate body
4. Adequacy of appeal tribunal
• When applying the adequate alternative remedy principle, we must consider adequacy of
statutory appeal procedures created by the bands, and not simply adequacy of appeal
tribunals
• Creation in bylaws of a right of appeal from appeal tribunal to Fed Court Trial Division
• Parliament must have believed that appeal tribunals would be capable of resolving
issues on which they had authority to adjudicate (bands)
• Moreover, s 18.3(1) of the Federal Court Act allows an appeal tribunal to seek guidance of
the courts if it encounters legal, procedural, or other issues which it cannot resolve
• Summary of trial judge’s factors that this Judge believes are correct:
• 1)Appeal tribunals are an adequate forum for considering at first instance the issue raised by
respondents. I.e., parties can present evidence and arguments
• 2)Statutory appeal procedure provides respondents an appeal from the appeal tribunal to Fed
Court
• 3)Purpose of Parliament in enacting Indian tax assessment scheme was to promote
development of Aboriginal gov institutions

Lamer held that trial judge erred in failing to take into account the appeal tribunal’s lack of
independence
While only one other judge agreed w/ him on this point, combination of those 3 and 3 judges who
held that the applicants should have direct access to the Fed Court on their jurisdictional
challenge meant that the appeal was dismissed and application for JR allowed
RATIO *This case reaffirmed Majority decision of the previous case
29
Court will consider 4 factors when deciding appropriateness of judicial review (non-exclusive)
1. Convenience of the alternate remedy
2. The nature of the error
3. The nature of the appellate body
4. Adequacy of the appeal tribunal
Appeal tribunals should be given opportunity to deal w/ question in advance of courts
Important to look at intention of Legislators

NOTES:
• Mission Institution v Khela case – there was internal appeal process – by the time it would commence,
transfer would have taken place and the whole point was to challenge that transfer.
• Habeas Corpus – where liberty is at issue – direct access before both Fed and Prov Superior court is
available

PREMATURITY, P. 1066
• Prematurity, or an absence of “ripeness”, involves an assentation by court that, while applicant may
potentially have a good cause of action, the matter is inappropriate for judicial intervention at present
• Should the court wait to see if there really is an issue? Although the applicant may have a good case,
inappropriate to judicially review the issue at this point – because there is an alternative adequate remedy.
• Why?
• 1)Possible that matter may be resolved internally or w/o need of court intervention
• 2)Advantage of allowing tribunal to proceed to a conclusion on issue in question is that it will be building an
evidential record that will facilitate subsequent JR
• Five factors to determine if prematurity is at issue:
o (1) Is the tribunal likely to deal with the issue?
o (2) Is the tribunals conclusion on that issue highly predictable? That JR is inevitable?
o (3) Does the court have an advantage over the tribunal with respect to expertise over the matter?
o (4) Would a party (any party) be disadvantaged by the court taking jurisdiction?
o (5) Whether or not the hearing is a tax on judicial resources
• Considers that a complete evidentiary record is preferable:
o Prematurity considers that there may be an incomplete evidentiary record. Is there enough
evidentiary record to make an educated decision?

Very strong dissent in the next case:

HOWE V INSTITUTE OF CHARTERED ACCOUNTANTS OF ONTARIO (1994), CA, P. 1067
FACTS • There is investigative committee that reports to disciplinary committee before which there will
be a hearing and there is appeal from disciplinary committee to appellant committee
• Investigation took place. Issue was right of Howe to disclosure report of Investigative
committee.
• Accountant being disciplined – attempted to get the decision stayed because the discipline
committee would not release the report of its investigator (even though the decision from the
committee had not yet come down).
• Tactical move - trying to get JR before the decision is made.
• Howe’s argument: committee did not release the investigator’s report. He argued that he was
entitled to that material. At this point, the disciplinary committee had not made their decision
yet. But they would not disclose the report (claimed it was confidential and privileged
information)
ISSUE Is the application for Jr premature? Yes
HELD Divisional Court correct in exercising its discretion not to grant prerogative relief in this case.
Appeal dismissed
REAS Finlayson JA
30
• Howe wanted to have disclosure before hearing and not at the time of hearing. Court said he
could adjourn the hearing and commence it at a later date.
• Howe would have a right of appeal to the appeal committee from an unfavourable decision of
the discipline committee
o Allegations of a breach of the rules of natural justice could be raised in such an
appeal
• How can we determine if the lack of disclosure is significant if the panel has not yet
made the decision? (no evidence to make any judgment about this report, don’t even know
summary of report which was given to him)
o They do not yet know the effects of the disclosure. Too early!
• PRINCIPLE: it’s a set law that court will only interfere with a preliminary ruling made by
an administrative tribunal where the tribunal never had jurisdiction or has irretrievably
lost it (contrary to Harelkin case – lost jurisdiction > court allowed JR)
• Unclear that jurisdiction was lost. “It is not at all clear that a refusal to order production of
documents goes to jurisdiction, much less that it is a denial of natural justice or a fatal flaw to
the exercise by the tribunal of that jurisdiction”
• “I do not think we should encourage apps such as these which have the effect of fragmenting
and protracting the proceedings except in the clearest of cases”
• Court won’t interfere with a preliminary ruling where the tribunal has jurisdiction

Dissent: (Laskin) – strong
• PRINCIPLE: Where ruling amounts to a breach of tribunal’s duty of fairness, or a breach
of natural justice, then application for JR is not premature
• A breach of natural justice amounts to or is akin to jurisdictional error;; and in admin law
language, a tribunal which begins w/ jurisdiction to decide will lose jurisdiction or act in excess
of its jurisdiction if, in the course of deciding, it breaches natural justice
• Where there is a jurisdictional error arising from a breach of natural justice during
course of proceedings, a court is entitled to intervene to correct the error through the
party affected has a right of appeal
• This court granted JR in People First of Ontario v Porter, Regional Coroner Niagara (1991),
where tribunal refused disclosure b/c erroneous ruling was so fundamental to a fair hearing
that it amounted to a breach of natural justice & thus jurisdictional error.
• However, in this case there was no right of admin appeal.
• The existence of an adequate, alternative remedy by appeal was ground to refuse
certiorari in Harelkin case
• Laskin (J in this case) believes that Harelkin must be applied w/ caution b/c basis of judgment
was proposition that a denial of natural justice renders a decision voidable not void and thus
can be “cured” on appeal.
• This proposition was implicitly rejected, although w/o reference to Harelkin, in subsequent case
– Cardinal v Director of Kent Institution (1985): “a denial of a right of a fair hearing must always
render a decision invalid, whether or not it may appear to a reviewing court that the hearing
would likely have resulted in a different decision…It is not for a court to deny that right and
sense of justice on the basis of speculation as to what the result might have been had there
been a hearing”.
• Existence of an adequate alternative remedy by appeal DOES NOT afford a sound basis
to refuse JR
• In case at bar, it would be more efficient and less costly to determine the disclosure issue
now
• Refusing JR would have further effect of denying Appellant’s right to 2 procedurally fair
hearings, one at first instance (where prosecution bears the burden of proof) and one on
appeal
31
o 1)Prospect that panel will take a view different from the chair of the Discipline
Committee (who affirmed that accountant was not entitled to that part of disclosure that
is at issue) is slight
§ accountant attempted to get disclosure on multiple occasions and once was
denied by Appeal Committee
o 2)Disclosure issues should be determined sooner rather than later > goal of fairness,
efficiency
o 3)There is sufficient factual record to decide the issue
o 4)Since this court granted leave, we have to decide issue now
o The application for JR was not premature.
RATIO • Echoes Harlekin – where there is a statutory appeal route, court will be reluctant to allow JR –
this presumes appeal would not have resulted in a different outcome – won’t interfere prelim
ruling where a tribunal has jurisdiction

Court wont interfere with a preliminary ruling where the tribunal has jurisdiction, unless the tribunal
has irretrievably lost it
• Irreversible procedural error
CLASS • Issue: is refusal of disclosure a jurisdictional error?
NOTES: • Majority – it doesn’t
• Minority – it does
AIR CANADA V LORENZ (2000), 1FC 494 (TD), P. 1071
FACTS • There is no tribunal – heard by ad hoc appointed adjudicators
• Lorenz was alleging unjust dismissal by Air Canada – going before an arbitrator
• Air Canada argues that the arbitrator has a reasonable apprehension of bias – arbitrator
acting for a client in an unjust dismal complaint against an employer other than Air Canada –
but arbitrator refuses to recuse himself (basically arbitrator was working part-time at the tribunal
and worked as a lawyer as well). Adjudicator stated he had no bias.
• Air Canada applies for JR. Two years goes by before the JR is heard in Federal Court.
• Once it gets to JR – the argument is that the application was premature and should not
proceed until the adjudicator determined the complaint on its merits
ISSUE Whether the application for judicial review on the basis of a reasonable apprehension of bias was
premature? Yes
HELD Application for JR dismissed.
REAS Evans J
• Court had discretion in questions where bias is raised
• As a general rule it is much more difficult nowadays for a litigant to persuade a court to
intervene before the applicant has exhausted the available administrative remedies
• In this case there is no broad statutory right of appeal from adjudicator to another admin
tribunal or to this court (higher deference is given by Legislation to the tribunal)
• Would there be a better record with respect to bias if we let this hearing go forward? NO – not a
better record of bias
• Only in the most unusual and exceptional cases that the Court will intervene in
administrative proceedings before the final decision has been rendered – exceptional
remedy

• Factors to be considered:
(1) Possible hardships to Air Canada and the time/resources that would be wasted
• Hardships that applicant will suffer if relief is not granted
• If adjudicator is biased, the whole proceeding will be problematic
• Possible hardships cannot be determinative on their own. Otherwise a reviewing court
would always have to decide allegations of bias and to award relief when they are upheld.
This would mean that the court would have no discretion to dismiss an application for
32
judicial review for prematurity when bias is alleged – bias would always = “exceptional
circumstances”
(2) Court looks at waste
• We don’t know the outcome of tribunal > it will only be waste if Lorenz is successful
• if Air Canada has to wait until the end of the proceedings to make the bias challenge, and
is successful, then the resources they devoted to the initial hearing is a waste.
• But this assumes AC will be found to have dismissed Lorenz unjustly (which is the only
reason why they would even bring the bias claim after the hearing)
(3) Consequences of delaying the admin process and the multiplicity of litigation
• If we rule on bias issue now (preliminary allegation – no substance other than the fact
that he also did defence court) then other parties on the market could attempt to delay in
a similar way à Litigation fatigue/flooding
• Due to delay in proceedings weaker party might have to settle
(4) Looked at fragmentation
• Courts are against fragmentation of issues – if every time decision-maker makes ruling and
one rushes to court then decision is made, and one goes back to continue on (back and
forth b/w tribunal and courts – one should wait until tribunal makes decision and then raise
all challenges
(5) Looked at the strength of the case
• Potential harmful consequences of deciding or not deciding merits of this application for JR
prior to the determination of the admin process are largely premised on the eventual
success or failure of the allegation of bias. It is thus appropriate to consider the strength of
the case made by applicant
• Counsel for Air Canada argued that in R v Lippe (1991), SCC expressed the view that in
the absence of adequate safeguards, the appointment of part-time judges who continued
their legal practice breached the constitutional requirement of institutional impartiality &
independence
• However, it is an open question if similar concerns are applicable to specialized
admin tribunals
• IMPLICATIONS OF OPERATION OF ADMNI STATE. Consequence would be
determination that lawyers practicing labour & employment would be ineligible for an
appointment under s240 of the Canada Labour Code
• Since no court has been called to resolve such issue > appears that others don’t think
there is a bias
• Moreover, adjudicator in this case represents BOTH management and employees
• Here, no evidence of a clear and obvious case of bias

(6) Also took into consideration of the statutory context – conferred jurisdiction of dismissal
proceedings on arbitrators;;
• No right of appeal -> higher deference to adjudicators
• Legislative attempt to keep the courts intrusion in regards to such matters at a minimum
• Thus, even when adjudicator is impugned for bias, it will be the rare case when the
Court should determine the merits of the claim prior to release of adjudicator’s
ultimate decision, such as when allegation reveals a very clear case of bias and the
issue arises at the outset of a hearing that it scheduled to last for a significant
length of time
(7) Court also looked at jurisprudence
• Generally, jurisprudence seeks to avoid delay and fragmentation
• Court should only intervene before tribunal has rendered its final decision in
“exceptional circumstances” or “where attack is on the “very existence of the
tribunal”
• A reviewing court may be more willing to intervene when the applicant alleges that the
tribunal’s enabling statute is constitutionally flawed (Pfeiffer v Canada)
33
• Burden of demonstrating the existence of “exceptional circumstances” may be somewhat
easier to discharge when the impartiality of the tribunal is impeached in JR proceedings
before the admin process has run its course than it is when applicant alleges other
reviewable errors
• Nonetheless, there is no authority to support that bias and absence of any right of appeal
from tribunal = exceptional circumstances
CONCLUSION:
• “A non-frivolous allegation of bias that falls short of a cast-iron case does not per se constitute
“exceptional circumstances”, even when the hearing before the tribunal is still some way from
completion, and there is no broad right of appeal from the tribunal” à JR is for exceptional
circumstances
• Substantial delay (2 years) that has arisen from this application for JR is a vivid illustration of
the dangers of such practice + fragmentation of the process

• PROF’s NOTE: Mere application for JR doesn’t itself halt proceedings – it’s a matter of
discretion of tribunal decision-maker (usually they are made aware of JR application) whether
or not to halt or end process - Cedervelle Trees case
• If someone leaves process to seek JR – they do so at their own risk that tribunal will
continue and make findings against them (there is no grounds to appeal that decision on
fairness grounds b/c one chose to leave the process).
• If you want process to be put on hold – you have to ask to stay in the proceedings while case is
pending. Once stay is issued, tribunal can’t further proceed
RATIO • A court should only intervene before the tribunal has rendered its final decision in “exceptional
circumstances.”
• A non-frivolous allegation of bias that falls short of a cast-iron case does not per se constitute
“exceptional circumstances” even when the hearing before the tribunal is still some way from
completion, and there is no broad right of appeal. The court should consider the following
factors:
1. Hardship to the applicant
2. Waste
3. Delay
4. Fragmentation
5. Strength of the Case
6. Statutory Context
7. Jurisprudence
MOOTNESS
• By the time the issue actually reaches the court, the dispute is resolved or has no more practical
significance;; the essential ingredient must be present not only when the action or proceeding is
commenced but at the time when the court is called upon to reach a decision
• Principles governing mootness have been laid down by the SCC in Borowski v AG (1989) (SCC):
• The court may decline to decide a case which raises merely a hypothetical or an abstract
question. When the decision of the court will not have the effect of resolving some controversy
which affects or may affect the rights of the parties.
• Exceptions:
• 1)when there are collateral consequences to the proceedings (Vic Restaurant Inc v City of Montreal,
[1959] ScR)
• 2)where the issue at stake was one of a recurring nature, and
• 3)PUBLIC POLICY: where, in a case of public importance, there remained a public interest in the
resolution of the issue raised by the litigation (Carter case – assisted suicide doing – whether
prohibition under CC violated Charter – applicant Carter died before decision was issued)
34
DELAY
• Delay in commencing proceedings may go either to the jurisdiction OR to the discretion of the
reviewing court
• Failure to adhere to mandatory limitation statues will prevent the court from hearing the case
• Federal Courts Act – section 18.1(2): very short limitation period – 30 days from the communication of
the order, though a judge may extend that period
• What if there is no limitation period or even sometimes within the limitation period? Then à Doctrine of
Laches – equitable remedy where the courts deny relief to the applicant on the ground of undue delay
(results in prejudice to the party)
• Ontario – no limitation period under the JRPA (Judicial Review Procedure Act), SPPA (Statutory
Powers Procedure Act) or Rules of Civil Procedure
• Delay is left to the discretion of the court

FRIENDS OF THE OLDMAN RIVER SOCIETY V CANADA (MINISTER OF TRANSPORT) (1992), P. 1081
FACTS • Involved fed & prov jurisdictions
• Dam was being constructed in Alberta – Society were objecting to the dam being built
• Minister of Transport approved the dam. Society seeking to compel Minister of Transport to
conduct the proper environmental assessment (which had not been done) – pursuant to
federal guidelines
• JR application brought 14 months after the issue arose and after the dam was 40%
complete
• When reached SCC – construction was almost completed
• Did Minister of Transport had to carry out environmental review?
ISSUE Whether the Federal Court of Appeal erred in interfering with the motions judge’s discretion not to
grant the remedies sought, namely orders in the nature of certiorari and mandamus, on the
grounds of unreasonable delay and futility.
HELD • Appeal allowed. FCA ruling upheld
REAS La Forest J
• Protection of environment is very important. Both fed & prov governments established
Departments of the Environment which play central role
• As per Charles Osenton Co v Johnston (1942) – “The appellate tribunal is not at liberty merely
to substitute its own exercise of discretion for discretion already exercised by the judge…But if
the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of
discretion in that no weight, or no sufficient weight, has been given to relevant considerations
such as those urged before us by the appellant, then the reversal of the order on appeal may be
justified”
DELAY
• Unreasonable delay may bar an application from obtaining a discretionary remedy, particularly
where the delay would result in prejudice to other parties who have relied on the challenged
decision to their detriment
• Previous J found that there was delay in taking action by Society. However, he ignored
considerable amount of activity undertaken by the respondent Society before taking this
action
• Society took many steps to protest construction of the dam (court looked at lengthy list of
actions taken under other Legislation)
• Chronology of events represents a concerted & sustained effort on the part of the Society to
challenge the legality of the process followed by Alberta
• No evidence that Alberta has suffered any prejudice from any delay in taking this action
> no evidence that province was prepared to accept an environmental impact assessment until
it had exhausted all legal avenues, including an appeal to this Court
FUTILITY
35
• Prerogative relief should only be refused on the ground of futility in those few instances where
the issuance of a prerogative writ would be effectively worthless > here there still may be
benefit to make environmental assessment
• It is different matter where it cannot be determined a priori that an order in the nature of
prerogative relief will have no practical effect
• In the present case, it is not at all obvious that the implementation of the Guidelines Order even
at this late stage will not have some influence over the mitigative measures that may be taken
to ameliorate any deleterious environmental impact from the dam
• FCA J did not err

Dissent – Stevenson J
• There was delay, Society knew of the approval some 14 months beforehand and principal
promoters of the Society knew even before then
• Common law imposed a duty on an applicant to act promptly in seeking extraordinary
remedies
• Importance of acting promptly when seeking prerogative relief has also been recognized in
much of the legislation governing JR
• By the time application was brought, dam was 40% complete
• A significant amount of public $ had already been spent
• Society could have launched its action in early 1988 – at that time major construction had not
yet taken place
• Had Society done so, Alberta would have been in a much better position objectively to
assess any potential legal risk associated w/ continuing – faced w/ possibility of invalid fed
approval, it may well have chosen at that point not to put out the public $ that it did
• A significant # of contracts w/ 3rd parties was undertaken
• Given enormity of the project & interests at stake, it was unreasonable for Society to wait 14
months before challenging decision of the Minister of Transport
• The fact that Society took other actions, is irrelevant – as they didn’t preclude Society from
undertaking this action in a timely fashion
RATIO Delay is considered in light of the relevant circumstances to determine prejudice – delay without
prejudice does not necessarily bar remedy
For a court to exercise discretion, it has to consider all the relevant facts

SUBSTANTIVE REVIEW, P. 629

• Reviewing courts were instructed by SCC to assess their engagement w/ admin process from a
“pragmatic & functional” perspective
o This required respect for legislature’s choice as to which decision-maker should be the primary
vehicle for carrying out a statutory mandate. It also called for greater attention to legislative
signposts marking a need for judicial restraint, a far more purposive or contextual approach to
statutory interpretation
• The outcome of this pragmatic & functional approach is that courts arrive at a “standard of review” to
determine the intensity w/ which they review an admin decision

THE STANDARD OF REVIEW
• Standard of review will determine the intensity with which courts will review decisions of
tribunals/commissions
• This approach to substantive review was reaffirmed & renovated in Dunsmuir v New Brunswick (2008).
• The pragmatic & functional approach applied in the past by courts to determine appropriate level of
deference to an admin actor was renamed “standard of review analysis”
• All of the factors in the analysis remained (as under the pragmatic & functional approach), although the role
of each factor was clarified & recalibrated
36
• The possible standards of review have been narrowed to 2:
o An intrusive correctness standard
o Deferential reasonableness standard
• Highly deferential “patent unreasonableness” standard did not disappear entirely, but it survived only
rarely where its usage is dictated by a past decision or by an express statutory provision
• Where existing jurisprudence determines “in a satisfactory manner” the applicable standard of
review, it should be applied w/o further consideration
• New standard of reasonableness is not necessarily the same as the old standard of reasonableness
simpliciter
• The standard of correctness more or less retained the same meaning
• Sometimes it is unnecessary for the court to review all of the factors & standard of review may be
determined based i.e. on the nature of the question at stake

DUNSMUIR V NEW BRUNSWICK, 2008, SCC, P. 634
FACTS • Dunsmuir was a court official w/ the New Brunswick Department of Justice. He was dismissed,
after having been reprimanded on 3 occasions through written warnings, & given 4 and a half
month’s salary in lieu of notice. In dismissing him, gov relied on “ordinary rules of contract” as
per s 20 of the Civil Service Act (aka notice or pay in lieu of it). However, s 100.1. of the
Public Service Labour Relations Act (PSLRA) extended grievance rights to non-
unionized employees > adjudicator may substitute such other penalty for the discharge or the
discipline as to the adjudicator seems just and reasonable in all the circumstances. To avoid
effect of this provision, official reason provided by gov for dismissal was that he was not
suitable for position, not that there was cause for dismissal.
• Dunsmuir argued that gov had in reality dismissed him for cause and that, if he
established that this was the case & also that the gov did not have cause, he was
entitled to seek reinstatement.
• A mutually agreed PSLRA adjudicator heard the case & held that termination was not
disciplinary but rather based on employer’s concerns about the appellant’s performance &
suitability for position.
• Based on case Knight v Indian Head School Division No 19 (1990), adjudicator held that
Dunsmuir should have been informed of reasons for this dissatisfaction & given
opportunity to respond. Termination was void & appellant was reinstated. In the event that
reinstatement was quashed on JR, adjudicator requested notice to be 8 months.
• JR. Standard of review is correctness. Adjudicator wrongly interpreted relevant statutes
& lacked jurisdiction to review circumstances of Dunsmuir’s dismissal under PSLRA.
• Court of appeal for New Brunswick. Standard of review is reasonableness simpliciter. It
was unreasonable based on relevant statutes for adjudicator not to accept employer’s portrayal
of dismissal as not for cause.
ISSUE What approach should be taken in JR of a decision of a particular adjudicative tribunal? What is
standard of review?
HELD
REAS Bastarache J
JUDICIAL REVIEW
• JR seeks to address an underlying tension b/w rules of law and foundational democratic
principle, which find an expression in the initiatives of Parliament and legislatures to create
various admin bodies and endow them w/ broad powers.
• The function of JR is to ensure legality, reasonableness & fairness of the administrative
process and its outcomes
• In addition to the role JR plays in upholding the rule of law, it also performs an important
constitutional function in maintaining legislative supremacy > jurisdiction should be defined
in accordance w/ Legislative intent. Courts are not the sole entity in rule-making
37
• However, legislative branch of gov cannot remove judiciary’s power to review actions &
decisions of admin bodies
• Even A PRIVATIVE CLAUSE, which provides a strong indication of legislative intent,
cannot be determinative in this respect.
• The inherent power of superior courts to review admin action and ensure that it doesn’t exceed
its jurisdiction stems from the judicature provisions in ss96 (independence of superior courts
from both levels of government) to 101 of the Constitution Act (acting within granted
authority – jurisdiction is area where tribunal has conclusive decision-maker power)

RECONSIDERING THE STANDARDS OF JR
• There should be only 2 standards of review:
• A) Correctness (no deference – indicative that there is a single right answer to issue – tribunal
must get it right or JR relief will be given) and
• B) Reasonableness (deference to decision-maker;; to establish reasonableness one should
establish justification, transparency and intelligence in decision-making process). Decision
falls within a range of possible outcomes that are based on facts and law. The fact that court
might disagree w/ outcome is not determinative so long as decision is reasonable and falls in
range of reasonable outcomes.

DETERMINING THE APPROPRIATE STANDARD OF REVIEW
• Process of JR involves 2 steps
• 1)Courts ascertain whether the jurisprudence has already determined in a satisfactory manner
the degree of deference to be accorded w/ regard to a particular category of questions > if yes
follow it > if no, do step 2
• 2)Courts must proceed to an analysis of the factors making it possible to identify the proper
standard of review
• Better to name the “pragmatic and functional approach” as the “standard of review analysis”
• Analysis must be contextual & it may not be necessary to consider all of the factors as some of
them may be determinative
• Factors:
o 1)Presence or absence of privative clause (indication of deference) (or alternatively
right to appeal)
o 2)Purpose of tribunal as determined by interpretation of enabling legislation
o 3)Nature of the question at issue
o 4)Expertise of the tribunal

REASONABLNESS
• A privative clause: this is a statutory direction from Parliament or a legislature indicating the
need for deference. Strong indication of review pursuant to the reasonableness standard.
However, this factor alone is not determinative
• Where question is one of FACT, DISCRETION or POLICY, or where LEGAL AND FACTUAL
ISSUES ARE INTERWINED deference will usually automatically apply and standard of
reasonableness will be favoured
• Jurisprudence showed:
o Deference will usually result where a tribunal is interpreting its own statute closely
connected to its function
o Deference may be warranted where an admin tribunal has developed particular
expertise in application of a general common law or civil law rule in relation to a specific
statutory context (i.e. adjudication in labour law)
• Questions of law where the nature of legal question at issue is not one that is of central
importance to the legal system and outside the specialized expertise of adjudicator

CORRECTNESS
38
• A question of LAW that is of “central importance to the legal system and outside the specialized
area of expertise of the admin decision maker will always attract a correctness standard
Cupe case – person was charged and convicted of sexual assault of minor & was dismissed.
Victim challenged his dismissal and adjudicator took position he could re-evaluate evidence of
the activity to reach conclusion as to whether dismissal was justified. Decision was quashed –
issue of central importance & outside of expertise. Judges are more experts.
• Jurisprudence showed:
o Correctness review has been found to apply to constitutional questions regarding
division of powers b/w Parliament and provinces
o Other constitutional issues are necessarily subject to correctness review b/c of the
unique roles of s 96 courts
o Admin bodies must be correct in their determination of true questions of jurisdiction or
vires. Jurisdiction – whether or not tribunal had authority to make the inquiry.
True jurisdiction questions arise where tribunal must explicitly determine if its statutory
grant of power gives it authority to decide a particular matter. I.e. in United Taxi Driver’s
Fellowship of Southern Alberta v Calgary (City) (2004) case, issue was whether the City
of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the
# of taxi plate licenses. Involved decision-making power of municipality.
o Questions regarding jurisdictional lines b/w 2 or more competing specialized tribunals
have been subject to review on a correctness basis
APPLICATION TO THIS CASE
• The specific question in this case is whether the combined effect of s 97(2.1) and s 100.1 of the
PSLRA permits adjudicator to inquire into employer’s reason for dismissing an employee w/
notice or pay in lieu of notice
o This is a question of law
• The question to be answered is thus if in light of the privative clause, the regime under which
the adjudicator acted & the nature of the question of law involved, a standard of correctness
should apply
• 1)The adjudicator was appointed & empowered under PSLRA – that statute includes a
privative clause > strong indication of reasonableness standard
• 4)The nature of regime – adjudicator has relative expertise of labour arbitrations & relative
expertise in the interpretation of the legislation that gives them mandate> deference &
reasonableness standard
• Adjudicator was selected by both parties
• 2)Legislative purpose > as per PSLARA > establishing time & cost-effective method of
resolving employment disputes. Alternative to judicial determination.
• Remedial nature of s 1001. And its provision for timely & binding settlements of disputes
imply that a reasonableness standard is appropriate
• 3)Nature of legal question at issue is NOT one that is of central importance to the legal system
and outside the specialized expertise of adjudicator > reasonableness
• REASONABLNESS is appropriate standard of review
39
RATIO Intention of Legislators is important
2 standards: reasonableness and correctness
Steps:
• 1)Courts ascertain whether the jurisprudence has already determined in a satisfactory manner
the degree of deference to be accorded w/ regard to a particular category of questions > if yes
follow it > if no, do step 2
• 2)Courts must proceed to an analysis if the factors making it possible to identify the proper
standard of review
Factors to consider to determine standard of review:
• 1)Presence or absence of privative clause (indication of deference) (or alternatively right to
appeal)
• 2)Purpose of tribunal as determined by interpretation of enabling legislation
• 3)Nature of the question at issue (fact, law or mixed fact & law)
• 4)Expertise of the tribunal (as compared to that of superior court which has a general as
supposed to focused expertise)

NOTES p. 642:
• Dissent in Dunsmuir (Deschamps and Rothstein) believed in an alternative approach which posits that
courts – absent a statutory direction to the contrary – should defer to admin tribunals on questions of fact &
usually on questions of mixed fact & law or discretion but presumptively not on questions of law.
o On questions of law, deference is warranted only where there is a privative clause &
specifically not where there is a statutory right of appeal on such questions.
• Deference is also precluded where issue falls outside the regular activities of the decision-maker and its
expertise
• Deschamps thought that correctness was the appropriate standard. “In the case at bar, adjudicator was
asked to adjudicate the grievance of a non-unionized employee. This meant that he had to identify the
rules governing the contract. Identifying those rules is a question of law…The common law rules relating to
the dismissal of an employee differ significantly from the ones provided for in the PSLRA that the
adjudicator is regularly required to interpret. Since the common law, not the adjudicator’s enabling statute,
is the starting point of analysis, and since the adjudicator doesn’t have specific expertise in interpreting
common law, the reviewing court doesn’t have to defer to his decision on the basis of expertise”.
• For Rothstein (Dissent), process of review analysis must be simplified by focusing on intention of
Legislature. The presence of a privative clause was determinative of whether the legislature believed that a
statutory decision-maker had greater expertise than the courts – standard is reasonableness. Absence of
privative clause – correctness is standard.

LINGERING QUESTIONS AFTER DUNSMUIR, P. 645
• Unresolved questions remain:
• 1)Role of precedent. From Dunsmuir one may deduce that a past decision should govern where it
involves the same decision-maker, the same “category” of question and sufficiently comparable statutory
terms including any privative clause or right of appeal.
o But what if some but not all of these conditions apply?
• Further, precedents on the standard of review can themselves change.
• 2)What to do about cases where a statute or the existing jurisprudence dictated a standard of
review that was no longer available in common law after Dunsmuir.
o A pre-Dunsmuir standard of review may live on where it is preserved by express statutory
language. However, it’s meaning originates in and will continue to evolve w/ common law
o What if existing jurisprudence rather than statute calls for a pre-Dunsmuir standard?
o In such situations, Dunsmuir leaves it open for a court to adopt reasonableness as standard but to
apply that standard in a manner that is like “the old” patent unreasonableness
• 3)Role of 4 factors in the standard of review
40
o One should appreciate that factors should always play some role in a court’s decision on whether to
defer
• 4)Fourth tension follows from Binnie J’s query in Dunsmuir whether the majority’s approach will
provide, as it aspires to do, a coherent & workable framework for the system of JR as a whole
• 5)Interaction b/w factors in the standard of review analysis, especially role of privative clauses.
Decision of adjudicator in Dunsmuir was unreasonable as per reasonableness standard.

CH 10 -‐ PRIVATIVE CLAUSES & STATUTORY RIGHTS OF APPEAL, P. 651
PRIVATIVE CLAUSES IN THE STANDARD OF REVIEW ANALYSIS
• Examination of privative clauses & rights of appeal involves statutory interpretation in that the court must
formulate an understanding of legislative intent on the issue of judicial deference
• Courts distinguish b/w “full”, “strong” (look @ effect;; broad – precludes any form of review & says
decision is final & conclusive) and “weak” privative clauses (final & conclusive or that decision-maker has
the sole or exclusive jurisdiction;; w/o expressly precluding role of courts from review)
• Need to look at other provisions of statute to check if Right of Appeal is granted
• Cupe vs NB Liquor Corporation case – courts should not be alert to brand as jurisdictional, and therefore
subject to broader curial review, that which may be doubtfully so.
• Why Legislatures inserter privative clause in regulation of labour relations?
• 1)Prevent delay & it’s effect. Time is of essence, and delay might favour employer > more employees
might be dissuaded from unionization.
• 2)Cost. Resources are not equally balanced. Employers have more $ and if they are allowed to dispute
any favourable to employee tribunal decision, employees will be discouraged from using tribunals.
• 3)Expertise. Tribunals are created for the very purpose of keeping dispute out of courts. Members have
understanding of subject matter.
• 4)In the past judges would favour employers

HIBERNIA MANAGEMENT AND DEVELOPMENT COMPANY LTD V CANADA-‐NEWFOUNDLAND AND
LABRADOR OFFSHORE PETROLEUM BOARD (2008), P. 656
FACTS Court issues guidelines on level of research & development expenditures that companies who
were granted license to provide oil.
ISSUE Did they apply to companies who were already in process of oil production or to new
companies who are applying to engage in oil production?
HELD
REAS • Example of intro-delegation – one level of gov can’t delegate to the other the authority to
make legislation within its jurisdiction but to get around that one can delegate the
enforcement powers and grant them to admin bodies in other levels of gov.
• This case was heard in appeal – ocean falls within s 91 and yet agreement was made that
province would establish body which would deal w/ exploitation of resources.
• Privative clause in the agreement – “final and not subject to the review of either
government or Minister”. No mention about court.
• Applicant stated that court could thus step in and apply standard of correctness.
• Court looked at other clauses. Court held that since they referenced courts in one
section but didn’t’ mention in the privative clause, court is entitled to intervene in
provision that didn’t mention court.
• Court continued w/ Dunsmuir analysis and looked at other factors. There is a discrete &
special admin regime w/ mandate to oversee legislation, that decision-makers have special
expertise (indicates deference). Type of decision made here whether to apply these
guidelines, don’t fall in class of decisions requiring correctness (not true question of
jurisdiction), not question of law of central importance to legal system.
• On balance of factors, concluded that reasonableness was appropriate standard.
RATIO
41
RIGHTS OF APPEAL IN THE STANDARD OF REVIEW ANALYSIS
• When there is no right of appeal, your remedy is JR
• Presence of right of appeal – against deference
• Many statutes provide a right of appeal to a specific court on questions of law or fact (or combo of both). In
ON, this is typically Divisional Court;; at the fed level it is the Fed Court or the Fed Court of Appeal.
• Inclusion of such clause weighs against deference.
• No right of Appeal included > common law reserves JR for superior courts of the respective province.
• Before Dunsmuir, general position was that, where questions of fact fell within the scope of the right of
appeal, there was a tendency to defer to the findings of the trier of fact.
• Where issue was one of law, the assumption was that the right of appeal indicated a legislative intent for
the court to fell free to intervene on the basis of its own conclusions on the relevant legal issues. It was
taken as a green light for judicial intervention>>>>However, this was not a safe assumption
• Bell Canada v Canada (1989) – nature of the question and degree of tribunal’s expected expertise are
relevant concerns. This was confirmed by other cases.
• In terms of a right of appeal that encompasses questions of law, Dunsmuir suggests implicitly that
conventional position may be altered.
• Decisions of a tribunal on interpretation of its own statute, or closely related statutes, are usually entitled to
deference and questions of law – where not of central importance to the legal system & outside decision-
maker’s expertise – may be compatible w/ standard of reasonableness.

THE CONSTITUTIONAL LIMITS OF PRIVATIVE CLAUSES, P. 660
• Judiciary has a role of determining limits of particular decision-maker
• Privative clause cannot be determinative
• Doctrine, led by decision in Crevier v AG (Quebec) – that Constitution implicitly guarantees the authority of
the courts to review decisions of admin agencies for:
o errors of law (constitutional interpretation),
o jurisdiction, and procedural unfairness
§ >>>Constitutional
o test is correctness
• But outside of JR in constitutional law, it’s unclear if courts can ignore privative clause. The
Constitution Acts, 1867-1982 do not have explicit provisions dealing w/ the courts’ power to review
decisions of admin agencies.

COURTS AND TRIBUNALS: CONSTITUTIONAL BACKGROUND
• Province can’t create tribunal that is vested w/ power of a superior court (s 96 – fed gov makes
appointment)
• There is a core of jurisdiction which can’t be taken away from superior judges
• Question is what is that core?
• Re Residential Tenancies Act (1981), SCC. Court came up w/ 3-part test to determine if tribunal was
engaging in s 96 action:
• 1)Looks at historical power – does impugned power tribunal exercises conform to power that was
exercised exclusively by superior courts at the time of Confederation. If yes – next step.
• 2)Is it judicial-like power? Characterized by a dispute b/w parties, adjudicated by application of
recognized body of rules, adjudication is consistent w/ fairness & impartiality. If yes – next step.
• 3)In it’s institutional setting, does it look like superior court? Need to look if its ancillary to the broader
admin making of the board or is it a central function of the board/tribunal? If central function > more like
superior court.
• Court struck down the act – act created tribunal which dealt w/ L&T disputes and that was sole and central
function of the tribunal to adjudicate these disputes. Court held it wasn’t entrenched in a broader statutory
framework.
42
• Hogg is critical of these cases b/c each one of these steps is difficult to actually understand in a clear way;;
they are too broad and indefinite to give much direction. Many tribunals would appear to be threatened by
this jurisprudence but nevertheless this is the jurisprudence.

STATUTORY REMOVAL OF JR
• Decision in Crevier identified limits of a prov legislature’s power to create an admin tribunal & give
it authority over matters conventionally dealt w/ by ss 96-101 courts.
• Hogg criticized Crevier, on the grounds that the definition of jurisdictional error is prone to judicial
manipulation.

CREVIER V AG (QUEBEC) ET AL (1981), SCC, P. 665
FACTS Case concerned validity of aspect of the Professional Code. This was a novel statute in that it
created a Professions Tribunal that had exclusive jurisdiction, protected by a full privative
clause, to hear appeals from disciplinary committees of most of the statutory professional bodies
in Quebec. The Professional Tribunal was composed of 6 judges of the Provincial Court, where
judges are appointed pursuant to prov statute rather than by the fed Cabinet (as in the case
of ss96-101 courts). The statute provided that decisions of the tribunal were final.
ISSUE Does the privative clause in the Professional Code oust all of the review powers, especially the
power to review jurisdictional questions?
HELD No > privative clause is unconstitutional
REAS Laskin
• Even if the supervisory authority of the Superior Court on questions of jurisdiction was
expressly preserved, it would still not be a complete answer to a contention that the
Professions Tribunal is exercising powers more conformable to those belonging to a
s.96 court than those properly exercisable by a prov admin or quasi-judicial tribunal or
even a prov juridical tribunal
• Court of Appeal majority viewed the preclusive words of s 194 as not touching power & right of
the Superior Court to issue a writ of evocation where there has been a want or excess of
jurisdiction.
• 3 Issues arise from the reasons in the Court of Appeal:
• 1)The Professional Tribunal is not so much integrated into any scheme as it is sitting on
top of the various schemes. The Prof Tribunal is given no function other than of a general
tribunal of appeal in respect to all professions covered by the profession Code
• 2)Effect upon s 96 of a privative clause > which purports to insulate a prov adjudicative
tribunal from any review of its decisions.
o Where a prov Legislature purports to insulate one of its statutory tribunals from any
curial review of its adjudicative functions, the insulation encompassing jurisdiction, such
prov legislation must be struck down as unconstitutional by reason of having the
effect of constituting the tribunal a s 96 court.
• It is now unquestioned that privative clauses may, when properly framed, effectively
dispose of JR on questions of law and other issues NOT TOUCHING JURISDICTION
o It can not be left to a provincial statutory tribunal, in the face of s 96, to
determine the limits of its own jurisdiction without appeal or review.
• 3)Impact of Farrah case. Similar to this case based on facts and thus outcome must be the
same. In both cases there was a purported exclusion of the reviewing authority of any other
court, whether by appeal or by evocation.
§ To give a prov constituted statutory tribunal a jurisdiction in appeal on
questions of law w/o limitation and to reinforce this appellate authority by
excluding any supervisory recourse to the Quebec Superior Court, was to
create s 96 court
§ The present case is no different.
43
RATIO • Provincial legislature cannot insulate from review on jurisdictional grounds the decisions of
provincial appellate tribunals.
• Privative clauses cannot touch questions of jurisdiction. If they did so, they would be the
equivalent of s 96 court.

Notes (p. 668):
• SCC seemed to indicate that the appellate jurisdiction of the professions Tribunal in Quebec, even
w/o a full privative clause, could only be conferred constitutionally on a s 96 court.
• After Crevier, there were lingering doubts about the validity of prov legislation that created admin agencies
w/ appellate powers. Since Crevier, the case law has generally supported the view that court’s power to
subject tribunals to jurisdictional review has a constitutional foundation. That is what was
objectionable in Crevier was that it purported to remove part of the court’s core jurisdiction.
• While the original purpose of the judicature sections of the Constitution Act, 1867 was probably to ensure a
large measure of control by the fed gov over justice system, those sections are now understood primarily
as entrenching the right of individuals to seek legal protection from an independent judiciary.

CH 11 EXPERTISE & STATUTORY PURPOSE (2 & 3 R D FACTORS IN STANDARD OF REVIEW ANALYSIS P 673
• Looking at tribunal as institution (not on specific tribunal members)
• Markers of expertise in a case: superior technical capacity or understanding in a particular subject matter,
“field sensitivity” that a decision-maker acquired from years of operation in its assigned area.
• 1)A court must look for explicit markers in the statute such as provision that states the type of expertise
that tribunal members must or should possess as a condition of their appointments.
o i.e. Canada Human Rights Act – must have experience, expertise, interest in or sensitivity to
Human Rights.
• 2)Indirect indicators of legislature’s intentions – requirement that a tribunal include members who are
lawyers or judges (legal expertise) or more general statements about the statute’s aims and purpose.
• Statutory markers of expertise also contribute to an understanding of the legislature’s intentions
when it established the statutory regime.
• Dunsmuir – when its interpreting its own statute or closely-related deference should be paid.
• Since Dunsmuir, SCC has increasingly treated expertise as a PRESUMPTION in the standard of
review analysis.
• Alberta Teachers Association case “in creating admin tribunals legislatures confer decision-making
authority on certain matters to decision-makers who are assumed to have specialized expertise
with the assigned subject matter”.

PEZIM V BRITISH COLUMBIA (SUPERINTENDENT OF BROKERS) (1994), P. 676
FACTS This case involved decision of JR of the BC Securities Commission, a specialized agency that
regulates publicly traded shares of companies. The Commission had found that respondents
(Pezim and others) had failed to make timely disclosure for certain transactions as required
by the Act, were suspended from trading for 1 year and ordered to pay costs. Respondents
appeal on the question of law to the Court of Appeal > argued that commission erred in law in
interpretation of the Act phrase “material change” in the affairs of a reporting issues of shares.
The Court of Appeal allowed appeal. Commission appealed to SCC.
ISSUE
HELD Overturned Court of Appeal Decision, agreed w/ Commission
44
REAS Iacobucci
• 1)Emphasized that the primary goal of securities legislation is the protection of investing public.
• 2)Identified provisions of the Securities Act that demonstrated the expertise & specialization
of the BC Securities Commission.
• 3)Specified that definitions in the Securities Act show commission’s unique expertise within
this regulatory context.
• 4)Multiple roles of the commission both as administrator of the Securities Act & as policy
developer in the field, even if the policies cannot have status of law, cannot be treated as
legal pronouncements absent legal authority.
• <<<All these show deference

Specific Decision taken by the Commission
• Definition of “material change” showed that not all changes are material;; the latter are set in the
context of making sure that issuers keep investors up to date.
• Determination of what info should be disclosed is an issue which goes to the heart of
the regulatory expertise & mandate of the Commission i.e. regulating the securities
markets in the public’s interest
• “as soon as practicable” – same;; the timeliness of disclosure falls within the Commission’s
regulatory jurisdiction
• Deference must be awarded (given the nature of the securities industry, Commission’s
specialization of duties & policy development role) despite the absence of privative clause
and presence of statutory right of appeal > standard of review must be reasonableness
RATIO • Groundbreaking finding in this case was the fact that there was a statutory right of appeal
which wasn’t determinative of outcome nor the fact that there was no privative clause. Yet
standard of review resulted in finding of patent unreasonableness standard.

Courts might have to defer to an agency’s resolution of an issue of statutory interpretation even in
the face of a broad right of appeal on such issues
>>since then Dunsmuir held that when interpreting their home statues or other statutes
closely related admin actors might enjoy deference

*Next case elaborated deference based on expertise:
CANADA (DIRECTOR OF INVESTIGATION AND RESEARCH) V SOUTHAM INC (1997), P. 678
FACTS Involved an appeal by Southam Inc from a decision by the fed Competition Tribunal. In the course
of 1 year, Southam bought out 13 community newspapers (including 2 strongest ones), a real
estate publication, 3 distribution services, 2 printing concerns in & around Vancouver. The fed
competition agency, represented by its director of investigation & research, conducted an
investigation & ordered Southam to divest itself of 3 local newspapers, alleging that concentration
of these newspapers in one publisher was likely to lessen competition substantially in the retail
print advertising & real estate print advertising. However, the Competition Tribunal ordered
Southam to divest itself of only one local newspaper. Director of investigation & research
appealed tribunal’s decision on the merits & Southam appealed tribunal’s decision on the remedy.
Fed Court of Appeal allowed first appeal & dismissed second.
ISSUE
HELD
REAS Statutory Rights of Appeal
• Here there was statutory right of appeal and no privative clause
• In reviewing decision below, appellate court must take a look at:
o nature of problem, applicable law in terms of purpose, expertise of tribunal
Nature of the Problem
• As to the nature of problem there was disagreement b/w parties.
o Southam argued issue was one of fact which calls for deference.
45
o Director took position that it was question of law and the
o Court (p.679) concludes that it’s one of mixed law and fact.
• Meaning of questions of law, fact and mixed law and fact questions:
o 1)Question of law relates to what applicable legal test is (i.e. what is negligence)
o 2)Fact – deals w/ what actually occurred: who, what, where, when (i.e. what
happened)
o 3)Mixed – do facts satisfy particular legal tests (i.e. did D satisfy standard of care)
• It is often difficult to determine if someone is dealing w/ question of law or mixed law and fact
• Pointed out Pezim was question of law case
• 1)Questions of statutory interpretation are generally question of law
• 2)Point in controversy was one that might potentially arise in many cases
• When talking about mixed fact & law issue is looking at decision:
o Does it have potential to apply widely to many cases to have precedential effect
and that indicates its closer to a question of law and letter deference is owed
o On the other hand, if facts are unique to the particular case and decision has
little precedential value, then it’s unqualified question of law – more deference

• Respondent argued that Tribunal erred b/c it hasn’t considered relevant but indirect evidence
• Court stated that it would be a question of law if tribunal had to consider evidence
A,B,C,D and it only considered A,B,C
• However, court found para 42 – court looking at decision of the Committee and indicating its
clear it took into account relevant evidence
• Argument that Tribunal should have given more weight to one particular evidence is not
accepted
• The most that can be said, as a matter of law, is that tribunal should consider each factor, but
the according of weight to the factors should be left to the tribunal.
• In regard to question of mixed fact and law, court stated that appellate courts should be
reluctant to venture into a re-examination of the conclusions of the Tribunal on
questions of mixed law & fact
• Thus there was no error

The words of the enabling statute
• Commented on the fact there was broad right of appeal “an appeal lies..”.

Purpose of statute that the tribunal administers
• Broad statement of purpose of statute Competition Act
• The aims of the act are more economic than they are strictly legal
• Specialized tribunal is better fitted than court to address issues arising of this statute
• Deference should be awarded – purposes of the act are better served by deference to
decision of tribunal
• Expertise of tribunal – composition of tribunal – 4 fed court judges and 8 non-judicial
appointments of individuals (w/ economic/business knowledge)
o Knowledge of economic industry, commerce, public affairs
• Judges were given jurisdiction to make legal decisions
• If mix law and fact – both judges and economists had to share jurisdiction

• Question they had to determine evolved around relevant product market for real estate
• Called for assessment of economic significance of evidence.
• Tribunal is better suited than judges to make those assessments.
RATIO • Defined what is question of law, fact, mixed law & fact
• Great deal of emphasis was placed on expertise of the tribunal
46
• Court focused on expertise as the most important of the 4 factors – shifted over time and
focus is on nature of question (after Dunsmuir) at least by its pointing on correctness or
reasonableness standard
• This court created mid-level standard: reasonableness simpliciter

BISHOP V ALBERTA COLLEGE OF OPTOMETRISTS (2009) ABCA, P. 684

• Optometrist overcharged. The Council found him guilty and awarded costs and fines.
• Also follows Dunsmuir approach and found standards of review was reasonableness.
• Ratio: a decision is reasonable if it is justifiable, transparent and intelligeble and “falls within a
range of possible, acceptable outcomes which are defensible in respect of the facts and law”

STATUTORY PURPOSE
• Key factor in standard of review analysis
• Roncarelli v Duplessis (1959) case – directed the chair of Liquor License Board. Bail money for
Jehovah’s witnesses. Director of board had jurisdiction to rescind licenses at his sole discretion. Court split
on question of sole discretion.
• There is always a perspective within which statute is intended to operate
• RATIO: Statutory purpose – respecting choice legislatures made and being deferential to those who
were delegated authority.
• Steers courts away from interventionist approach.

CH 12 – NATURE OF THE QUESTION, P. 703
• Nature of question: law, fact, mixed law and fact

FACTUAL QUESTIONS, P. 705
• Dunsmuir quote: “where question is one of fact, discretion or policy deference will usually apply
automatically. We believe the same standard must apply to the review of questions where the legal &
factual issues are intertwined with and cannot be readily separated (mixed law & fact)”
• We start with assumption of reasonableness standard when dealing w/ factual questions
o 1)It is the primary decision-maker that has had first-hand access to the info on which a factual
assessment was based & to the regulatory context in which the decision is made.
§ Decision-makers are in best place to evaluate factual issues. Especially where evidence
flows from testimony.
o 2)Also, factual findings in a specific case are unlikely to affect future cases or the legal system
• Principle: questions of fact - so long as a decision-maker arrived at its factual conclusions
reasonably, by ensuring that there was evidence to support them and by considering the relevant
evidence, the courts will not interfere. The same justification for deference applies to questions w/
mixed fact and law.

DR Q V COLLEGE OF PHYSICIANS AND SURGEONS OF BRITISH COLUMBIA (2003), P. 706
*Pre-dates Dunsmuir
FACTS • Misconduct of a physician. Engaged in sexual relationship w/ patient over long period of time.
• Disciplinary committee – misconduct – 18 months suspension of practice
• Appeal – disagreed w/ Committees’ findings on credibility and quashed the decision.
• Went to BC court of appeal – dismissed appeal
ISSUE
HELD BC Supreme Court exceeded limits of JR authorized by Act by engaging in a
reconsideration of the Committee’s findings of fact & that the Court of Appeal erred in failing
to set aside order of the reviewing Judge. Reinstate order of College of Physicians & Surgeons
47
REAS McLachlin CJ:
• Case turned on an assessment of credibility (fact)
• Committee found complainant to be credible in her testimony, found Dr Q’s evidence not to be
credible.
Role of the Committee
• Committee had 3 tasks:
o 1)Make findings of fact (including assessment of credibility)
o 2)Select standard or proof
o 3)Apply standard of proof to the facts
• Committee applied standard of “clear and cogent evidence”
• Reviewing J substituted her views on credibility for that of the committee’s.
Pragmatic & Functional Approach
• 1)Existence of privative clause right of appeal
• Privative clause – deference, right of appeal – less deference.
• Might be broad privative clause or need to prove a certified question like in Baker
• Stronger privative clause = greater deference
• 2)Relative expertise
• It’s relative concept: expertise must be higher (not the same) as reviewing court’s for greater
deference to be granted
• And question must be the one that falls within the scope of this greater deference
o a)court must characterize expertise of tribunal
o b)must consider it’s own expertise
o c)must identify nature of specific issue before admin decision-maker relative to
expertise
• Indicia of expertise: composition of body, legislation calling for qualifications, expertise gained
by experience, purpose of statute and provisions under review.
• Question is whether b/c of specialized knowledge of its decision-makers, special procedure or
non-judicial means of implanting the Act – admin body will be entitled to greater curial
deference
• 3)Purpose of the statute
• Purpose of legislature. Look at purpose act as whole and section
• If question of law > look at purpose of section
• When tribunal is balancing competing policy objectives or interests of various
constituencies, that balancing calls for deference. Uses phrase “decision is polycentric in
nature”.
• A statutory purpose that requires tribunal to select from a range of remedial choices or admin
responses, is concerned w/ protection of public, engages policy issues, or involve balancing
of multiple sets of interests & considerations – greater deference
• Piece of legislation or statutory provision that essentially seeks to resolve disputes or
determine rights b/w 2 parties – less deference
• The more decision approximates judicial – the less deference is owed.
• 4)Nature of the problem
• Factual issues – will intervene only if there is a “palpable and overriding error” or where the
finding was “clearly wrong”
• Pure law and of particular general importance – less deference
• Mix of fact and law – more deference if the issue is more fact-intense and less deference if
law-intense
• Application
• 1)There is right of appeal (indicates less deference).
• 2)Committee is no more expert than court (indicates less deference)
• 3)Purpose of statute (indicates there should be greater deference) and the nature of problem
that of credibility of witnesses (requires deference).
48
• Concludes by saying reasonableness simpliciter.
RATIO • SCC emphasized the factual aspects of the decision of a prof disciplinary committee –
especially its basis in the assessment of the credibility of witnesses – to justify reasonableness
standard, even in the face of a broad statutory right of appeal & relatively limited expertise of
the decision-maker.
QUESTION OF LAW

• Dunsmuir – adopted correctness standard for some but not all questions of law
o 1)dealing w/ Constitutional questions – division of powers;; questions regarding jurisdictional lines
b/w 2 or 2 competing specialized tribunals
o 2)general law of central importance to the legal system as a whole and outside of legal expertise of
tribunal
o 3) true questions of jurisdiction, demarcation of conflict of jurisdiction b/w tribunal and court and
impact on the administration of justice as a whole
• Goal is to ensure a uniform and consistent answers from courts

PUSHPANATHAN V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) (1998), P. 714
FACTS • Pre-Dunsmuir. P had PR in Canada, not citizenship. Had refugee status when he first arrived.
Convicted and sentenced to 8 yrs for conspiracy of trafficking drugs and narcotics. Sought
to obtain refugee status b/c there was deportation order issued.
• Decision of Immigration and Refugee Board which determined – there were not sufficient H&C
grounds in these circumstances to grant a release from deportation order. Was subject to
deportation.
• Question of his status as refugee, in dealing w/ that court had to look at UN Convention of
Refugees and that convention excluded certain classes of ppl from obtaining refugee status
and among them were individuals guilty of acts contrary to principles and purposes of
UN. Solely case dealing w/ whether or not he fell in this class of individuals. Board found that
he was.
• Fed Court Trial Division – dismissed JR – and certified the question of general importance “is it
an error of law for the Refugee Division to interpret art 1F(c) of the Convention to exclude from
refugee status an individual guilty of a serious narcotics offence committed in Canada”
• Fed Court – no - upheld Trial judge’s decision
ISSUE 1)Proper standard of review 2)meaning of exclusion from refugee status of those guilty of acts..
HELD • 1)Correctness;; 2) Dealt in Ch 14
REAS Bastarahe J
• Question that goes to jurisdiction is simply descriptive of provision for which proper standard of
review is correctness based on pragmatic and functional approach (renamed as standard of
review analysis) the tribunal must make correct interpretation and to which no deference will be
shown
• It’s a mistake to label question as jurisdictional prior to undertaking standard of review
analysis - only after analysis u can determine that matter goes to jurisdiction.

Purpose of the Act
• Specialized nature of legislative structure & dispute-settlement mechanism, need for expertise,
specific qualifications of members
• Playing protective role and policy development
• If legal principles are vague, open-textured, involve a multi-factored balancing test – lower
deference
• Policentricity – more deference should be granted
• A polycentric issue is one which involves a large # of interlocking & interacting interests
& considerations
49
• Consideration of numerous interests simultaneously & promulgation of solutions which
concurrently balance benefits & costs for many different parties

Nature of the problem
• Distinctions b/w fact & law are sometimes difficult to determine but that a finding which will
have great precedential significance, impact on other decisions – indicates that u are dealing
w/ a question of law
• Refers to a decision of court in Pasiechnyk– shows that notwithstanding question of law,
going through standard of review analysis and looking at other factors can lead to conclusion
that there should be deference paid on reasonableness standard.

Immigration Act
• Provisions – exclusivity and finality of decisions and on the other hand the right to make
application for JR on consent of Fed Court Judge and from there to Fed court of appeal

Previous Jurisprudence
• First time court has been asked to determine standard of review of Immigration and Refugee
Board.
• There was a case – decision of Fed court – Sivasamboo v Canada – fed court held standard of
review of IRB was patent unreasonableness and high degree of deference must be paid.
Although court doesn’t come out and says its wrong, it comes to a different conclusion of
standard of review – correctness.

Proper Standard: Correctness
• J addresses affect of s 83 – certified question – “a serious question of general importance”.
• Concludes that it would be incoherent if this matter of review was anything but correctness
given language of s 83 of immigration act
(We know later on in Baker – this statement wasn’t accepted. Standard of review was held to be
reasonableness notwithstanding existence of certified question of law)

• In this decision court determined when certified q came before, J can address entire judgment,
not just that question – broader ambit to court’s review of decisions
• Para 45 – there is no greater expertise in Board (note: not tribunal) than in the court itself to
make determination of international law. The Board’s expertise in matters relating to human
rights is far less developed than that of human rights tribunal
• Convention itself is a human rights instrument and was interpreted like that by court. This is
another reason as to why there is limited expertise in tribunal.
• Tribunal doesn’t have Human Rights expertise and that matter at issue raises human
rights questions.
• Focuses on make up of tribunal. Significance in determining expertise. Largest admin
tribunal in Canada. Only 10% of members are lawyers and its not required that lawyer sit on
panel. Another reason as to doubting expertise of tribunal to make determination of meaning of
intl convention.
• Board can’t be characterized as performing a “managerial” or “supervisory” function.
The Board is not responsible for policy evolution. Expertise of the Board is limited to
determining refugee status and whether or not failure to grant refugee status will place person
at risk of persecution.
• Absence of a strong privative clause
RATIO Good example of question of law.
Court emphasized importance of issue of legal interpretation for future cases and the relative lack
of expertise of the Immigration and Refugee board in the definition of human rights guarantees
50
• Author asks us if this case would be decided in the same way after Dunsmuir. Don’t worry about it. This
decision attracted the full court in its outcome and the fact that the tribunal was dealing w/ intl law (another
legal system) which was integrated into Canadian law goes a long way.

ELGIE V ALBERTA (WORKER’S COMPENSATION, APPEALS COMMISSION), 2009, P. 722
• Question was whether or not this woman who was estranged from her husband but still was spouse, was
entitled to receive benefits under the Act.
• Meaning of dependent under that act – member of family of that worker.
• Alberta court goes through standard of review analysis
• But it characterized this question of “dependent” – fell outside of expertise of Workers Compensation
Tribunal – involved matters of family law and general principles associated w/ family law.
• Meaning of dependency
• RATIO: If it is a general principle of law falling outside of expertise of tribunal the reviewing court
might not need to give deference.
• Therefore, court concluded that standard of review in those circumstances was correctness.

NOR-‐MAN REGIONAL HEALTH AUTHORITY INC V MANITOBA ASSOCIATION OF HEATH CARE
PROFESSIONALS (2011), P. 723
FACTS • Another example where where court was dealing w/ general principles of law.
• Issue is whether or not doctrine of promissory estoppel raises question of general law which
requires correctness standard
• Arbitrator had to apply doctrine in case of union and employer.
• Arbitrator held union was estoppel from making a claim for duration of collective agreement.
• Manitoba court of appeal – this was general principle of law – concept of promissory estoppel
originated in equity and was developed by courts and its application is not unique to labour law
but can be implicated in all matters of contractual relationships.
ISSUE
HELD • Reasonableness and not correctness is standard
REAS • Our concern here is w/ an estoppel imposed as a remedy by an arbitrator seized of a
grievance in virtue of a collective agreement
• No aspect of this remedy that transforms it into question of general law
• Common law & equitable doctrines emanate from the courts but it hardly follows that
arbitrators lack either the legal authority or the expertise required to adapt and apply
them in a manner more appropriate to the arbitration of disputes & grievances in a
labour relations context.
RATIO • Arbitrator is entitled to use common law concepts when reaching his decisions. Not only that
but the arbitrator can tailor common law to meet requirements of collective bargaining regime
and relationship b/w parties.
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, LOCAL 30 V IRVING PULP &
PAPER, 2013, P. 725
• Question of central importance to the legal system – NB Court of Appeal has taken position that the issue
raised there had to do w/ mandatory testing for drugs/alcohol at workplace – it was of importance to the
public at large
• HELD: SCC stated that wasn’t sufficient to transform a general principle of law to one central to
legal system (whatever socio-economic impact) questions is if its central to the legal system

ROGERS COMMUNICATIONS INC V SOCIETY COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA,
2012, P. 727
51
• Example where court applied correctness approach to question of law
• Issue had to do w/ copyright – online downloading of music and whether or not this was subject to
copyright and owners were entitled to some royalties. Had to interpret of what it meant to broadcast “to the
public” in s 3(1)(f) of the Copyright Act.
• The Copyright Act allowed both the tribunal and the courts to apply the statute.
• Court stated it would be inconsistent for the court to review a legal question on JR of a decision of the
Board on a deferential standard and decide exactly the same legal question de novo if it arose in an
infringement action in the court.
• Legislative intent was not to recognize superior expertise of the Board relative to the court w/
respect to such legal questions thus lower standard and correctness approach.

• Comments – other decisions of court – when looking at expertise, u are looking at possibility of making a
finding upon question of law that deference is owed only in those cases were statute is ambiguous. Court
has never embraced that. It was said in beginning of modern standard analysis case Cupe (next chapter).

INVESTMENT DEALERS ASSOCIATION OF CANADA V DASS, 2008, BCCA, P. 728
• Here tribunal was interpreting its home statute – BC Securities Commission and question is whether or
not a by-law (which was enacted) was lawful by-law in the face of the statute.
• The statute vested in the tribunal jurisdiction to regulate conduct of members of the IDA.
• Statutory provision – p. 728
• IDA took position it retained jurisdiction to maintain misconduct of person who left organization within 5 yrs.
There is ambiguity b/w that and language of statute – regulate conduct of its members …in accordance
with its by-laws
• How should done interpret that provision
• Analyses – this was question within jurisdiction of tribunal – wasn’t a question of general law –
merely statutory interpretation – thus reasonableness was a standard of review to apply

DISCRETIONARY AND POLICY QUESTIONS IN THE STANDARD OF REVIEW ANALYSIS
• We know from Baker case that SCC held that dealing w/ exercises of discretion (Minister to grant H&C
grounds exemption) that one should do standard of review analysis. Prior to that time courts didn’t use
standard of review analysis.
• One should bear in mind that in all of these cases, dealing w/ question of law, fact, mixed fact & law
– where there is a choice by decision maker b/w different options, discretion is engaged.
• This is particularly when u have broad grant of statutory authority.
o The broader it is - the greater the discretion is involved
• Look at relevant statute to determine whether statute frames decision-maker’s authority in very general
terms, such that it requires choices to be made from a wide range of options, usually involving broadly
framed policy considerations.
• There are indicators in the statute – discretion is exercised by decision maker – ‘in the public
interest’, “in the circumstances”, or “in opinion of”
• One has to remember always that there is always going to be a limit on exercise of discretion.
Emphasize that there is always limit p, 731 Duplessis “in public regulation of this sort there is no such thing
as absolute discretion that is action to be taken on any ground…”
o All discretions are limited to some extent

CANADA (CITIZENSHIP AND IMMIGRATION) V KHOSA (2009), P. 731
FACTS • Degree of deference given to exercise of discretion – another Immigration case
• K came to Canada when he was 14. Was speeding, convicted of crim negligence, death of
passenger – smashed car. After he served time, he was ordered to be deported. He made
application to Appeal division for H&C consideration. Board looked at questions of remorse,
52
implication, likelihood of reoffending – all of this addressed by trial court J. Clearly expressed
remorse, employed, went to Indian temple.
• Fed Court of Appeal – thought that IAD disposition was unjust.
• IAD - Standard of review – patent unreasonableness.
• Fed court held it was reasonableness simpliciter (mid level of deference)
ISSUE • SCC – restored IAD’s decision – deported – no H&C grounds
HELD
REAS • IAD (Board/Tribunal) was engaged in application of broad policy considerations to the facts
as found to be relevant
• The question whether Khosa had shown “sufficient H&C considerations” to warrant
relief from his removal order, was a decision which Parliament confided to the IAD and
NOT to the courts
• Higher deference must be awarded to the IAD decision
• Decision fell within range of reasonable outcomes.

Dunsmuir analysis
• J discussed continuing life of the “patent unreasonableness” standard under BC admin law
• Looked at existing jurisprudence – which points to adoption of a “reasonableness” standard
and not correctness
• This conclusion is reinforced by the second step of analysis
• Overall evaluation based on these factors – bearing in mind that not all factors will
necessarily be relevant for every sing case
o 1)Here there was exclusivity clause and no right of appeal – indicated deference
o 2)Purpose of tribunal – wide range of appellate jurisdiction. These decisions were
reviewable on leave to Fed Court – mid level of privative clause
o 3)Nature of question – had to consider what H&C considerations were brought,
sufficiency of those considerations – fact and policy driven assessment by IAD
o Decision emphasized that K had no right to remain in Canada, he is seeking a
privilege. (Baker – impact of decision on Baker – hardship would be caused – none
of that here. As far as court was concerned IAD was in best position to make
judgment on H&C grounds.)
o 4)IAD members have considerable expertise in determining appeals under IRPA
• Reasonableness is the standard and IAD’s outcome was reasonable
RATIO
THE DISAGGREGATION DILEMMA: LEVIS AND VIA RAIL

• In some cases, a court may explicitly disaggregate an aspect of the overall decision under review, typically
but not always a question of law, in order to subject that discrete question to a different standard of review
from that applied to the overall decision.
o When and how a court should isolate one question from others in the course of standard of review
analysis?
• Choice to isolate a question of law often leads to correctness standard and to the court’s
substitution of its answer for the tribunal’s.
• These decisions were both split decisions and were issued within a day of each other. Came to
opposite conclusions on question of disaggregation
• Controversial – Dunsmuir – focus on 4 types of decision that attract correctness review but the clash
revolves around impact that disaggregation may have on a final outcome. If court focuses on a single
question – w/o more general review of tribunal and its expertise, its more likely than not will be less
(than) deferential

Levis
53
• J emphasized standard of review analysis can lead to different standards of review
• In this case there was a strong privative clause and also there was provision in labour code that granted
jurisdiction to consider any other statute that would have relevance to outcome at arbitration
• Majority – issue here fell outside of arbitration’s expertise – dealing w/ police and there were 2 statues
– police act and some city’s act (conflict b/w 2 – legal question)
• Court took review to subject arbitrator’s findings on interpretation of statute – that decision had to be
reviewed on correctness standard notwithstanding the overall decision that had to be reviewed on
reasonableness standard.
• Dissent Abella J – given privative clause and authority to interpret other statutes and expertise of
arbitrator – this was strong argument for single standard of review of reasonableness.

Via Rail
• J Abella – Majority - held same in Via Rail case – same type of issue.
• Via Rail purchased some cars – turned out not wheelchair accessible and complaint was filed – that Via
Rail has obligation to provide wheelchair accessible rail cars – tribunal found in their favour that it was
discriminatory not to provide accessibility.
• Dealing w/ Canadian transportation tribunal – has jurisdiction over transportation act – that deal w/
transportation nationwide and international.
• Abella pointed out fed transportation system is highly complex. Mandate included Human rights elements
• Abella’s position was their interpretation of statute and application – fell within their jurisdiction – it
was mandate of tribunal how to make transportation more accessible.
• Minority – in interpreting certain phrases in legislation (including reasonable accommodation) – those
interpretations engaged human rights matters – fell outside of special expertise of tribunal and had
jurisdiction implications.

• It’s hard to reconcile those 2 decisions - even within each decision approaches taken by Majority and
Dissent
• FOR US: Recognize court will in some circumstances disaggregate overall decision made by
tribunal on reasonableness standard on specific determinations and subject other part to review on
standard of correctness
• Text finishes up w/ short decision from – example of disaggregation – made by original trial J and court of
appeal disapproving and taking position issues that trial judge tried to disaggregate were intertwined
and couldn’t be disaggregated.

CH 13 -‐ JURISDICTIONAL QUESTIONS & ORIGINS OF STANDARD OF REVIEW ANALYSIS, P. 743
• Courts have to ensure that admin decision-makers do not exceed the scope of their delegated
powers
• There is an ongoing debate over concept of jurisdiction and jurisdictional questions b/w those arguing for
greater judicial activism and restraint
• Focus of the disagreements – to what extent can tribunal decide scope of its own jurisdiction?
Particularly where there is a strong privative clause
o One extreme – restrictive view – admin actor cannot act unless a court has determined that it has
jurisdiction to act or at least that its actions are always subject to the court’s review of its ability to
decide its own authority to act.
o Another extreme – permissive view – court has no greater right to interpret the terms of a statutory
grant of power than does the grant-holder and so courts should not question conclusions reached
by admin decision-makers.
• From Dunsmuir and Crevier – JR is constitutionally entrenched – courts through JR play a
constitutional role in ensuring that admin tribunals exercise only authority that they have been
granted by statute > rule of law and legislative supremacy – court ensures tribunal acts intra vires
in their statutory authority.
54
• Dunsmuir also at the same time, stated that the concept of “jurisdictional error” must not be stretched
beyond the narrow domain of a decision-maker’s authority to enter into an inquiry.
• Court said they didn’t want to return to earlier jurisprudence where court held one could characterize some
questions as collateral/preliminary to the actual jurisdiction of tribunal
• Jurisdiction is intended in the narrow sense of whether or not tribunal had authority to make
inquiry.
• True questions of jurisdiction arise where tribunal must explicitly determine whether its statutory grant of
power gives it the authority to decide a particular matter. Tribunal must interpret grant of authority correctly
or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction.

GUERIN (2017 SCC 42)
• Dealt w/ standard provision u find vis a vis arbitrator’s. Tradition is that they should be granted
deference in decisions they make in determining dispute under collective agreement
• Arbitrator held that he had no jurisdiction of matter before him.
• Question was if that decision could stand and if so on what basis?
• Court split on question if this was jurisdiction question.
• That phrase “whether the matter is arbitrated”
• Majority – it wasn’t a true question of jurisdiction
• There was a concurring judgment by 2 members – took position it was a matter of jurisdiction plus dissent.
• Why do we focus on this? What should standard of review be.
• If it’s a jurisdictional in nature – correctness, if not – reasonableness.
• Majority – this required standard of review analysis based on reasonableness

THE “PRELIMINARY QUESTION” DOCTRINE, P. 754
• Prior to CUPE JR followed this doctrine which inquired into whether a tribunal had erred in
determining the scope of its jurisdiction
• For a long time, the courts allocated decision-making power b/w courts and admin agencies (that were
protected by privative clause) by attempting to distinguish b/w questions of law that were within the area
of decision-making authority or jurisdiction of the agency AND on the other hand those that were
either “preliminary” to the exercise of the agency’s jurisdiction or “collateral” to the merits of the
decision
• Despite presence of a privative clause, a court was entitled on this theory to intervene in the admin process
if it found that some condition precedent to the agency’s exercise of its jurisdiction was not satisfied.
• Agency’s determinations of preliminary questions were subject to correctness standard.
• On contrast, ANY question of law within the agency’s jurisdiction was entirely immune b/c of
privative clause – reasonableness standard.
• This doctrine didn’t work. See why on p. 755. Difficulty was in getting agreement on how to describe
preliminary or collateral questions
• If one was result driven – one could find statutory provisions
• Example – there was case in 70’s – human rights code prohibits discrimination – but there is exclusion to
allow discrimination where LL lives in the same premises – u can advertise on basis of gender. Case was
referred to Human Rights tribunal – there was prohibition application arguing tribunal only had jurisdiction
to determine this complaint only if it could be shown LL was not living in self-contained dwelling unit.
• Another example – membership of trade union – court said this question about membership in trade union
is a preliminary matter that has to be determined correctly for tribunal to move on and determine if there is
sufficient support for the union in that case.

THE ORIGINS OF THE STANDARD OF REVIEW ANALYSIS: CUPE (1979)
CUPE V NB LIQUOUR CORPORATION (1979) P. 756
55
FACTS • Question before court arose out of interpretation of particular provision in a statute
• Deals – with what rights of parties are when union gets into strike position (gone through
process required by statute). Union gone through that process and now was in position to call
strike which they did. Provision 102.3 ab indicates what rights of employees are and what
limitations are on actions of employees and mgmt. Limitation on action of employees –
couldn’t picket – prohibited from picketing (letting the world know u are on strike and trying to
convince ppl not to engage in commercial and other activity vs strike just withdrawing). Private
sector – economic conflict – employees convince employer to deal w/ the issue.
• Employer tried to maintain production – by requiring mgmt. to do job of striking
employees
• Public sector legislation argument was made before board – was that b/c employees
were giving up right to picket in return they should get smth. What is it that they get in
return? S 102.3.a – employer shall not replace striking employees or fill in their position w/ any
other employee. What did this mean (main question in this case and was the board correct?
ISSUE
HELD
REAS • Dickson – provision is ambiguous.
• What does it mean?
• Court of appeal approached it w/ preliminary question doctrine – p. 757. 2 questions were
posed w/ fist question being condition precedent to and collateral to determining the second
• 1)Does the act prohibit mgmt. personnel from replacing striking employees 2) if so did mgmt.
personnel replace them?
• Court rejected this collateral doctrine
• J didn’t think language of preliminary assisted on determining jurisdiction
• Preferable approach to jurisdictional question – jurisdiction to be determined at the
outset of inquiry
• Question of what is jurisdictional is difficult to determine
• “The courts should not be alert to brand as jurisdictional, and thus subject to broader
curial review, that which may be doubtfully so”.

Kinda goes through Dunsmuir Analysis
• The general subject-matter of the dispute b/w parties fell within the confines of the act
• There is a finality/privative clause s101(1) and (2) - this is clearly an indication from legislature
that public service labour relations should be determined by board
• Labour board is a specialized tribunal which administers a comprehensive statute regulating
labour relations.
• Board has expertise and developed labour relations sense from its accumulated experience
– this board was a sub-class of labour board w/ one dealing specifically w/ public sector –
Public Service Labour Relations Board
• One has to balance public services w/ rights of employees to engage in collective
bargaining process
• Given broad powers.
• The way this statute is formulated very differently from private sector – economic contract

• But under this statutory regime not all employees can withdraw their services – provision to
designate certain employees maintain certain services so there is no complete stop to
provision of essential services.
• In this case – strike by liquor board employees – we have system of monopolization by a state
over sale of alcohol
• Board was of view there is no such thing as an essential service – therefore no
designation by employees
56
• Gov took view that they should maintain service in sale of alcohol - managerial
employees managed stores
• S 102.3.a. how do we read that “or” – disjunctively or conjunctively
• Employer shall not:
o 1)Replace employees (OR)
o 2)Fill their position with any other employee
§ Shall not replace employees;; fill their position (can’t do either)
o Gov – conjunctively – and union – disjunctively
• Board held – u read it disjunctively – w/ any other employee only applies to filling in
position
o Employer should not replace striking employees
o Limitation on rights of picketing in return for their positions wouldn’t be filled
• Court of appeal – disagreed – read it conjunctively

• J – continues w/ importance of expertise of board – interpretation of this provision of act lies
logically at the heart of specialized jurisdiction of tribunal – goes on to say – board was entitled
to error
• But there was limitation on error – that it couldn’t be patently unreasonable
• Was board’s interpretation so patently unreasonable – that it demands intervention of court
• Introduction of standard of review of patent unreasonableness
• States that it will be patently unreasonable if “acting in bad faith, basing the decision on
extraneous/irrelevant matters, failing to take relevant factors into account, breaching the
provisions of natural justice or misinterpreting the provisions of the Act so as to embark
on an inquiry or answer a question not remitted to it” as per Nipawin case.
• Goes on to talk about interpretation of board vs court of appeal – this interpretation of the board
– interpretation reasonable
RATIO • First case to introduce pragmatic and functional approach (just didn’t name it)
• Introduction of standard of review of patent unreasonableness

• P. 763 – shift of focus to rationality of board’s decision rather than a priori classification of a matter as going
to jurisdiction
• Some of jurisprudence that followed – led to uncertainty as to what court meant in Cupe
• P. 763 – bottom of page
• Some case – court held provision of statute that confers limits of jurisdiction of tribunal – standard of
correctness but what to we mean provision that confers, mimics or describes jurisdiction of tribunal
• Cupe – is first case to introduce pragmatic and functional approach > which in Dunsaimr was renamed as
standard of review analysis
• P. 764 – para 125 – true problem of jurisdictional review is to discover if legislature intended for decision
makers decision to be binding/ what was intention of legislature in allocating authority to tribunal to make
determinations under statutory regime
THE CONCEPT OF JURISDICTIONAL ERROR
PUBLIC SERVICE ALLIANCE OF CANADA V CANADIAN FEDERAL PILOTS ASSOCIATION, 2009, P. 750
FACTS • This judgment – year after Dunsmuir – dynamic in its interpretation of Dunsmuir doctrine of JR
• Labour relations act – federal one – which defines bargaining units based on occupational
class and then assigns different positions to these occupational groups.
• Board made decision w/ respect to certain employees – Act excluded such employees.
• Applicants argue Board exceeded its jurisdiction when it allocated an employee to a
bargaining unit comprising an occupational group from which the position held by the
employee was specifically excluded
57
• Fed Court of appeal – 18.1 fed court act – fed court may grant relief if it is satisfied that fed
board acted w/o jurisdiction, beyond jurisdiction or refused to exercise jurisdiction.
Entrenched in statute is concept of jurisdiction
• Jurisdictional error is the only ground of review available to the applicants in this case –
preclusive clause ousts the Court’s power to review the decision of fed tribunals for “mere”
error of law.
ISSUE
HELD
REAS J Evans
• Dunsmuir states that jurisdictional issues command a correctness standard
• A tribunal may exceed its jurisdiction in one of 2 ways:
• 1)A tribunal will have “acted beyond its jurisdiction” if it had decided incorrectly a legal
question for which correctness is the applicable standard of review.
§ We know from Dunsmuir – there were 4 such classes of decision making, one
of which was true question of jurisdiction
o The Board will have acted beyond its jurisdiction if the court concludes that the board
had to be correct in deciding whether the discretion conferred by s 58 authorized it to
include a position in a bargaining unit when the definition of the unit specifically
excluded it and the Court disagrees w/ the Board’s decision.
• 2)If on a mere question of law, it reaches unreasonable decision – acted being
jurisdiction
o Even if its interpretation of s 58 is not subject to review for correctness, the Board will
nonetheless have acted beyond jurisdiction if its interpretation is unreasonable.
• Board is not authorized by Parliament to make a decision that is based on an
unreasonable interpretation of its enabling legislation (even if preclusive clause exists).
• Talks about unreasonableness as standard – if unreasonable u failed to meet reasonable
standard
Correctness Review and Jurisdictional Questions
• Reminds us there is presumption in Dunsmuir that tribunal interpreting its enabling legislation
is generally reviewable on standard of reasonableness
• Confusion that arises para 37 – how to know whether smth is a true of question of
jurisdiction
• Pushpanathan (p 40) – “jurisdictional error is simply error on an issue w/ respect to
which, according to the outcome of the pragmatic & functional analysis, the tribunal
must make a correct interpretation and to which deference must be shown”
o This is key to understanding how to identify jurisdictional question

• Indicated limited range of jurisdictional questions by speaking of true questions of jurisdiction
• Jurisdiction is intended in the narrow sense of whether or not the tribunal had the
authority to make the inquiry. In other words, true jurisdiction question arise where the
tribunal must explicitly determine whether its statutory grant of power gives it the
authority to decide a particular matter
• *Contradiction – isn’t this language used in earlier jurisprudence
• It’s clear – in using that language its not incorporating earlier jurisprudence
• A standard of review analysis is required when an adjudicative admin tribunal is said to
have exceeded its jurisdiction b/c it misinterpreted a provision of its enabling statute.
o Went through standard of analysis – came to conclusion standard of review was
reasonableness
• In applying that standard concluded his decision was unreasonable and as J Evans said he
exceeded his jurisdiction – determination if one exceeded it can only be determined when one
went through standard of review analysis
• In Dunsmuir court approached this question of jurisdiction by articulating that issue in dispute
raised jurisdictional issue
58
• Concludes: para 50 p. 754 – to establish board exceeded its jurisdiction – applicant must
demonstrate that board’s interpretation was unreasonable
RATIO • In order to establish that the Board has exceeded its jurisdiction by misinterpreting a
provision in its enabling statute, which neither raises a question of law of central importance to
the legal system nor demarcates its authority vis-à-vis another tribunal, an applicant must
demonstrate that the Board’s interpretation was unreasonable.
• The tribunal must have legal authority to interpret and apply disputed provision of its enabling
statute.
ALBERTA (INFORMATION & PRIVACY COMMISSIONER) V ALBERTA TEACHERS’ ASSOCIATION 2011, P. 746
FACTS • This was a year after Dunsmuir – what are some examples of true question of jurisdiction – that
is raised in this case
ISSUE
HELD
REAS • Points out that – experience shown category of true questions of jurisdiction – court hasn’t
identified a true question of jurisdiction – true then and true today – there hasn’t been case
where court made finding of a true question of jurisdiction
• Is there such a thing? Para 42 – unable to provide definition of what might constitute a true
question of jurisdiction. Maintain that category courts will continue to be in doubt – says – I
won’t rule out there may be such a thing.
• Sufficient to say unless situation is exceptional – interpretation by tribunal of its own
statute should be presumed to be a question of statutory interpretation subject to
deference – reasonableness standard.
Dissent
• Page 747-8-9- remarks rejecting J Rosthein – if we make a presumption that any tribunal is
interpreting legislation – if we presume they have jurisdiction – what do we do to rebut that
presumption?
• Arguing that the whole entrenchment of JR constitutionally falls for court to balance – para 93 –
there has to be a balance b/w legality and legislature supremacy – thinks there are questions
were courts applied to substitute their understanding of legislation – use of these terms is not
always helpful
• Arguing that rule of law approach – concept of jurisdiction is legitimate and it plays itself out by
our looking at whether or not tribunal is acting in manner legislature intended it to act
RATIO • When considering a decision of an admin tribunal interpreting or applying its home statute, it
should be presumed that the appropriate standard of review is reasonableness
• As long as the true question of jurisdiction category remains, the party seeking to invoke it must
be required to demonstrate why the court should not review a tribunal’s interpretation of its
home statute on the deferential standard of reasonableness.
CH 14 APPLICATION OF STANDARD OF REVIEW, P. 769
PUSHPANATHAN V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) 1998, P. 770
FACTS • Pre-Dunsmuir. Facts p. 714 – individual had been convicted of trafficking narcotics after
entering Canada and had then sought to refuge status. Question is if he could obtain such
status. Immigration appeal tribunal – he couldn’t be granted refugee status b/c of UN
convention on status of refugees. Immigration act incorporates provisions of that
convention
ISSUE • Issue was exclusionary clause in that convention
HELD
59
REAS • Person guilty of acts contrary to purposes and principles of the Charter of the UN is not
admissible as refugee (can’t claim refugee status)
• what’s the meaning of contrary to purposes and principles
• Certified question – was it error of law to interpret that provision of convention as excluding
from refugee status individual guilty of serious narcotics offence

• Determining standard of review - Correctness
• One need to look at reasons of tribunal – court enters into its own analysis of statutory
underpinnings of decision
• International instruments interpretation (this case) – and applying rules of treaty interpretation
• P.771 – rules of interpretation
• One could look to preparatory work of treaty
• Each member state self prepares – discusses negotiations for treaty – one can look at
drafting history of treaty as well as handbook written up on determining refugee status
• 1)Approach was to first look what is purpose of convention as a whole and court in that
earlier decision was to assure basic human rights w/o discrimination
o Found in preamble to treaty - p 773 – incorporated into statute which indicates that one
of purposes is to uphold Canada’s humanitarian tradition w/ respect to persecuted
ppl
o Findings – overarching human rights objective is the purpose of convention
• 2)One has to look at disputed article within that context
o First article of convention determines who is eligible and excluded from obtaining
refugee status
• J looked at position French delegation brought forward as to drafting of statute – original
exclusionary clause dealt w/ war crimes – there was a previous treaty in which during war,
war crimes were identified – during course of war.
• French delegation was concerned w/ ensuring dictatorial regimes (persecuting ppl on
discriminatory basis – would also be pulled into this excluded class
• Concludes rationale of this section is that those persons responsible for persecution
should not benefit from convention designed to protect refugees by claiming refugee
status
• Many cases arise in cases of internal conflict – civil war
• Purpose of Article 1F(c) – to exclude those individuals responsible for serious,
sustained or systemic violations of fundamental human rights which amount to
persecution in a non-war setting [more serious than drug trafficking]

What acts are contrary to principles and purposes of UN and captured by that provision?
• Indicates para 66-67 – source UN declare certain matters to be contrary to its purposes:
declarations prohibiting torture, international terrorism – indications of source of matters
that are brought within umbrella of prohibition in treaty
• One can characterize these examples as violations of human rights that constitute prosecution
• Does trafficking and narcotics rise to that level of prohibited conduct?
• J concludes – it doesn’t, its not of the same nature as the other prohibited conduct
• Until the intl community makes clear its view that drug trafficking, in one form or another, is a
serious violation of fundamental human rights amounting to persecution, then there an be no
rationale for counting it among the grounds of exclusion.
• There are acts that fall in this exclusion but it’s not drug trafficking (i.e. UN explicitly
declared: enforced disappearance, torture and other cruel, inhuman or degrading
treatment)
• J reverses immigration appeal court and holds this person can’t be denied refugee status
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• Court addressed another provision of treaty - sending back a person who is resident in country
– to their country of origin b/c they pose threat to Canadian security. Matter should be
remanded back to tribunal and that inquiry under article 33 should take place
• Very careful sustained interpretation of statutory instruments that were at play – intl
convention and Immigration act provisions that incorporated by reference those
provisions of convention
RATIO • Until the intl community makes clear its view that drug trafficking, in one form or another, is a
serious violation of fundamental human rights amounting to persecution, then there an be no
rationale for counting it among the grounds of exclusion.
• Standard of review is correctness
NORTHROP GRUMMAN OVERSEAS SERVICES CORP V CANADA (AG), 2009, P. 780
FACTS • Post-Dunsmuir – applied correctness standard to a decision of the Canadian Intl Trade
Tribunal (CITT) on a jurisdictional issue
• Court revisited CITT’s interpretation of Canada’s intergovernmental AIT (agreement on
internal trade)
• This tribunal alternate dispute resolution mechanism to deal w/ procurement challenges
decision of gov
• Here – there was procurement of military equipment by gov
• What occurred – this company which was American – challenged procurement decision of
gov and came before CITT to make that challenge and it was granted standing to make that
standing
ISSUE • Question was if tribunal was correct – American company had standing
• Issue why it was question – Canada and USA hadn’t entered into agreement for use of
this alternative dispute resolution system
HELD
REAS Problems w/ AIT applying to non-Canadian suppliers
• If we allow this, Northtop Overseas would gain rights under AIT despite its gov (US) not being
a party to the AIT. Especially, here those rights were specifically excluded from agreements
signed by govts (NAFTA and WTO)
• No treaty agreement that would give access to American companies to the tribunal
• Access to accelerated alternative dispute resolution body is a concession that Canada
can offer to other countries but would want reciprocal concession in the other country.
Jurisdictions of the CITT and Fed Court
• CITT is statutory tribunal and access to it must be found in statutory instruments
• Statutory provisions provide that access to CITT is pursuant to specific trade
agreements negotiated by gov.
• Here, no such agreement.
• What’s open to company is ordinary JR application rather than CITT alternative dispute
resolution mechanism
• Had American company used its Canadian subsidiary to make original bid, it would have had
access to the CITT
RATIO • Standing before the CITT is determined by the agreements entered into by govs of suppliers
• Correctness standard.
STEWART V WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION, 2008, NBCA, P. 781
FACTS • Post-Dunsmuir decision of New Brunswick court of Appeal
• This appeal addresses the extent, if any, to which the definition of “accident” in the provincial
Worker’s Compensation Act (WCA) determines the interpretation of “accident” as the word
is defined in the federal Government Employees Compensation Act (GECA).
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• There was inter-delegation to provincial compensation Boards to implement that act and
handle claims under that act
• Case revolved around chronic stress arising over time at the workplace from continuing work
at the workplace
• Commission had determined that definition of “Accident” under fed legislation should mirror
the same under provincial legislation
• Commission denied applicant’s claim b/c incidents she complained of did not
constitute accident within the meaning of GECA (federal).
o She could only be eligible for the same benefits as were available pursuant to
the prov statutory scheme (WCA)
• There was NB jurisprudence that held gradual onset chronic stress wasn’t accident for
purposes of prov statute (not prov > not fed)
• This case before court of appeal – had to determine first what standard of review was
ISSUE
HELD
REAS Standard of Review
• No privative clause, appeal – standard should be correctness – in pre Dunsmuir case law –
made determination about the same issue and earlier jurisprudence held standard of review
was correctness
• Moreover, the Appeals Tribunal’s interpretation of the word “accident” rasises a question of
law
Interpretation of Accident as Defined in GECA
• Definition of accident in fed act – includes willful and intentional act not being act of employee
fortuitous event
• Does gradual onset chronic stress follow that definition – tribunal determined it didn’t b/c
definition of accident in NB act (WCA) excluded disablement caused by mental stress other
than as an acute reaction to a traumatic event
o Case D.W. – this court set out relevant factors to be considered in order to determine
whether a stress-related claim is compensable under the WCA. Court held that cases
of chronic or gradual onset stress, being cumulative in nature, did not qualify as a
traumatic event.
• In this case b/c of language of s 4(2) of GECA which states that “federal employees are
entitled to receive compensation at the same rate and under the same conditions as are
provided under the law of the province where the employee is usually employed”, the Appeals
Tribunal concluded that DW factors applied equally to this case.
• Disagrees.
• The only purpose of s 4(2) is to ensure the rates & conditions of compensation payable to
injured fed employees mirror the rates & conditions for other injured workers in NB once the
threshold of entitlement has been determined.
o i.e. same threshold to prove compensable injury
• Parliament did not intend to delegate the legislature of each province the right to
amend fed legislation by redefining “accident” in GECA.
• Para 11 – Cases from other provinces – in their own legislation provinces excluded claims for
gradual onset of chronic stress but Cromwell JA rejected their reasoning.
• Correct process:
o 1)Board must determine if fed worker suffered an accident pursuant to s 4(1) of fed
GECA
o 2)If eligible by GECA definition, worker then is entitled to file claim.
• Commission misinterpreted accident by merely stating it didn’t mirror prov act – sent back to
determine if chronic stress was accident for purposes of fed statute
RATIO • Correctness standard
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• Parliament did not intend to delegate the legislature of each province the right to
amend fed legislation
• Fed employees rights shouldn’t depend on where they work in country. Fed gov has min
standard provisions for fed employees and province shouldn’t determine them.
THE ESTABLISHMENT OF A SINGLE DEFERENTIAL STANDART
DUNSMUIR V NEW BRUNSWICK, 2008, P. 785

FACTS • Establishing single reasonableness standard and rationale for why they did that
ISSUE • what do we mean by reasonableness
HELD
REAS • 3 standards: correctness (no deference) – reasonableness simpliciter - patent
unreasonableness
• In Cupe – court held decision will of its enabling legislation will stand unless it is so patently
unreasonable that its construction cannot be rationally supported by relevant legislation &
demands court intervention
• Cupe introduced – patently unreasonable
• Prior to Cupe – JR followed preliminary question doctrine which inquired into whether tribunal
had erred in determining the scope of its jurisdiction – Cupe eliminated that
• “courts should not be alert to brand as jurisdictional and thus subject to broader curial review,
that which may be doubtfully so”
• Bibeault case – court put forward pragmatic and functional approach – very similar to standard
of review analysis articulated in Dunsmuir
• Southam introduced reasonableness simpliciter – if decision is reasonable – good. Difference
from another standard lies in immediacy or obviousness of the defect in the tribunal’s
decision.
• It was difficult to determine difference b/w 2
• Actual difference is illusory
• P. 788 – smaller font – court notes that it’s a complex legal concept – how do we determine/
identify an unreasonable decision
• Court articulates idea of deference – which we already seen in Cupe
• Picks up Cupe analysis and brings it forward
RATIO • 2 standards
• Both reasonless simpliciter and patent unreasonableness are based on the idea that there
might be multiple valid interpretations of a statutory provision or answers to a legal dispute and
that courts should not interfere where the tribunal’s decision is rationally supported.
• Reasonableness – reviewing courts cannot substitute their own appreciation of the appropriate
solution, but must rather determine if the outcome falls within “a range of possible, acceptable
outcomes which are defensible in respect of the facts & law. There might be more than 1
reasonable outcome. However, as long as the process and the outcome fit comfortably w/ the
principles of justification, transparency and intelligibility, it is not open to a reviewing court
to substitute its own view of a preferable outcome.
REASONABLENESS REVIEW
• Reasonableness is a deferential standard animated by the principle that underlies the development of 2
previous standards of reasonableness: certain questions that come before admin tribunals do not lend
themselves to one specific, particular result.
• A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating reasons and to outcomes.
• Use triple test in JR – one looks to justification, transparency, intelligibility of decision under JR
• Does decision fall within a range of possible acceptable outcomes?
63
o One should give to tribunals some leeway within this range of acceptable and rational outcomes
which are defensible in respect of the facts & the law
• We saw in Baker – generally no absolute obligation to give reasons by admin decision makers – one has to
make determination whether in circumstances reasons ought to be given
• David Dyzenhous – concept of deference as respect requires of the courts not submission but a
respectful attention to the reasons offered or which could be offered in support of a decision
• Imports respect for decision-making process and for adjudicative bodies engaged in decision making and
respect for determination of parliament to vest these admin bodies w/ their delegated powers
o Note – court gives deference to decision-makers when they are engaging in policy making or
where determination is fact, and where discretion has been granted to decision maker
o When it comes to questions of law – not as easy to say how to apply reasonableness standard
and there are disagreement b/w court as to whether or not to defer on questions of statutory
interpretation and questions of law
• Dunsmuir doesn’t provide specific guidance on how to apply reasonableness standards – one has to view
cases to understand how to go about doing that
• One need not be deferential to decision if standard of review is correctness
• Court will undertake its own analysis of the question and if court doesn’t agree w/ decision – it will
substitute it.
• 4 examples of types of decision making where standard would be correctness

CANADA (CITIZENSHIP AND IMMIGRATION) V KHOSA (2009), P. 791
FACTS • Person convicted of crim negligence causing death (street racing)
ISSUE
HELD
REAS • Reasonableness – Does outcome fall in range of possible acceptable outcomes (as per
Dunsmuir) in terms of facts and law
• As long as process and outcome fit comfortably within principles of justification transparency
and intelligibility – its not open to review in court – to substitute someone’s view
• Importance of decisions having reasons articulated to make though findings on justification,
transparency and intelligibility
• Dissent – J Fish – he reweighs evidence before tribunal and majority
• Majority held that its really not role of the court to re-weight evidence.
o Evidence was pertaining to whether or not Khosa showed sufficient remorse and what
was probability of reoffending and to what extent was there rehabilitation
• Majority held it was parliament’s decision to entrust IAD to decide if there were H&C
considerations
o gov trusted to appeal division of the tribunal
• Immigration appeal division – also divided on the question on facts
• Majority doubted that there was sufficient remorse showing by Kosa b/c of his denial that he
was street racing – there were indications sufficient of remorse.
• This is factual dispute that has to be resolved by IAD – applying immigration policy and
is not smth to be waived by courts
• The whole question of remorse, rehabilitation – was discussed by trial judge at sentencing
• This is the H&C grounds related not to a right but rather to a privilege – very different
holding from the court in Baker case which looked closely at impact of the failure to grant H&C
relief – impact on individual played much greater part than here
• Appeal was allowed and decision of IAD was restored b/c one had to allow tribunal have that
leeway to make determination within range of acceptable and rational outcomes
RATIO Reasonableness standard
CATALYST PAPER CORP V NORTH COWICHAN (DISTRICT) 2012, P. 794
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FACTS • Paper enterprise w/ several mills in BC – this mill was in North Cowichan – issue – property
tax – classified as industrial enterprise – was taxed on that basis
• Historically ratio b/w residential and industrial property was 1 to 3 but over time, NK expanded
exponentially, there was building of sub-divisions, population greatly increased as result
municipality had to provide infrastructure, roads, sewage, water, power, build schools &
hospitals – was becoming larger municipality and to accomplish all of that the counsel decided
it had to make changes to tax rates and it chose – it was concerned long term residence w/
fixed income – sought opportunity to hit Catalyst hard in re-assessing property tax so that ratio
became 1 to 20
• Catalyst says tax rates were grossly disproportionate. Received little municipal services
b/c it had its own water and sewage system. There was down turn in industry – Catalyst
decided to close mill or stay and pay high taxes – it chose to challenge the by-law that
municipality enacted – on basis of unreasonableness.
• Municipality had enacted bylaw which would provide for gradual equalization of tax raise over
a period of time
ISSUE • Question is what principles should guide review of bylaw
HELD
REAS JR of Municipal bylaws
• Parties agreed – standard of reasonableness applies. Question is whether bylaw is reasonable
having regard to PROCESS and whether it falls within a range of possible reasonable
outcomes.
• Parties differ in what the standard of reasonableness requires in the context of this case.
• What factors should court consider in determining what lies within the range of
possible outcomes?
o Catalyst – one should look at factors to determine if bylaw was reasonable –
consumption of municipal services that one receives – narrow group of objectives
o Municipality argued there were other social, economic, political considerations –
broader spectrum of objectives
• Fundamental question is the scope of power granted
• Need to look at pre-Dunsmuir cases – how courts reviewing municipal by-laws proceeded
• Case law suggests review of municipal bylaws must reflect the BROAD discretion prov
legislators have traditionally accorded to municipalities engaged in delegated legislation.
Municipalities passing bylaw fulfil a task that affects their WHOLE COMMUNITY and is
LEGISLATIVE in nature rather than adjudicative. Involve an array of social, economic,
political & other non-legal considerations.
• Court pointed out para 24 – there is a long history of deference on JR of municipal bylaws
– reach back to case over century ago Cruize and Johnston – tort – there was bylaw against
music making within 50 yards of residence – person complained – court upheld the bylaw
and indicated unless bylaw was totally unreasonable in the sense it was manifestly
unjust and enacted in bad faith – in which one could make finding of unreasonableness
• There should be deference to counsel who enacted by law
• Municipality here was operating under municipality act of BC – Community charter – it allows
setting of different tax rates
• Court held reasonableness is flexible and deferential standard varies w/ context and
nature of impugned admin act – previous cases are relevant
• Applicable test is: only if the bylaw is one no reasonable body informed by these
factors could have taken will the bylaw be set aside.
• There had been no regulation under municipality act – since 1984
• Argument Catalyst was making it wasn’t receiving any services in return for taxes it was paying
para 28
• Court says one doesn’t link those to - it’s a tax, not a fee

65
Was the Bylaw Unreasonable?
• In judging the reasonableness of a bylaw, it is appropriate to consider both PROCESS and the
content
• 1)Process
o This is legislative decision – there had to be reasons given for the bylaw – the reasons
of bylaw are clear to everyone
o Court said this was legislative decision and not quasi-judicial – u could deduce reasons
just from discussion by counsel before enacting the bylaw
o Also there is a 5 year plan put forward
• 2)Content
o Seemed harsh
o There are countervailing considerations – impact on long-term fixed-income
residents that a precipitous hike in residential property taxes might produce
o It did provide for gradual easing of tax burden on catalysts.
Conclusion: bylaw does not constitute a decision that no reasonable elected municipal
council could have made.
RATIO • Application of reasonableness – enactment of by-laws by municipality
(One of issues author raised – decision in Dunsmuir – court used enactment of municipal
bylaws as example of true question of jurisdiction requiring correctness review and yet we
see here when it actually was dealing w/ case of reviewing municipal bylaw it applies standard of
reasonableness. Again we have phenomena – court doesn’t seem to identify any case as raising
a true question of jurisdiction)
• Applicable test is: only if the bylaw is one no reasonable body informed by these factors could
have taken will the bylaw be set aside.
• In judging the reasonableness of a bylaw, it is appropriate to consider both PROCESS and the
content
• Reference to case dealing w/ decision in Extradition case – Decision of minister who has discretion to
determine if to order extradition of can citizen charged w/ crim offences in another jurisdiction – US here.
Individual was arguing it was violation of s 6 charter right – enter, remain, leave Canada – court rejects this
argument as minister
• There was a s 1 limitation on right to remain in Canada
• Circumstances of crime, charges related
• Minister reached this decision – independent assessment of relevant factors – to order extradict

RELEVANCE OF FACTORS IN STANDARD OF REVIEW ANALYSIS, P. 802
DR Q V COLLEGE OF PHYSICIANS AND SURGEONS OF BRITISH COLUMBIA, 2003, P. 802
FACTS Case of sexual relationship b/w patient and doctor
ISSUE
HELD
REAS • Court did not use pragmatic & functional approach at all
• Evaluated the findings of fact (credibility) on the correctness standard instead of
reasonableness simpliciter
• Reviewing judged should have asked herself if the Committee’s assessment of credibility &
application of the standard of proof to the evidence was unreasonable, in the sense of not
being supported by any reasons > whether conclusion of Committee had some basis in
EVIDENCE
• Court delving into evidentiary findings of tribunal and trial judge
• In using deferential standard of reasonableness court will examine the way in which decision
maker dealt w/ facts and weighed evidence
66
• If there is “no doubt” that the evidence (letter) could be interpreted as evidence of a sexual
relationship, such an interpretation cannot be unreasonable
RATIO • Reviewing judge should have asked herself if the lower court’s assessment of facts (i.e.
credibility) & application of the standard of proof (i.e. reasonableness) to the evidence was
unreasonable, in the sense of not being supported by any reasons > whether conclusion of
Committee had some basis in EVIDENCE
REASONABLENESS REVIEW AND STATUTORY INTERPRETATION, P. 804 – 816
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, LOCAL 30 V IRVING PULP &
PAPER, LTD (2013)
FACTS • Both Majority and Dissent recognized standard to be reasonableness but how one goes
about applying – this is where they differ
• Case dealt w/ implementation by company mgmt of a unilateral rule calling for mandatory
random testing for alcohol abuse at the workplace and it was up to arbitrator to make
determination as to reasonableness of that rule – the workplace was unionized
• Rule was being made by the company under its managerial rights
ISSUE
HELD
MAJO J Abella – Majority
• Cases dealing w/ non-unionized situations won’t work
• Kind of test against which one could judge reasonability in current case
• Looked at arbitral jurisprudence
• Arbitrators had developed a concept that in deciding such cases they have to balance
interests that had to be examined: safety concerns at the workplace, balanced against
privacy rights of workers
• In working out that balance one could determine the reasonableness of a particular rule
• Para 31 – dangerousness of workplace is just beginning of inquiry and doesn’t justify particular
rule at issue
• Parties agreed workplace was dangerous and particular positions
• Para 38 – there were only 2 cases – where arbitrators upheld random alcohol testing
policy. In both there was a demonstrated general problem w/ alcohol abuse
• Same cases as dissent used to justify their decision striking down arbitrators decision

• It’s the random nature of testing which is in dispute – arbitral jurisprudence recognizes if you
have:
o 1)reasonable cause to think person is impaired while on duty
o 2)employee has undergone treatment for substance abuse
o 3)employee has been directly involved in a workplace accident or significant accident
• This is random testing of entire workforce is subject – in the particular regulation that Irving
introduced there would be 10% of workers in especially dangerous positions that raised issues
of safety.10% per year would be randomly tested
• You can subject that employee to testing to ensure they continue to abide by rule

• The board framed the question using the accepted KVP test balancing of interests
approach (risk-benefit analysis): was the benefit to the employer from the random
alcohol testing policy in this dangerous workplace proportional to the harm to
employee privacy?
(what are risks being addressed by employer and balance them against privacy concerns of
employees)
• No question J views evidence/findings on the fact and law (arbitrator’s consensus)
67
• 1)Risks that employer tried to address:
• Court looked at # of incidents: 8 documented alcohol-related incidents over a 15-year period –
this did not reflect a significant problem w/ workplace alcohol use
• Employer argued that deterence was a major benefit of random testing
• The only evidence supporting this view was expert witness – who had no info about that
particular workplace
• Board viewed that lack of positive results in almost 2 years of random testing was equally
consistent w/ opposite conclusion: that there was no workplace alcohol abuse to deter.
• 2)Employee right to privacy
• Board accepted Breathalyzer testing “effects a significant inroad” on privacy
• No distinction b/w drug, alcohol testing by urine, blood, or breath sample (as per case law)

• Expected safety gains minimal while violation of privacy is severe
• Employer didn’t demonstrate that problem w/ dangerousness or increased safety concerns
would justify random testing
• Violation of privacy of employees by subjecting them to random alcohol testing will be
deemed unreasonable UNLESS there is workplace problem such as alcohol drug abuse
AND employer must show they exhausted alternative means to deal w/ problem
• If this was not unilateral but negotiated agreement w/ union – may be different outcome. Since
in this case union and mgmt. did not agree to the policy.
• Arbitrator made reasonable decision and court ought not to intervene
DISSE J Rothstein and Moldaver
• Dissent – arbitrator departed from arbitral consensus in striking balance b/w competing
interests
• While majority – applied arbitrator consensus reasonably
• Dissent focused on 2 cases – separated them out from bulk of cases that deal generally w/ this
problem.
• para 83 – indicate that when looking at these cases – come up w/ 4 classes of cases:
o 1)Reasonable cause/post-incident drug testing
o 2)Reasonable cause/post-incident alcohol testing
o 3)Random drug testing
o 4)Random alcohol testing
• Took 2 cases as indicating arbitrator jurisprudence rather than Majority which said one
should look at entire body of jurisprudence in dealing w/ alcohol and drug abuse
• Para 97 – these cases show as long as there is some evidence of abuse, employer is
entitled to enact unilaterally its rule on random testing – threshold employer has to
meet is some evidence.
o In this case evidence – over 15 yrs period – 8 cases of alcohol abuse at workplace
• Secondly there was expert testimony – whole purpose of these rules of random testing is
deterrence
• Tribunal – rejected expert testimony – found it not persuasive – no evidence of lapses causally
linked to the abuse of alcohol (basically no evidence of link b/w drinking and accident)
• Minority – took view that by using that language – significant problem – and actual
experience – raised employer’s threshold that had to be met – from showing “some
evidence”
• There was some evidence – should have been determinative of outcome of this case
• If tribunal believed test should have been different (higher threshold) – then tribunal could have
departed but there is no such precedents and the tribunal didn’t provide reasons for such
departure
• No reasons why dissent thought to increase of onus placed on employer
• CONCLUSION (para 116) – case can not be said to fall in reasonable outcomes

68
Prof’s notes:
• Look at these 2 decisions – see that distinctions b/w dissent and majority – what comprises
arbitrator consensus (J Abella – entire body of jurisprudence;; Dissent – focusing on 2 specific
cases) Majority were content arbitrators have applied arbitrator consensus while minority –
departed from arbitrator consensus.
• By way of contrast authors make reference to decision we looked earlier – Norman Regional
Health v Manitoba association – there was argument made arbitrator failed to apply proper
standard in determining if there was an estoppel preventing union from insisting on its rights.
Decision there – approach court takes is much more organic – reasons were transparent,
intelligible and coherent
RATIO • Violation of privacy of employees by subjecting them to random alcohol testing will be deemed
unreasonable UNLESS there is workplace problem such as alcohol drug abuse AND
employer must show they exhausted alternative means to deal w/ problem
• Reasonableness standard
MCLEAN V BRITISH COLUMBIA (SECURITIES COMMISSION) 2013, P. 818

FACTS • In 2010 – executive director of BC securities commission advised McClain there would be
inquiry and they would be seeking order against her pursuant to s 161
• Misconduct – in 2001 or prior – ON Securities commission made an inquiry and commenced
proceedings against her in 2005 and in that process parties reached settlement in 2008
• She agreed to consent order – would bar her for 5 yrs in trading securities and 10 yrs from
acting as officer or director of company registered w/ Securities Commission
• B/c of constitutional system – reach of those orders stops at borders of ON and
securities matter are under prov jurisdiction – effectiveness of ban is compromised if
she trades in another jurisdiction
• That’s why BC took action
• Issue – was this action taken in timely period
ISSUE • issue was if there was reasonable construction of relevant statutory language
HELD
REAS • At issue is statutory interpretation of how s 159 and s 161(6)(d) operate together
o (s 159) Provisions of statute engaged – s 159 Limitation Period – proceedings under
Act – must not be commenced more than 6 years after date of events that gave rise to
proceedings
o (s 161 (6)(d))The commission or the executive director may, after providing an
opportunity to be heard, make an order under subsection (1) in respect of the person
(d) has agreed w/ a securities regulatory authority, a self regulatory body or an
exchange, in Canada or elsewhere, to be subject to sanctions, conditions,
restrictions or requirements.
• Events took place in 2001, she entered into settlement agreement w/ Commission in 2008 and
in 2010 BC Securities Commission went after her
• Commission took a different view of applicability of the limitations provision
• S 161 – allows commission to order a variety of orders similar to ON, prohibiting trading,
forcing them to resign from positions
o subsection 6 – commission can make such an order – if person has agreed w/
securities – regulatory authority – to be subject to sanctions
• BC commission took position that it was entitled by s 161.6d to take action b/c she had been
subject to sanctions and condition and restrictions in ON by that agreement
• McClain argued – this was just provision that provided evidence on which BC commission
could rely but event still was event of 2001 and limitation period governed it (hence expired)
• Commission – if this was so then it would severely restrict Commission from taking action b/c
of time it takes for these security commission investigations to come to conclusion – would
render this provision inapplicable in almost every circumstance
69
• J Moldaver – I conclude both interpretations are reasonable – thus he upheld the decision
of the commission – notes that language of statute is less than crystal clear
• McLean failed to show that Commission’s interpretation was unreasonable
RATIO • Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation
and the admin decision maker adopts a different interpretation, its interpretation will
necessarily be unreasonable – no degree of deference can justify its acceptance (Dunsmuir)
• In such cases the range of reasonable outcomes will necessarily be limited to a single
reasonable interpretation & the admin decision maker must adopt it.
CORRECTNESS REVIEW IN THE GUISE OF REASONABLNESS?

• Idea of Correctness review – being made under reasonableness

DUNSMUIR V NEW BRUNSWICK 2008, P. 822
FACTS • Under labour law statute – there is security of employment for employees – excludes anyone
who is in a managerial position and the employees have right to challenge any discharge for
disciplinary action – smth for just cause
• NB – there is extension of this security of employment to managerial employees – they are
entitled also not to be discharged except for just cause – u see this provision – in s 100 of
the Act
• S 97 – where adjudicator determined…employee discharged for cause – may substitute such
penalty as adjudicator seems reasonable – this provision was incorporated – to apply to
managerial employees
• This person took position as clerk of court and engaged in misconduct, was disciplined w/
warning letters – one letter said if he continued w/ any action (misconduct) then employer
would take further action – including discharge
• Was also provision in Civil Service Act (p 821) – subject …. Termination shall be governed by
ordinary rules of contract – at contract law employer is entitled to dismiss employee for
cause immediately but is also entitled to dismiss employee for any reason by giving notice or
pay in lieu of that notice – and that’s what employer did – they gave pay
• Dunsmuir grieved this
• Adjudicator – had to decide if there was discharge for cause – could adjudicator look behind
and make finding it was a case of discharge for cause
• Adjudicator declined to make a decision - applied a principal – officer of Crown is entitled
to a hearing before being dismissed – failed to give him hearing where he could have
explained himself
ISSUE
HELD
REAS • Adjudicator concluded that he could determine whether a discharge purportedly w notice or
pay in lieu of notice was in reality for cause
• Court states that adjudicator was unreasonable
• Interpretation of the law is always contextual – adjudicator was required to take into account
the legal context in which law applies. Here employment relationship b/w parties in this
case was governed by private law.
• Adjudicator misinterpreted legislation – its clear under s 20 of civil service act law of
contract governs and the gov chose to exercise its right to terminate w/o cause and that
adjudicator by looking into s 97 (interpreting s 97) – made a fundamental error
• His interpretation created a requirement for employer to show cause before dismissal
• No reasonable interpretation could lead to that result – decision does not fall within the
range of acceptable outcomes that are defensible in respect of the facts and law
• Combined effect of s 97 and s 100 – gives managerial employee right to make a grievance –
cannot under reasonable interpretation remove employers right under contract law
70
• Pointed out – he made finding that individual was entitled to notice in any event as officer of
Crown (will look at this later)
RATIO • Example of using reasonableness review – looks like application of correctness review
• There is only 1 reasonable interpretation of statute – distinction b/w reasonableness and
correctness
• Interpretation of the law is always contextual – adjudicator was required to take into account
the legal context in which law applies. I.e. here employment relationship b/w parties in this
case was governed by private law.
REASONABLENESS AND GIVING OF REASONS P. 824
NEWFOUNDLAND AND LABRADOR NURSES’ UNION V NEWFOUNDLAND AND LABRADOR (TREASURY

BOARD) 2011, P. 825
REAS • J Abella
• Adequacy of reasons is NOT a stand-alone basis for quashing a decision
• It is a more organic exercise – reasons must be read together w/ outcome and serve the
purpose of showing whether the result falls within a range of possible outcomes
• If the reasons allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable outcomes, the
Dunsmuir criteria are met
• Baker stands for the proposition that in certain circumstances, the duty of procedural
fairness will require some form of reasons for a decision.
• It did not say that reasons were always required and it did not say that the qualify of
reasons is a question of procedural justice and that subject to standard of correctness
(since breach of duty of procedural fairness is an error in law).
o I.e. notes of immigration officer were sufficient
• In this case, arbitration dealt w/ whether or not casual employees were entitled under the
collective agreement to accumulate time towards vacation entitlement
• Arbitration allows parties to the agreement to resolve disputes as quickly as possible knowing
that there is the relieving prospect not of JR but of negotiating a new collective agreement w/
different terms at the end of 2 or 3 yrs.
• This process would be paralyzed if arbitrators were expected to respond to every argument or
line of possible analysis.
• Issue doesn’t attract standard of review correctness but rather reasonableness
RATIO • Adequacy of reasons is not in itself a question of procedural fairness
ALBERTA (INFORMATION AND PRIVACY COMMISSION) V ALBERTA TEACHERS’ ASSOCIATION, 2011, P. 827
FACTS • Privacy commission found teachers’ association breached by revealing personal info of certain
teachers. Adjudicator appointed to deal w/ this case took longer than 90 days to reach
decision. There was provision in statute that allowed adjudicator to extent 90-day deadline to
complete investigation. Argument – since there is no evidence that adjudicator extended
deadline – lost jurisdiction and decision should be quashed
ISSUE
HELD
REAS • The court looks at that argument and rejects it
• Says that in some instances its possible to see that – the fact that adjudicator took longer than
90 days indicates she must have extended timeframe for making decision – particularly so
when one recognizes issue wasn’t raised before her
• If there was reasonable basis on which adjudicator could have decided – court ought
not to intervene
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• Reasonableness standard is given best effect if it provides justification for its decision
but its appropriate for court to consider reasons that could have been offered for that
particular decision
• Here person did not raise issue before tribunal and then mislead the tribunal in a way it
considers there is no necessity to give reasons
• In some cases, it may be that a reviewing court cannot adequately show deference to the
admin decision maker w/o first providing the decision maker the opportunity to give its own
reasons for the decision
• In such a case, even though there is an implied decision, the court may see fit to remit the
issue to tribunal HOWEVER should not be used often
• Remitting issue to the tribunal is not necessarily the appropriate option when it is asked to
review a tribunal’s implied decision on an issue that was not raised before the tribunal.
RATIO • Where there is no duty to give reasons or when only limited reasons are required, it is entirely
appropriate for courts to consider the reasons that could be offered for the decision when
conducting a reasonableness review.
• When a reasonable basis for the decision is apparent to the reviewing court, it will
generally be unnecessarily to remit the decision to the tribunal. Decision should be upheld as
reasonable.

Patent unreasonableness review - not important
• Has application in BC – b/c it preserves standard of patent unreasonableness in certain decisions
• Meaning of patent unreas will continue to develop as it’s a common law principal
• BC case – Sunter – whether or not setting of standard of review violated principal set out in Crevier – that
superior courts have jurisdiction to determine whether or not tribunal has stepped outside of authority
granted to them – acted in ultra vires manner
• Court held setting of standard (para 32) – is simply a mechanism to assist court in its determination of
whether or not tribunal acted within its jurisdiction
• Crevier principal isn’t violated by legislature’s setting standards of review

CH 15 JURISDICTION OF TRIBUNALS AND THE CONSTITUTION, P. 845
• Before charter courts made determinations as to constitutional status on division of powers and whether 1
level of gov had enacted legislation that was within authority of another gov
• Courts did that from beginning of the establishment in 19th century
• But no history of any other body of admin tribunal – making such a ruling
• When Charter came in there was new basis of challenging integrity of legislation and one could argue
legislation violates charter
• Post-charter era
• Early on the question arose as whether or not tribunals would have any jurisdiction to test
legislation against the charter (enabling legislation)
• The view of the commentators – this was important constitutional exercise that should be reserved to
courts b/c of their independence and security of tenure and admin tribunals don’t have the same status –
aren’t independent from other branches of gov

NOVA SCOTIA (WORKER’S COMPENSATION BOARD) V MARTIN; V LASEUR (2003), P. 845
FACTS • Appeals concern constitutional validity of s 10B of the Nova Scotia Worker’s Compensation Act
and Functional Restoration Program Regulations adopted under the Act
• These provisions exclude chronic pain from the purview of regular workers’ compensation
system and provide in lieu of benefits normally available to injured workers, a 4-week
Functional Restoration Program beyond which no further benefits are available
ISSUE Did Appeal Tribunal (set up to hear cases from the Board) had jurisdiction to decline to apply the
challenged provisions to the appellants on the ground that these provisions violate the Charter?
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HELD • Yes they had jurisdiction to decline provisions that violated Charter
• Nova Scotia Court of Appeal erred in concluding that the Appeals Tribunal did not have
jurisdiction to consider the constitutionality of the challenged
REAS Gonthier J
Jurisdiction of the Appeals Tribunal to Apply the Charter

1.The Policy Adopted by this Court in the Trilogy
• This court examined jurisdiction of admin tribunals to consider constitutional validity of
a provision of their enabling statute in trilogy: Douglas College, Cuddy Ckicks and
Tetrault-Gadoury
• In each case, court emphasized strong reasons to allow admin tribunals to make such
determinations and to refuse to apply a challenged provision found to violate the Constitution
• Why?
• 1)The Constitution is under s52(1) “the supreme law of Canada and any law that is
inconsistent w/ the provisions of the Constitution, is to the extent of the inconsistency, of no
force or effect”
o Courts may not apply invalid laws & the same obligation applies to all levels of gov
including admin organs of the state
• Canadians should be entitled to assert their rights & freedoms that the Constitution guarantees
them in the most accessible forum available, w/o the need for parallel proceedings before the
court (Douglas College)
• Consistency of a provision w/ the Constitution is a question of law arising under that
provision
• 2)Charter disputes do not take place in a vacuum – they require understanding of objectives of
legislative scheme, practical constraints and consequences of proposed constitutional
remedies.
• 3)Admin tribunal decisions based on the Charter are subject to JR on correctness
standard
• An error of law by admin tribunal interpreting the Constitution can always be reviewed
fully by a superior court
• Only by obtaining a formal declaration of invalidity by a court (based on provision’s violation of
Charter) can admin decision maker establish the general invalidity of legislative provision for all
future cases. Thus, allowing admin tribunals to decide Charter issues doesn’t undermine
the role of the courts as final arbiters of constitutionality in Canada.

2.The Applicable Law
• Approach to the jurisdiction of admin tribunals to subject legislative provisions to Charter
scrutiny:
TEST:
• 1)Whether admin tribunal has jurisdiction, explicit or implied, to decide questions of law
arising under the challenged provision
• a) Explicit jurisdiction must be found in the terms of the statutory grant of authority
• b) Implied must be discerned by looking at the statute as a whole
• Relevant factors include:
1) Statutory mandate of the tribunal at issue and whether deciding questions of law is
necessary to fulfil this mandate effectively
2) Interaction of the tribunal w/ other elements of the admin system
3) Whether tribunal is adjudicative in nature (this factor is not dispositive)
• ***note: Court disagreed w/ majority in Cooper that the adjudicative nature of the amdin
body is a necessary or even preponderant factor in the search of implicit jurisdiction
• Practical considerations cannot override a clear implication from the statute itself
o (i.e. do not have resources to decide Charter issues thus we were not authorized to do
so)
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• 2)If tribunal is found to have jurisdiction to decide questions of law arising under a legislative
provision, this power will be presumed to include jurisdiction to determine the constitutional
validity of the provision under the Charter
• 3)The party alleging that tribunal lacks jurisdiction to apply the Charter may rebut the
presumption by:
o a) pointing to an explicit withdrawal of authority to consider the Charter or
o b) convincing the court that an examination of the statutory scheme clearly leads to the
conclusion that the legislature intended to exclude the Charter (or a category of
questions that would include the Charter, such as constitutional questions generally)
from the scope of the questions of law to be addressed by the tribunal). Such
implication should generally arise form the statute itself, rather than from external
considerations.
3.Applicaton to the Facts
• 1)Even if s185(1) of the Act had no provided the Appeals Tribunal w/ explicit authority to decide
questions of law, an examination of the statutory scheme set out by the Act would lead to the
conclusion that is has implied authority to do so.
• a) Explicit – provisions in the Act give Board exclusive jurisdiction to inquire, hear, and
determine all questions of fact and law arising pursuant to the Act.
• Moreover, s 185(1) also confers upon the Appeals Tribunal jurisdiction to determine all
questions of law and fact arising
• b)Implicit – this analysis is not necessary but an examination of the statutory scheme as a
whole supports conclusion that the legislature intended the Appeals tribunal to decide
questions of law because:
• (1)To effectively fulfil its mandate its necessary for Appeals Tribunal to determine questions of
law – general practice of tribunal to make all sorts of determinations.
• Such implied jurisdiction extends beyond the Act itself, to other questions of statutory
interpretation or common law raised in the course of a dispute (i.e. law of contracts, evidence,
employment, conflicts of law etc)
• (2)Appeals Tribunal is fully adjudicative in nature.
• It’s independent of the Board – had its own rules of procedure – members had powers of public
inquiries (supine witnesses), punish for contempt, extent time limits - indicated it was
adjudicative body
• Statute only required chief commission be lawyer but in fact all commissions were lawyers
• No reasons to doubt that the Appeals Tribunal is an adjudicative body fully capable of deciding
Charter issues.
• (3)Attorney General can intervene in any proceedings involving a constitutional question. Such
intervention diminishes the relative disadvantage of admin tribunals as compared to courts by
relieving private parties or admin agencies from the burden of defending the validity of
legislation
Additional comments:
• Court of Appeal was wrong to take into consideration the backlog of cases that had
accumulated at the Appeals tribunal prior to 1999 amendments > not indicative that tribunal
can’t manage Charter cases
• As was mentioned, practical considerations can’t supplement the intention of the
legislature
• 3) Can presumption be rebutted by other provisions of the Act?
• The provisions (that one side argues rebuts presumption) do no more than allow the Board of
Directors to responds to issues of law and general policy raised by an appeal by adopting a
policy on the matter, enabling the Board to deal consistently w/ future similar cases
• Nothing in the act provides the kind of clear implication capable of rebutting the presumption
that the Appeals tribunal may consider the constitutionality of the act that it is called upon to
interpret and apply.
• Note: Standard would be correctness since its constitutional issue
74
RATIO • If an administrative tribunal has the power to consider questions of law, then it follows by the
operation of s 52(1) of the Constitution Act that it must be able to address constitutional issues,
including the constitutional validity of its enabling statute
• See the TEST – to see if admin tribunal has the jurisdiction to subject legislative provisions to
Charter scrutiny
• There are cases of explicit limitations on tribunals to entertain Charter or Constitutional questions – both in
BC under their admin tribunal’s act and also similar act in Alberta – list tribunals that have authority to apply
charter remedies and explicitly remove any such jurisdiction from other tribunals

TRANCHEMONTAGNE V ONTARIO (DIRECTOR, DISABILITY SUPPORT PROGRAM) 2006, SCC, P. 859-‐60
FACTS • At issue was a provision in ODSP act that made drug & alcohol addicts ineligible for income
support benefits and ON Social Benefits Tribunal’s authority to render this provision
inapplicable if the Tribunal found it to be discriminatory under ON Human Rights Code
• There was expressly removed tribunal’s authority to decide “the constitutional validity
of a provision of an Act of a regulation” but did not expressly refer to the ON Human
Rights Code
ISSUE Did exclusion nevertheless convey intention by legislature to remove the tribunal’s authority to
apply Human Rights Code?
HELD Majority – no;; Dissent - yes
REAS Majority
• Tribunal had necessary authority to consider Human Rights Code and render a
provision of its enabling legislation INAPPLICABLE, based on its jurisdiction over
questions of law
• Decision was aimed at making “fundamental” laws such as human rights legislation accessible
• Distinguished b/w authority to INVALIDATE legislation from authority TO NOT APPLY
Dissent
• The legislature revoked the SBT’s Charter jurisdiction b/c it did not want the SBT to declare any
part of the legislation inapplicable
• That is precisely what the effect could be of applying the Code
RATIO Sometimes there will be an explicit limitations on tribunals to entertain Charter or Constitutional
questions
CONSTITUTIONAL REMEDIES, P. 861
R V CONWAY (2010), SCC, P. 861

FACTS • Specific issue in this appeal is the remedial jurisdiction of the Ontario Review board under s
24(1) of the Charter
• 2 provisions in the Charter dealing w/ remedies: s 24(1) and s 24(2)
• s24(1) anyone whose charter rights have been infringed or denied may apply to a “court of
competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”
• s24(2) a court can exclude evidence obtained in violation of the Charter if its admission would
bring the administration of justice into disrepute
ISSUE
HELD
REAS How to determine if tribunal is of of competent jurisdiction?
Past Jurisprudence
• 1)Mills 3-part test case – for the purposes of s 24(1) of the Charter a court of competent
jurisdiction was a court w/: 1)jurisdiction over the person, 2)subject matter and 3)remedy
sought
75
• Weber case expanded the scope of Mills inquiry to cover admin tribunals. Admin tribunal
should decide all matters whose essential character falls within the tribunal’s specialized
statutory jurisdiction.
• First two steps of Mills test almost never been relied on – remain undefined
• Inquiry turns on whether the court or tribunal had jurisdiction to award the PARTICULAR
remedy sought under s 24(1)
• The inquiry is less of whether court is of competent jurisdiction but whether it is a court
of competent jurisdiction for the purposes of granting a particular remedy
• 2)Slaight case – while of no direct assistance on what constitutes a court of competent
jurisdiction – established that any exercise of statutory discretion must comply w/ the Charter
and its values.
• 3) The Cuddy Chicks Trilogy – these cases dealt w/ whether admin tribunal could decide
constitutionality of the provisions of their own statutory schemes and decline to apply them b/c
they are “of no force or effect” under s 52(1) of Constitution Act.
• Admin tribunals w/ authority to decide questions of law and whose Charter jurisdiction has not
been clearly withdrawn have the corresponding authority and duty to consider and apply the
Constitution, including the Charter, when answering those legal questions.

The Merger – New Approach
• Canadians should be allowed to assert their Charter rights in the most accessible forum
available, w/o the need for bifurcated proceedings b/w superior courts & admin tribunals.
• The denial of early access to remedies is a denial of an appropriate and just remedy
TEST:
• When a remedy is sought from admin tribunal under s24(1), the question is whether the
tribunal can grant remedies generally
• a) First question is whether admin tribunal has jurisdiction, explicit or implied, to decide
questions of law.
o If it does, and unless it is clearly demonstrated that the legislature intended to exclude
the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent
jurisdiction and can consider & apply the Charter and Charter remedies
• b)Can the tribunal grant the particular remedy sought, given the relevant statutory scheme.
Answering this question is necessarily an exercise in discerning legislative intent.
• What will always be at issue is whether the remedy sought is the kind of remedy that the
legislature intended would fit within the statutory framework of the particular tribunal.
o Relevant considerations: tribunal’s statutory mandate, structure and function
Application to this Case
• Person had been committed to a health care institution b/c he was found to be NCR
• He was seeking: 1)remedy absolute discharge and 2) order that the Board direct the institution
(CAMH) – he be provided w/ specific psychotherapy 3)where he was located – overlooking
construction sight – wanted to be moved
• Did board have jurisdiction to grant these remedies?
• Need to look at applicable legislation - Criminal Code s 672.54
• 1)He still was suffering from mental disorder and Board couldn’t give remedy
• As per legislation, absolute discharge can only be granted where one is no longer suffering
from mental disorder
• 2)As to particular course of treatment – CC prohibits the board from prescribing treatment
– function of the institution where person is incarcerated
• 3)Overlooking construction – could consider – doesn’t really raise fully Charter issue
• Provisions in CC indicate what the decision maker has to consider and here there was statute
provided: consider need to protect public, need to deal w/ patient’s mental condition, re-
integrating individual back into society and other needs
76
• Board had expertise, it had lawyer, psychiatrists, member of public – had experience in dealing
w/ these cases
• He was claiming charter violation of s 7
• Court found that board couldn’t grant some of remedies b/c of his continuing suffering from
mental disorder and made it clear tribunal is limited by intention expressed in legislation
RATIO New approach in deciding if a certain tribunal can grant requested Constitutional / Charter
remedies – standard of review would be correctness
• Admin tribunals w/ the power to decide questions of law have the authority to apply the Charter
and grant Charter remedies that are linked to matters property before them
OAK’S OR ADMIN LAW FRAMEWORK?

• Determination of constitutional validity of legislation or awarding constitutional remedy – correctness
• Review of admin decision in the exercise of discretion – violates Charter – what should be standard of
review?
• Here we are dealing w/ disagreements amongst judges as to how go about analyzing exercise of
discretion – challenged on Charter basis
• There is decision in which court applies Oak’s analysis (s 1), and then there is a view that one
should apply admin law framework – which is looking into reasonableness of the decision
• Court looked at this in several cases and not all of them are consistent with each other
• In early decision – Moltany (2006), p. 875-6 – majority took view one should apply a constitutional
framework (Oaks) but Abella disagreed – she took position that one should use standard of admin law
framework as to whether or not decision was reasonable

DORE V BARREAU DU QUEBEC (2012) SCC, P. 877
FACTS • Dore was a barrister and it was said to him by judge – derogatory comments – looked
ridiculous - didn’t make him look good in the eyes of his cl
• not first time he appeared in front of this judge
• Dore – wrote private letter called J arrogant, fundamentally unjust, chronic inability to master
any social skills, aggressive petty
• Asked Chief Justice to not assign this judge to his cases, made complaint to Judicial council
• They found J had misbehaved and reprimanded him
• Chief Justice sent this letter to barrister’s side and ordered to deal w/ lawyer
• Lawyer was suspended from practice for 21 days – he appealed that to appeal tribunal
• Initially he challenged provision of legislation under which disciplinary committee was acting
• When he went to tribunal he changed his approach and didn’t challenge actual piece of
legislation that gave mandate to disciplinary committee but challenged their action decision
– exercise of their discretion to make a decision
• Lawyer has to act w/ objectivity, moderation, dignity
ISSUE
HELD
REAS • J Abella – asks – does presence of Charter issue calls for replacement of admin law framework
for JR w/ constitutional law framework (i.e. Oaks test to determine if there is restriction)
o Is it a reasonable limit in a free and democratic society
• States that traditional s 1 analysis is a weird fit – decision itself isn’t law (not arguing
that law violates Charter right)
• We can recognize while formulaic application of Oakes test might not be workable,
balance and proportionality part of the test are applicable
• In admin framework – whether decision maker made a proper balance and if not it would
be unreasonable decision
o Decision interferes no more as necessary when dealing w/ restriction on Charter rights
• Court looked at how court dealt w/ cases where Charter issue arose
77
o Goes back to Baker as indicating (was exercise of discretion by Minister) – there court
held that it didn’t have to go through Charter analysis
• It is sufficient to see it as admin law case and apply admin law principles. If decision
maker took into account Charter values – decision could stand as reasonable
• There was academic criticism of decisions where court applied s 1 analysis – came largely
from the admin law scholars as opposed to constitutional law scholars
• Goes over Dunsmuir, concept of deference, Conway case
• There are 2 options – para 35:
• 1)Use Oakes test – undermines robust conception of admin law OR
• 2)Embrace admin law
• In admin law setting, Charter values applied to particular set of facts and set of parties –
whereas when law is being measured in Oakes – we are dealing w/ general principles of
application
• She reviews some examples – not strange one should argue test other than Oaks should be
used
• Para 37 – 39 – criminal case – also didn’t use Oaks test – dealt w issue of intent – didn’t go
through full Oakes test
• Civil law area – case Hill – common law defamation as restriction on freedom of expression –
there was balancing w/o reference to Oaks test
• Pepsi cola – secondary picketing – common law concept – court didn’t go w full oaks analysis
• But there are examples of taking into account Charter values, balancing them against
particular issue, ensuring there is proportionality b/w charter right and restriction on
charter right
TEST
• How does admin decision-maker apply Charter values in the exercise of statutory discretion?
He/she balances the Charter values w/ statutory objectives.
• 1)In effecting this balancing, decision-maker should first consider the statutory objectives (i.e.
public safety, intl obligations)
• 2)Then decision-maker should ask how the Charter value at issue will best be protected in view
of the statutory objectives. It requires him/her to balance the SEVERITY of the interference of
the Charter protection w/ the statutory objectives.
• This is where the role of JR for reasonableness aligns w/ the one applied in the Oakes context.
• Courts must accord some leeway to the legislator (RJR McDonald case – cigarette – in min
impairment under Oakes test - have to give leeway to legislature – has to be some measure
margin of appreciation which will fit in min impairment standard)
• As per Dunsmuir – reasonable is the decision which falls within a range of possible, acceptable
outcomes.
• On JR – question becomes whether, in assessing the impact of the relevant Charter protection
and given the nature of the decision & statutory and factual contexts, the decision reflects a
proportionate balancing of the Charter protections at play.
Application
• Uphold the decision of the disciplinary body as reasonable
• Discusses reach of lawyer’s right to be critical of justice system including judges – at the same
time one should have an ability to exercise freedom of speech right – one should do so within
framework of civility – general concept behind the code
• The most interesting statement para 68
RATIO • JR for reasonableness can align w/ Oakes test b/c it’s a proportionality process - how best do
you protect Charter values in view of statutory objectives of matter you are considering?
• On JR – question becomes whether, in assessing the impact of the relevant Charter protection
and given the nature of the decision & statutory and factual contexts, the decision reflects a
proportionate balancing of the Charter protections at play.
• Court moved away and there are decisions (PHS case – court used s 1 analysis)
78
• Loyola case – dealt w/ whether or not Minister of education had discretion to grant exception to school
from teaching or using provincial curriculum on ethics or religious culture – approach of secular viewpoint –
wanted to approach these issues from catholic viewpoint
• Court overturned that decision – majority used admin approach from Dore and Dissent used s 1 w/ min
impairment focus

THE USE AND MISUSE OF DISCRETION, P. 891
• Saw in Baker decision – key decision on exercises of discretion and standard of review to use in
determining what standard of review is
o Court indicated it wasn’t necessary to determine standard of review at that time – she
already made finding there had been breach of principles of procedural fairness
• Comments that author makes about relationship b/w courts and admin decision makers in terms of
exercise of discretion under enabling statute
• Historically common law judges were hostile to the growth of modern growth of state (enactment of social
welfare, income distribution schemes – modern admin state)
o Why were judges antagonistic? – viewed through lens of common law and right to contract in the
market and interference w/ property rights
• Modern era - shift in acceptance of the integrity of the administrative state and grants of discretion
are not inconsistent w/ democratic ideals
• Courts – exercise of discretion does entail some interference w/ freedom of contract and property – come
to accept activist role of state in our economy and in particular legislation that protects the rights of
members of public from bad capitalist behavior in the market
a) Workplace – employment relationship – highly regulated
b) Legislation dealing w/ consumer protection – another area
c) Environment – state regulation of conduct
d) Human rights – take a strict approach to exercise of any discretion that could be said to interfere w/
human rights charter rights

LAWS, RULES, AND DISCRETION, P. 893
• What is discretion?
o Discretion – legal power to choose a course of action from a range of permissible courses of
action/options – that would include not taking any action
• Language of enabling statute is important in determining the breadth of discretion granted to admin
decision maker
o When it is framed subjectively “in the minister’s opinion”, “minister may determine” or in terms of
public interest – then we see grant of discretion is going to be alive
o But there may be within legislation also legislative constraints on admin decision maker by
detaining factors to be taken into account in exercising discretion

• Indeterminacy of statutory language – call for interpretation – by admin actors who implement
legislation – have to resolve ambiguities, have implicit discretion to elaborate on statutory provisions
• P 818 – McClean v British Columbia (Securities Commission) case - had to integrate what seemed to be
contradictory provisions in statute as to timeframe in which securities commission can take action against
broker’s misconduct – this is just an example
• Regulatory provisions then are not self enforcing – there is always going to be an obligation or right to
interpret but there is always going to be legal limits
o courts have the ultimate constitutional obligation to determine limits of grant of discretion:
look at enabling legislation, common law principles, Constitution acts
• Exercises of discretion are not a ticket to act arbitrarily – one can only act in keeping w/ statutory
purposes/policy objectives of statute
79
• Legislation wrote down law and leaves to court to interpret and rubric is looking at parliamentary intent –
construct (parliament is made up of many individuals – may be different reasons why members of
parliament passed their votes in favour of legislation – case under common law rules of evidence)
• Hansard – record of debates – was inadmissible to assist the court to make determination of parliament
intent – a while ago

TRADITIONAL COMMON LAW DOCTRINE FOR REVIEW OF EXERCISE OF DISCRETION, P. 894
• Generally, there were series of misconduct which courts would correct:
a) one couldn’t exercise discretion in bad faith;;
b) sub-delegate power of exercising discretion to another entity;;
c) couldn’t make a general rule that will always be applicable;;
d) one could not be acting under dictate of another;;
e) could not act for improper purpose (we can see this in Duplessis case)
• P 895 – 6 – concept that there is a perspective/perception within which statute is intended to operate
• In Roncarelli v Duplessis case, Duplessis has directed the official (who was part of the liquor licensing
Chair Board) to withdraw liquor license from Roncarelli for improper reasons and the Chair of Board did
that and was acting under dictation for improper purpose
• (Prof’s side note: he was appointed to judiciary (after that))

THE SUBSUMING OF REVIEW OF DISCRETIONARY DECISIONS WITHIN THE STANDARD OF REVIEW
ANALYSIS, P. 896
• One has to take into account a variety of factors in interpreting legislation:
o look at statutory language;;
o framed in subjective or objective terms (specific or general)
o interests affected;;
o character of decision and decision-maker;;
• Language courts used in these cases is language of jurisdiction – ultra and intra vires
• Baker decision – what made it stand out as important decision that it moved away from these traditional
grounds for holding decision maker exercising discretion w/o jurisdiction and subsumed analyses under
standard of review analysis (pre-Dunsmuir) – pragmatic & functional approach
o Court did this b/c they said there is no bright line distinction b/w determining issues of law
and exercise of discretion.
o This lead the court to recognize explicitly that the pragmatic & functional approach was also
useful in determining the intensity with which reviewing courts should approach the many
decisions that fell in the “discretionary” realm b/w pure questions of law, at one extreme,
and completely unconstrained discretion, at the other extreme.

• Next case demonstrates that the court’s traditional use of the category of JURISDICTIONAL
questions is now of limited relevance to the review of discretionary decisions.

HALIFAX (REGIONAL MUNICIPALITY) V NOVA SCOTIA (HUMAN RIGHTS COMMISSION) 2012 SCC, P. 897
FACTS • Post-Dunsmuir case. Nova Scotia Supreme Court J set aside Commission’s decision to
establish a board of inquiry on the grounds that the commission exceeded its jurisdiction by
establishing the board
o Applied correctness standard of review b/c J thought the Commission made a
determination that “the complaint fell under the Human Rights Act” and thus was under
its jurisdiction
• NS Court of Appeal – permitted the board of inquiry. Rather than making a decision about its
jurisdiction, the Commission had “simply decide to advance the complaint to the next level by
establishing an independent Board of Inquiry
• SCC agreed w/ NS Court of Appeal
80
ISSUE
HELD
REAS • J Cromwell
• W/ respect to complaints, the commission plays role of gatekeeper & administrator rather
than adjudicative role
• Under s29 of the Act the Commission is required to instruct the Director (Of Human Rights) or
some other officer to inquire into & endeavor to effect a settlement of a complaint provided
believes that complaint exists and was made in writing
• Where a complaint is not settled or otherwise determined, the commission MAY appoint a
board of inquiry into it.
• Commission has broad discretion whether to take this step. It may do so if it is satisfied
that, having regard to all circumstances of the complaint, an inquiry thereinto is
warranted.
o Once appointed, board conducts a public hearing and decides matter
o Authorized to determine questions of fact and law to determine if there was
contravention of the Act
o Has power to remedy
o Appeal of questions of law exists
• Nature of this role has been recognized in the NS and other cases
• Discretionary decisions by admin tribunals, such as the commission’s referral decision in
issue here, are normally subject to JR on a reasonableness standard (Dunsmuir)
o Court overruled its earlier decision Bell – which held one had to make determination if
complaint fell within reach of statute before undertaking adjudicative action
• Chamber judges acted improperly by applying correctness standard
• J should not have asked if the commission had correctly determined that the complaint
was within the purview of the Act, but whether the Commission had reasonably
concluded, having regard to all the circumstances, an inquiry was warranted.
RATIO • There is a difference b/w jurisdictional determination and a discretionary decision
• Discretionary decisions by admin tribunals, such as the commission’s referral decision in
issue here, are normally subject to JR on a reasonableness standard (Dunsmuir)
SURESH V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) 2002 SCC, P. 900
FACTS • Pre-Dunsmuir. Had attained refugee status but turned out he was deemed by Minister as threat
to the national security and his presence detrimental to national interest
ISSUE
HELD
REAS • Challenge of dealing w/ terrorism and ensuring security of Canadian citizens – while one has to
deal w/ terrorism and issue of security one has to also be aware of fundamental values in a
democratic society and principles of fundamental justice
• Statute
o No one is granted admission to Canada– who is member of terrorism group –
participated in terrorist activities
o Those persons aren’t admissible except if they satisfied Minister that their admission
will not be detrimental to national interests
o Grant to Minister – he/she has to be satisfied - discretion
o Persons who were granted refugee status and are not to be removed from Canada to a
country where persons life will be threatened ….unless person is member of one of
these excluded classes (terrorism) and minister is of opinion person constitutes a
danger to security of Canada – discretion
Standard of Review
• When addressing standard of review court notes several issues raised in case
• Suresh was claiming he would be subject to torture if he returns to Sri Lanka
81
o 1)whether S himself /presence in Canada presents a danger to national security
o 2)whether S faces a substantial risk of torture if he is returned to Sri Lanka
• Need to determine what standard to apply to these 2 issues
• Court held (p. 902) – that it didn’t have to address them b/c it already made determination (he
was not accorded procedural fairness in determination of minister), however, will still address
(1) Danger to security of Canada
• Court emphasized (paras 28-9) – one should take a deferential standard of review
o It wasn’t for court to reweigh factors taken into account by Minister
• Court must interpret what intention of parliament was – that in looking to the intention of
parliament one uses the functional and pragmatic approach (as per Pushpanathan) – this is
pre-Dunsmuir
o Was there a right of appeal;; privative clause;; expertise b/w minister and courts in
making determination about national security;; purpose of provision and legislation in
general;; nature of the question (fact, law, mixed)
• 1)Court noted there was limited right of appeal (one can’t go forward to JR w/o leave of Fed
Court) indicative of deference
• 2)Expertise – clearly resides in Minister to deal w/ such issues – deference
• 3)There were humanitarian interests in balance that had to be taken into account;; danger to
can society vs a danger of torture – this is a matter of deference
• 4)Nature of case – factual and contextual – deference
• Notwithstanding that there was human rights issue being at stake – deferential standard
of review
• Para 34-38 - court referring back to Baker as setting down proper approach – indicates that
there are different institutional roles played by Parliament which establishes criteria and
procedures for deportation, role of Minister and role of Court to determine if Minister has acted
within or outside of constraints imposed by parliament
• Standard in any event to apply is patent unreasonableness
(2) Risk of Torture
• Court of appeal – this raised constitutional issue and standard of review had to be correctness
but this court took a different view
• It’s a fact driven inquiry:
o One had to consider person risk faced by S and consider human rights record of his
home state;;
o assurances from home state that he wouldn’t be tortured;;
o whether home state had control over its security forces;;
o there might be 3rd party stake which would accept S as refugee;;
o re-assess his initial claim to refugee statute
• These are all non-legal issues and its not for the court to re-weigh them – Minister already
took them into account and thus standard of review should be patent unreasonableness
• Courts’ role is to determine if relevant factors were considered and Minister complied w/
act and constitution
• Minister could order deportation despite possibility of torture – wouldn’t be violation of s 7 –
security of person
• This Decision was controversial – b/c court indicated there was possibility of deportation even if
he is tortured – this was contrary to intl treaty of which Canada is party – there is prohibition to
send person back to their home state
RATIO • SCC in Baker and Dunsmuir recognized that at least an occasional need for deference to
discretionary procedural choices and in this case SCC extended the deference doctrine to a
challenge based on an alleged failure to respect Charter rights and freedoms in the exercise of
ministerial discretion
• In reviewing ministerial decisions to deport under the Act, courts must accord deference to
those decisions. If the Minister has considered the correct factors, the courts should not
reweigh them. Provided decision is not patently unreasonable (unreasonable on its face,
82
unsupported by evidence, or vitiated by failure to consider the proper factors or apply the
appropriate procedures) it should be upheld.
A CLOSER LOOK AT THE PRE-‐BAKER REVIEW OF DISCRETIONARY DECISIONS
SHELL CANADA PRODUCTS LTD V VANCOUVER (CITY) 1994, SCR BC P. 906
FACTS • 5:4. How to go about reviewing actions of municipal government
• Within context of intl movement to sanction South Africa b/c of apartheid – movement to
boycott it.
• Municipality enacted 2 resolutions
• 1)municipality would not do business w/ Shell b/c it has business in SA
• 2)declare city to be Shell free zone until Shell divested from SA
• In Vancouver goods were shipped from it to SA – and this seemed violation of attempted
embargo of any trade w/ SA
ISSUE
HELD
REAS Dissent
• When we look at these resolutions - are they subject to JR – they are for sure – what standard
to take is the question? She said there is a choice
• Is city empowered to make resolutions of this nature?
• Vancouver Charter gave municipality authority to act for good rule and governance of city –
which implies dealing acting for welfare of citizens
• She says there is a choice:
o to take a narrow approach to municipal decision and act in interventionist way OR
o take broader deferential approach – that approach would be one that she
characterizes as one of benevolent construction of statute
• Gov has contractual power in market place and those types of decision are usually dealt at
private law and not subject to JR
• The approach dissent takes is court shouldn’t confine the municipalities powers that are
legislatively conferred
o Should NOT be able to substitute legislation views for the judiciary
o Should respect elected officials decisions - they have democratic responsibility and
appropriate vehicle for questioning them is ballot box
• Several factors that should be taken into account as to whether resolution fell into authority of
counsel
• 1)Courts must accord proper respect to the democratic responsibilities of elected municipal
officials and the rights of those who elect them.
• 2)Deference on part of courts aids municipal body’s’ function and avoids litigation, gives
municipalities authority
• 3)A generous approach to municipal powers is arguable more in keeping with the true nature of
modern municipalities. Municipal councils should be free to define for themselves, as
much as possible, the scope of their statutory authority
• 4)The broader, more deferential approach to judicial intervention in the decisions of
municipalities is more in keeping w/ the flexible, more deferential approach this court has
adopted in recent cases to the JR of admin agencies.
• Judicial intervention is warranted ONLY where a municipality’s exercise of its powers is
clearly ULTRA VIRES or where council has run afoul of one of the other accepted limited
on municipal power.
Whether the resolutions were beyond the city’s powers?
83
• BC Charter - Counsel may provide for good rule and governance of city and other provisions of
Charter indicated counsel had power to do things incidental and conducive to exercise of its
allocated powers
• First resolution not to do bus w/ shell – within the power – commerce and business
• Issue is solely of whether or not it had acted or its motive for that resolution was improper
motive
• Trying to determine motive of legislative body is difficult – Parliamentary intent is intent of
municipality is a construct and not for court to inquire into motives of members of counsel - one
assumes they acted for proper purpose
• Do motions/resolutions counsel enacted fall outside of area of city’s legislative concerns?
• Dissent disagrees w/ reach and meaning of phrase “provide for good rule and governance of
city” and enactment of measure that are beneficial to welfare of citizens
• Dissent thinks that the Welfare of citizens includes psychological welfare – civic spirit and
pride
• Counsel can foster community identity by approving or disapproving variety of conduct – this is
really a collective exercise of freedom of expression
• A number of considerations support this view:
• 1)Need to adopt a generous approach toward municipal legislation. Courts should not be quick
to substitute their views for those of elected council members.
• 2)Wording of the Vancouver Charter – supports a broad view of the city’s proper concerns. To
provide for the good rule and government of the city. These words are not restricted to the
provisions of services. Encompass expression of community concerns about what is happening
outside of the community boundaries.
• 3)Third consideration supporting a broader view of the City’s powers is the fact that many other
municipalities interpret their mandate in similar terms. 30 cities boycotted Shell.
Majority
• Municipal powers are 3 fold
o 1)Legislative functions which don’t attract principles of procedural fairness
o 2)Quasi-judicial – engage procedural fairness
o 3)Business – engage procedural fairness
• Municipality has to stay within its powers conferred by statute
• Agrees w dissent that municipal counsel is authorized to act for municipal purposes only
• The purpose is determined by reference to not only those that are expressly stated but
those that are compatible with the purpose and objects of the enabling statute = implied.
o Were resolutions passed for a municipal purpose?
• The purpose is defined in the preambles and operative parts of the resolutions. The explicit
purpose is to influence Shell to divest in SA by expressing moral outrage against apartheid.
• There is no mention as to how the good government, health or welfare of the city or its
citizens is affected or promoted thereby (either explicit or implied)
• The respondent was seeking to use its powers to do business “to affect matters in another part
of the world” a purpose which is directed at matters outside of the territorial limits of the city
o Is this in relation to a municipal purpose?
• Vancouver Charter – good rule and government of the city – hence places a territorial limit
on council’s jurisdiction
• Council may have regard for matter beyond its boundaries in exercising its powers but in so
doing any action taken must have as its purpose benefit of the citizens of the city
• Held – this had been exercise of power ultra vires of municipality’s jurisdiction
RATIO • Example of review on the traditional doctrine of using of discretion on improper purpose
• Note: these doctrines for review of abuse of discretionary power appear to overlap extensively
with the considerations of substantive review since Baker and Dunsmuir
UNREVIEWABLE DISCRETIONARY POWERS? P. 916
84
• Royal prerogative – not subject to statutory restriction, nor generally to common law restraints and
it ranges from matters relatively less important (granting of honours) to important – dissolving of parliament,
royal assent grant, power to make treaties (intl relations) – war peace recognition of foreign state
• Sorts of powers we associate w/ royal prerogative – outside of control of courts although courts have
jurisdiction to determine if there is an exercise of royal prerogative
• There has been some change in legislation – jurisprudence as to whether or not exercise of royal
prerogative can be subject to JR especially in terms of procedural fairness

• Comes out of the next case:
COUNCIL OF CIVIL SERVICE UNIONS V MINISTER FOR THE CIVIL SERVICE (1985), P 917
• The minister by order in council had made decision to disallow civil servants to continue to belong to trade
union – made for matters of national security
• This was done w/o notice to trade union or ppl affected
• In the past there was consultation w / trade unions
• Issue – was there legitimate expectations on the part of trade unions to be consulted?
• HELD: Agreed the Minister was exercising royal prerogative
• RATIO: there could be some review of courts as to justicability of Minister’s actions in terms of
procedural fairness

• One has to distinguish this case from cases that arise after charter b/c s 32 of it – who is bound by charter
– “this Charter applies to parliament and gov – in respect of all matters”
• That reference to gov opens up actions taken by Cabinet
• Some case – operation dismantle – cabinet agreed to testing of …smth on can territory and that was
challenged under s 7 security of person
• Court upheld legitimacy – one could subject decision of Cabinet to Charter analysis

• P. 918 – Black v Canada – he was nominated by British gov – would entitle him to sit w/ House of Lords –
had 2 citizenships
• British gov would only act if Can gov agreed to this conferral of benefit and Can gov – was opposed to him
getting this honour and recommended not to grant – British gov didn’t proceed w/ appointment and Black
sued Cretien for abuse of power
• ON Court of appeal – he had no right to appeal – this was exercise of crown prerogative – dismissed the
action
• As result Black gave up his Can citizenship
• There are mechanisms that we now use to try and ensure that there is widespread understanding of
exercise of discretion by gov officials – have idea of notice being given to public

PART 2 – PROCEDURE, P. 61
• Natural justice was concept that courts developed early on - 2 branches
o 1)right to be heard/participate
o 2)right to be heard by disinterested, unbiased and independent tribunal
• The law of procedure is in common law, there is also enabling statute that u are looking at as well as
general statutes addressing procedural fairness. Also, constitutional and quasi constitutional sources – can
the Bill of Rights and the Charter
• Also practices of agencies themselves as sources of determining procedural fairness
• Early doctrine – participation – English courts – procedural rights to what u are entitled in court: evidence,
cross-examine witnesses;; have notice of what is being held against you – all of nothing proposition –
either u had them or u had nothing
• What we see here as the jurisprudence develops that we have developed a concept of right to
procedural fairness in general sense the exact contours are dependent on decision
• Don’t need to make determination if decision maker was acting judicially or administratively
85
• P 70-74 summary of important sources
o 1)The enabling statute
o 2)Subordinate legislation administrative policy & practice
o 3)Policies & guidelines
o 4)General Procedural Statutes
o 5)Common Law Procedural Fairness
• We focus on common law entitlement to procedural fairness
• Baker case – fairness doctrine and procedural fairness – determining extent of procedural fairness to
which person is entitled:
o look to nature of decision and process that is being followed
o look at nature of the entire statutory scheme
o terms of enabling statute
o importance of decision to the individual (not only rights but interests);;
o legitimate expectations as to procedure followed in decision making;;
o choice of procedures that agencies themselves have developed

THE TRADITIONAL COMMON LAW DOCTRINE
• In Traditional common law doctrine – needed to show that decision maker was acting in judicial
fashion – example of functional approach that court takes notwithstanding it makes its initial formal
determination (looks functionally on circumstances to infer they were acting in judicial fashion and this
person was entitled to procedural fairness).

COOPER V BOARD OF WORKS FOR WANDSWORTH DISTRICT (1863), ENG CP, P. 75
FACTS • Cooper – failed to give notice to the Board of Works 7 days before beginning of construction.
Began building within 5 days. Stated that he gave notice but Board stated they didn’t receive it.
• Board tore down partially constructed structure w/o notice to Cooper. Cooper sued in
trespass. Case of a collateral attack on board decision as opposed to directly challenging its
decision
• Civil procedure – brought action for damages, trespass. Succeeded at trial
• Board obtained a rule nisi for a non-suit – order staying the effect of the trial decision – so it
can be challenged in court
ISSUE
HELD
REAS Erle J
• The Board ought to have given notice to the plaintiff and to have allowed him to be
heard
• The default in sending notice to the board, may be explained. The party may have intended to
conform to the law – through accident notice may have miscarried
• No harm would have happened to the board from hearing the party before demolishing
• Great damages for the party who has not been heard
• RULE: Statute is subject to qualification – it has been principle that no man shall be
deprived of his property w/o an opportunity to be heard
• Board argues that this principle is limited to JUDICIAL acts
• J stated that this principle has been applied widely
• However, J also stated that the appeal clause would evidently indicate that many exercises of
the power of district board would be in the nature of judicial proceedings b/c when they are
appealed from, the appellant and respondent are to be heard as parties and the matter is to be
decided at leas according to judicial forms.
Willes J
• Focuses on the fact that decision of board was subject to appeal – specific reference to
jurisdiction of appellate tribunal to hear and determine the issue
• He reads from that an obligation to act judicially and to grant natural justice
86
• J of several other judges – J Byles
• although there are no positive words in a statute requiring that the party shall be heard, yet the
justice of the common law will supply the omission of the legislature (famous phrase)
RATIO • Statute is subject to qualification – it has been principle that no man shall be deprived of his
property w/o an opportunity to be heard – limited to judicial acts (abolished later)
• Although there are no positive words in a statute requiring that the party shall be heard, yet the
justice of the common law will supply the omission of the legislature (famous phrase)

NOTES: p. 77
• When Byles J talked about the ability of the court to “supply the omission of the legislature” there are at
least 3 ways in which that statement might be viewed:
• 1)Indicated it could be understood there is legislative omission so that legislature would have included, had
it thought of the problem
• 2)Legislature has in fact spoken indirectly. To the extent that common law requires hearings in the face of
legislative silence whenever an individualized decision is taken affecting existing property rights, the silent
legislature is one that knows this common law and is impliedly assenting to or mandating judicial imposition
of procedures in such cases.
o Parliament’s intent is implicitly considered to understand what common law is and its affect on
statutory enactments
• 3)Concept of common law – Bill of Rights – an autonomous power of the judges, through their control of
the common law, to require a hearing unless the legislature speaks explicitly on the subject.

THE MODERN COMMON LAW DOCTRINE: DIMENSIONS & LIMITATIONS OF PROCEDURAL FAIRNESS, P. 78
• Cooper still was in a period when one had to determine if there was some judicial function and this
distinction – administrative v judicial was determinative if one had right to participate in decision
making process
• Court’s willingness to impose hearing requirements on decision-makers became contingent on how they
categorized the nature of their decision-making powers.
o If judicial and quasi-judicial functions – were required to comply w/ nature justice
o Admin function – ministers, public servants – not required
• This dichotomy was abolished in English decision p. 78 - Ridge v Baldwin (1964)
o Police Chief Constable has been dismissed w/o notice and giving reasons as to his dismissal and in
that decision – held that he was entitled to some procedural protection – ought to have been owed
explanation why he was dismissed;; given opportunity to speak to that decision
• Took 15 yrs before Canadian courts came to the same conclusion – within police sector – decision in
Nickolson – 1979 – banner year for significant changes to admin law in can jurisprudence - also year when
SCC issued its decision in Cupe

NICHOLSON V HALDIMAND-‐NORFOLK REGIONAL POLICE COMMISSIONERS (1979), P. 78
FACTS • Nicholson served as a constable for 15 months and was discharged by the board w/o being
given an opportunity to make submissions. If served 18 months – he would entitled a hearing
as per s 27 of the Policy Act
ISSUE
HELD
REAS Laskin J Split 5:4
• There was no recognition in lower court’s judges’ reasons, that there may be a common law
duty to act fairly, falling short of a requirement of a hearing or duty to act judicially
• Although the appellant can’t claim procedural protections afforded to constable w/ more than
18 months’ service, he cannot be denied any protection
• He should be treated fairly not arbitrarily
• In the sphere of quasi-judicial the rules of natural justice run, and in the administrative
or executive field there is a general duty of fairness
87
• Classification of statutory functions as judicial, quasi-judicial or admin is often difficult and to
endow some w/ procedural protection while denying others would work injustice when the
results of statutory decisions raise the same serious consequences for those adversely
affected, regardless of the classification of the function in question
• In this case, consequences to the appellant are serious
• Appellant should have been told why his service was no longer required and given opportunity
whether orally or in written to respond.
• Status in office deserves this minimal protection, however, brief the period for which the
office is held
Dissent
• His status was that of a constable on probation
• This decision was purely administrative
• Board was under no duty to explain why his services were no longer required, or to give him
chance to be heard – no legal duty to the appellant
RATIO • In the sphere of quasi-judicial the rules of natural justice run, and in the administrative or
executive field there is a general duty of fairness
• After this case, the distinction b/w judicial, quasi-judicial and administrative became less
important and was found to be of little utility since both the duty to act fairly and the duty to act
judicially have their roots in the same general principles of natural justice.
• Note: outcome of this case is N was given a full oral hearing where evidence was presented. Had right to
examine witnesses. There were 11 grounds they gave that he had done improperly. He was given
damages. Award was reinstatement w/ damages
• He tried to argue he was seniority officer but that claim failed in case that followed

ELABORATIONS OF MODERN DOCTRINE
• Following Nickolson, Canadian procedural fairness case law was marked by the gradual expansion of the
duty of fairness to areas of admin decision-making, including the decisions of correctional authorities
affecting the rights, privileges & interests of inmates that had previously escaped scrutiny for compliance w/
rules of natural justice.

KNIGHT V INDIAN HEAD SCHOOL DIVISION NO 19 (1990) SCR, P. 84
FACTS • Director of education who was head of contractual term w/ school board and was negotiating
for renewal of that term
• These negotiations fell through over length of his continuing term of employment
• After these negotiations fell through – board dismissed him from his employment
• This case gave an occasion for court to re-look at nature of duty of fairness
• Court was split – whether or not this person was entitled to fairness – 4:3 – dissent – he wasn’t
entitled to any procedural fairness while majority said that he was
• Appeal b/c Sask Court of Appeal made founding he was entitled to procedural fairness and
wasn’t given it
o Majority – he was given procedural fairness (and was entitled to)
o Dissent – not entitled to
ISSUE
HELD
REAS Nature of Duty of Fairness p 85
• TEST:
• There may be a general right to procedural fairness, autonomous of the operation of any
statute, depending on consideration of 3 factors which have been held by this court to be
determinative of the existence of such a right.
88
• What factors to take into account when determining if there is duty of fairness: 1)looking at
nature of decision 2)relationship b/w decision maker and person affected 3)impact on that
individual
• If consideration of these factors indicates that person was entitled to procedural fairness, then
the terms of the contract of employment, must be considered to determine if this entitlement is
either limited or excluded entirely.
• Duty of fairness does not depend on doctrines of employment law, but stems from the fact that
employer is a PUBLIC body whose powers are derived from statute, powers that must be
exercised according to rules of admin law.
(a)Nature of the Decision
• Its no longer necessary to distinguish b/w judicial, quasi-judicial and administrative decisions
• The concept of procedural fairness is a freestanding common law right – not dependent on a
statute – this idea of procedural fairness
• However, NOT ALL admin bodies are under a duty to act fairly
• Over years legislatures transferred to admin bodies some of the duties they traditionally
performed
o Decisions of a LEGISLATIVE and GENERAL NATURE can be distinguished from
acts of a more ADMIN and SPECIFIC NATURE, which do not entail such duty
• Finality of decision has to be considered.
o Decisions of a preliminary nature might not attract entitlement to procedural fairness as
opposed to decisions of final nature
• This case: decision made by appellant Board was of a final and specific nature directed at
terminating the employment of respondent.
• Decision to dismiss could possibly entail the existence of duty to act fairly
(b)Relationship b/w Employer & Employee
• Case Ridge v Baldwin classified possible employment relationships:
• 1)Master-servant relationship – no duty to act fairly when terminating employment
• 2)The office held at pleasure – no duty since employer can terminate employee for no other
reason than his displeasure
• 3)The office from which one cannot be removed except for cause – duty to act fairly
exists
• These categories can be altered through employment contract or gov legislation
• Finds this is case that goes beyond master-servant relationship – has statutory flavor that
attracts some level of procedural fairness
• Board falls into 2nd category – office held at pleasure
• Case Nicholson – no longer automatically excludes procedural fairness for employment
falling into 2nd category
• To grant such a right would not import into termination decision the necessity to show just
cause, but would only require admin body to give office holder reasons for dismissal &
opportunity to be heard
• In both situations of an office held at pleasure and office from which one can be dismissed only
for cause, one of purposes of imposition on the admin body of a duty to act fairly is the same –
enabling employee to try to change the employer’s mind about the dismissal.
(c)The Impact of the Decision on the Employee
• The impact is serious for individual losing his employment
• Courts recognized that the loss of employment against the office holder’s will is a significant
decision that could justify imposing duty to act fairly on admin decision making body
Balancing of factors:
• On the whole, the nature of the decision, the relationship existing b/w the respondent and the
appellant and the impact on the respondent lead to the conclusion that there was a general
duty to act fairly

89
Education Act / Employment Contract
• Looks at education act to see if it says anything about rules of natural justice – silent on the
whole question and similarly employment K had nothing to say about fairness

The Content of the Duty to act fairly
• Points out that like principles of natural justice concept of procedural fairness is
variable and its content will depend on specific context of case
• Quotes another English judge – difficult to define fairness
• Concept is subjective
• Closeness of the admin process to the judicial process should indicate how much of
those governing principles should be imported into the realm of admin decision making
• At Minimum – as per Court of Appeal – he should have had notice of reasons he was being let
go and opportunity to be head
• Question is if board complied w/ those basic procedural fairness duties – trial J and Court of
Appeal differed on this
• Trial J – b/c of negotiations he was well aware of what issues were and was given chance to
put forward his position and couldn’t complain that he hadn’t been granted procedural fairness
• Sask disagreed – he wasn’t formally advised as to reasons of his dismissal
• SCC – reversed court of appeal – agreed w/ trial J – the very effect he was engaged in
negotiations – indicated he had a chance to participate in decision making process –
knew what issue was and issue that led to his dismissal
• He also had chance to put forward his claim – he attended meeting of board where resolution
was made
• Duty to act fairly in this relationship was met
• Importance of decision has to do w/ earlier discussion about nature of duty of fairness
Dissent
• He was not entitled to duty of procedural fairness
• Employer could terminate employment w/o cause and w/o giving any reason. It would be
inconsistent to require employer to give a reason for terminating in order to comply w/ the
dictates of procedural fairness
• If a duty of fairness arises it would be of a limited nature – allow employee to state his case and
employer would be bound to consider any representations made by employee
• However, this would be in exceptional cases where statute, regulations or contractual
provisions expressly or by necessary implication confer upon the employee a right to be heard
or to make representation
RATIO • This case extended fairness beyond domain of office-holders dismissed only for cause. In
dismissing its director, who held his office at pleasure, a school board was bound by the duty of
fairness
• This case also set down dividing lines of a new threshold for the duty of fairness based on the
distinction b/w decisions of a legislative and general nature and acts of an admin and specific
nature (starting point of discussion of common law threshold)
• This case embraced the conception of procedural fairness as a free-standing common
law right, thus giving up the need to find in the decision-maker’s enabling statute any provision
that expressly or impliedly conferred on the office-holder a right to be heard.
• TEST how to determine if duty to act fairly existed

Notes: p. 93
• Dunsmuir Exception – in Dunsmuir we looked at standard of review – also revolved around dismissal of
public servant – on merits court altered jurisprudence on dismissal of public servants by articulating view
that relationship was contractually based and that the matter of dismissal of public servant should be
addressed through private law of employment rather than public law theory of procedural fairness
• P. 97 – authors remind us of Baker synthesis
90
• Determining if procedural entitlement is at issue and what one should take into account in determining level
of procedural safeguard
• Case of impact of constitutional and quasi-constitution – Can bill of rights – p. 99 – it is recognized s2
(every law of Canada unless expressly declared….)
• Quebec – procedural fairness – charter
• Important: There can be specific exclusions in some elements of fairness – similar to what occurred in
Nickolson
• Constitutional safeguards can also override statutory limitations on rights of procedural fairness

THRESHOLDS, P. 101
• Sources of procedural fairness: thresholds (at what point is one entitled to PF)?
• Thresholds – at what point in making of administrative decision does the right to procedural fairness kick
in?
• What are administrative actions which are below the threshold and thus do not attract the rights to
procedural fairness?
Fairness vs Natural Justice
• J Dickson discussion – “it is wrong, in my view, to regard natural justice & fairness as distinct and
separate standards and to seek to define the procedural content of each. In Nicholson, J spoke of a notion
of fairness involving something less than the procedural protection of the traditional natural justice.
Fairness involves compliance w/ only some of the principles of natural justice. The content of the principles
of natural justice and fairness in application to the individual cases will vary according to the circumstances
of each case” (it’s a spectrum)

Judicial vs Quasi-Judicial, p. 104
• Minister of National Revenue v Coopers & Lybrand (1979) case – indicating factors (non-exhaustive) to
determine if act of administrative decision maker is judicial or quasi-judicial
o 1)Is there anything in the language in which the function is conferred or in the general context in which it is
exercised which suggests that a hearing is contemplated before decision is reached?
o 2)Does the decision or order directly or indirectly affect the rights and obligations of the persons?
o 3)Is the adversary (opponent) process involved?
o 4)Is there an obligation to apply substantive rules to many individual cases rather than, for example, the
obligation to implement social & economic policy in a broad sense?

Decisions of a Legislative and a General Nature
• There is no duty of procedural fairness where the decision is legislative in nature (can only challenge on
Charter grounds, not admin law) or general in nature or where its of preliminary nature according to Knight
case
• The cases that follow this section of the book explore these concepts (what do we mean by legislative,
general in nature, preliminary action by the state etc)
• Examples:
• p. 106 Wells v Newfoundland case – he had been appointed as community rep at public utility board –
successor government made legislative changes, got rid of that position (consumer representative) he lost
position. He claimed he wasn’t treated fairly and should have had opportunity to speak up and defend his
position.
o Court held we are dealing here w/ legislative decision – it’s not subject to judicial fairness – its
enactment of legislature which happens to have impact upon him
• Similarly, p. 106-7 – Authorson v Canada (Attorney General), 2003 SCC – decision where gov enacted
legislation that deprived veterans of interest on their pension money – limited their entitlement to particular
time period and extinguished them prior to commencement of period
o Court held: This was a clear exercise of legislation by parliament and one could only
challenge it on Charter grounds – are always open on all of these cases as basis for challenging
decision
91
• Clear act by the legislature itself is legislative in nature
• Other acts by public officials are also legislative in nature
• Enactment of bylaws is a legislative act. But there are other factors that have to be considered that would
have altered legislative nature of bylaw

Cabinet and Cabinet Appeals

CANADA (ATTORNEY GENERAL) V INUIT TAPIRISAT OF CANADA (1980), P. 107
• Question asked in this case – does the concept of acting legislatively apply to Cabinet
• Throughout decision Cabinet is often referred to as Governor General in counsel and province as
Lieutenant General in counsel
• Should hearing rights be denied b/c of the character of the decision-maker, nature of the decision or both?
FACTS • Provisions of the National Transportation Act – CRTC (the Canadian Radio-television and
Telecommunications Commission) can regulate rates for utilities and that included Bell Canada
• Bell sought and was granted an increase in rates by Commission
• Inuit had appeared before Commission as intervener and made submissions that increase in
rates should not be granted until better services are provided in northern communities –
dismissed
• Inuit had a choice– 1)appeal Commission’s decision to Fed Court of Appeal and there it would
be entitled to a hearing before fed court 2)File petition directly to Cabinet
• Inuit appealed to Cabinet.
• Cabinet appeals but is not acting in appellant fashion
• s 64.1 of the National Transportation Act – “the Governor in Council may at any time, in his
DISCRETION, vary or rescind order, decision, rule, or regulation of the Commission” – very
broad power invested in Cabinet
• Bell made submissions and those were supplied to Inuit but also Commission through
department made submissions and department itself summarized situation and made
recommendation to Cabinet not to grant petition and that recommendation were not given to
Inuit. Inuit – claimed that they ought to have been given notice of those materials and
their content and opportunity to reply and that wasn’t provided
• Fed court – there was a reasonable cause of action here and fairness was owed to Inuit and
had not been granted
ISSUE
HELD Decision of Fed court was reversed by SCC
REAS J Estee
• Is there duty of natural justice or fairness owed to Inuit by Governor in Counsel under this
s64(1) of the National Transportations Act?
• One has to look at the statute to determine its statutory intent
• Here statute delegates to the Commission the power to set rates, and secondarily delegates to
the Cabinet the power to vary and determine rates – there are no guidelines provided in
subordinate legislation nor by legislation itself (broad power)
• S64(1) indicated that the Governor in Council may “of his motion” vary, rescind any rule or
order of the Commission - this is the legislative action in its purest form where the subject
matter is the fixing of rates for a public utility such as a telephone system
• Admits that in the past Cabinet used to hear petitioners – but demographics of country
changed since that era – population then was a fraction of that of today
• There is no requirement that cabinet to hear petitioners
• P 111 – cites from English decision J Laskin also cited in Nickolson – Bates case – I do not
know of any implied right to be consulted
• If decision is legislative in nature, no hearing requirement is mandated
• Implies that here it may be difficult to distinguish b/w administrative and legislative actions.
92
• Where the executive branch has been assigned a function performed in the past by the
Legislature itself and where the subject-matter is not an individual concern or a right
unique to the petitioner or appellant - Legislative actions do not attract principles of
procedural fairness.
• The reviewing court must fall back upon the basic jurisdictional supervisory role and in so doing
construe the statute to determine if the Governor in Council has performed its functions within
the boundary of the parliamentary grant and in accordance w/ the terms of the parliamentary
mandate.
RATIO • This case has been condemned by commentators – withstood test of time and is used in
subsequent decisions
• Recognizing that at common law there is no right to procedural fairness in exercise of a
legislative function.
• One has to bear in mind, Parliament can always enact legislation that imposes duty of fairness
– have to look at the statute under which proceeding is taken and make that determination
whether Cabinet has either expressly or impliedly given to the individual affected by some
legislative act the right to participate in the process
• Here, there was a regulatory matter that was not of individual concern and no duty created
under the act – thus there was no duty for notice of consultation
CANADIAN DOCTORS FOR REFUGEE CARE V CANADA (ATTORNEY GENERAL) 2014, P. 112
FACTS • Lack of entitlement to participate in enactment of subordinate legislation
• Here there was order in Counsel – Fed gov changed and limited health insurance coverage
for refugees – transfer to province’s responsibility for healthcare of refugees
• Was challenged
• Cases proceeded on Charter grounds and there they were successful – struck down as
violation of s 12 – cruel and unusual punishment and s 15 – equality rights
ISSUE
HELD There was no duty of fairness
REAS • No duty of fairness is owed by the gov in the exercise of its legislative functions
• While certain decisions of the Governor in Council can attract a duty of fairness, this is no the
case.
• Whether a duty to observe natural justice of procedural fairness exists in a given case
depends on a number of factors: subject matter of the decision in question, consequences of
the decision to those affected, number of ppl involved – as per Baker
• Procedural rights do not arise where the executive decision at issue is a “legislative and
general” one rather than one that is “administrative and specific” – Wells v Newfoundland
• Example of administrative and specific – decision by Governor in Council to revoke
person’s citizenship, a matter of obvious direct and immediate concern to him
• In contrast, no duty of fairness was owed in Inuit case – it was regulatory matter that was not
of individual concern
• Here, there are many various stakeholders – general in nature – no duty owed
RATIO Difference b/w legislative and general (no duty of fairness owed) vs administrative and specific

• Another example – Australian case – FAI Insurance v Winneke p. 114-5 – there was licensee who held
license for 20 yrs, was annually renewed. License wasn’t renewed – although company may not have been
entitled to license initially, once they relied upon it – there was a duty of fairness owed to allow it to put
forward its position

Bylaws and Rulemaking
HOMEX REALTY V WYOMING (1980), ONT P. 116
93
FACTS • Development of sub-divisions. Planning act for approval – there is development plan – they
have to undertake cost of servicing lots to ensure infrastructure is there (sewage, water) to get
their plan registered. Previous developer had plan registered w/ municipality (Wyoming) and
had undertaken to service lots
• Its sold its interest to Homex and in selling interest this undertaking it has given to city didn’t
flow w/ the contract
• Homex now didn’t have right to develop lands and didn’t have obligation to provide services
and would fall on rate payers – the cost and purchasers of property.
• Municipality decided to enter into negations w/ Homex to try to force it to provide
services and didn’t succeed
• Municipality de-registered the plan – prevented now Homex from developing lands
• Enacted 2 bylaws to de-register the land
• This was done w/o notice to Homex, had no chance to give its position before enactment
of bylaws
• What was nature of this bylaws?
• One could argue successfully before ON court of appeal – these were legislative actions –
public interest in the outcome – all citizens had interest in outcome
ISSUE
HELD
REAS • SCC – dismissed appeal – there was disagreed w/ ON Court of appeal – this type of bylaw
wasn’t exercised in the nature of legislative act

Dickson Dissent
• Cited Cooper case – before a public body can limit or abrogate the property rights of
citizens, it must first give the individuals concerned an opportunity to be heard
• The fact there was public interest was not sufficient to derogate right to a hearing that Homex
had – rejected On court of Appeal analysis
• Spoke about spectrum of procedural safeguards - rather than try to classify what action is, one
should look at nature of the function to determine whether or not procedural fairness is
owed
• Point of these bylaws – the fact they were applicable only to Homex – is such that it attracts
principles of procedural fairness.
• Why was he dissent?
• When u look at p 118 – he agrees that this is not exercise of legislative function but quasi-
judicial and therefore Homex is entitled to be heard
• When we looked at remedies, one of elements of JR remedies – is that they are issued at
discretion of the court (u might not be entitled to the remedy even though u have met the basic
pre-requisites)
• In this case court was very critical of shark practices of Homex – held its practices disentitled it
to the remedy it was seeking and thus its appeal failed
• J Dickson – would go along w/ that analysis b/c question of whether court should exercise
discretion against homex was never argued before the court
RATIO

NOTES:

Policy Making
• P. 119 – 121 – idea of concept of Policy Making
• Broadly based policy decisions that have a diffuse impact that affects broad spectrum of public –
do not attract principles of procedural fairness
• I.e. school board cases
94
• In one case Bezaire v Windsor Roman Catholic Separate School Board (1992) – school board had enacted
policy that before there was to be a closing of a school there had to be a consultation w/ public – to give
public opportunity to put forward their views
• School board failed to comply w/ these guidelines - public consultation before decision was made
• Court struck down that decision b/c school board failed to comply w/ procedural process that it had
enacted under these guidelines
• In contrast w/ decision of ON Court of appeal in case of Vanderkloet– 1985 ON Court of appeal – also had
provision of set of guidelines – entitling consulting process. This wasn’t case of school closure but had
impact on public - Determine reallocation of student body.
• Court held – broad segment of population is affected but it wasn’t foreclosure and no common law
right to procedural fairness – simply a case of re-allocating students to send them to different
schools

CANADIAN ASSOCIATION OF REGULATED IMPORTERS V CANADA (ATTORNEY GENERAL) 1993, FED COURT
OF APPEAL P. 121
FACTS • At issue is a ministerial decision changing the quota distribution system for the importation of
hatching eggs & chicks, a change that significantly affected historical importers.
• Importers claimed that they had not been consulted
ISSUE Was there a duty to consult?
HELD
REAS Linden J – Majority
• Generally, the rules of natural justice are not applicable to legislative or policy decisions
• Principles of natural justice are not applicable in the setting of quota policy although they may
be to individual decisions respecting grants of quotas
• Here exercise is essentially a legislative or policy matter, with which Courts do not
normally interfere
o Any remedy that may be available would be political
• Minister was not required to give notice and opportunity to be heard
Reed J - Dissent
• J Reed of Fed court – found to contrary – her decision didn’t stand – she was of view there was
limited # of ppl affected, their place in the market would be affected by introduction of quota
scheme
• Should have attracted principles of natural justice
RATIO

Decisions Affecting Rights, Privileges, or Interests
RE WEBB AND ONTARIO HOUSING CORPORATION (1978), P. 126
FACTS • Issued shortly after Nickolson case. ON Housing Corporation provides subsidized housing to
low income ppl and they provided such housing to Webb – she was a tenant w/ her children
(unmanageable and caused a lot of problems in the building). Corporation – sent her warning
letters about their behavior and consequences – she didn’t control them – would be termination
of lease and she would be evicted
ISSUE
HELD
REAS • Court citing Nickolson – courts are increasingly applying the test of procedural fairness to
administrative actors
• As per Inuit case – what is in issue is what is appropriate to require of a particular authority in
the way of procedure, given the nature of the authority, the nature of its power &
consequences of the exercise of that power to the individuals affected and this case added –
the nature of the relationship b/w the authority and the individuals affected
• This case deals w/ loss of tenancy and it is going to have a significant impact on tenant and her
family
95
• Said there was duty of fairness owed to her – to get her chance to answer to complaints
• OHC in exercising its power of termination and thereby depriving the appellant of the benefit of
the lease, was required, under the circumstances, to treat the appellant fairly by telling her of
the complaints or case against her and giving her an opportunity, if she wished, to make an
answer to those complaints
• She had been given warning letters
• Despite her being illiterate, Court was of view her children could read to her
• Apart from warning letters there was social worker involved in attempting to assist her in
controlling behaviours of her children – also warned her she was in danger of losing her tenant
status
• On Facts court held procedural fairness had been given to her
• She knew of the complaints and nature of them, was given opportunity to respond
RATIO • Inuit case – what is in issue is what is appropriate to require of a particular authority in the way
of procedure, given the nature of the authority, the nature of its power & consequences of the
exercise of that power to the individuals affected and this case added – the nature of the
relationship b/w the authority and the individuals affected

NOTES:
• Webb case - the question of whether or not u are entitled to procedural fairness and extent – when you are
dealing w/ grant of benefits – is area that is still being explored
• Authors ask p. 129 – what about grants to cultural associations, places in law school, members in judiciary
– at what point does some entitlement to procedural safeguards kick in
• Admissions to law school – have variety of requirements – apart from following them, there is no further
duty of fairness
• But it could be there are situations where granting of benefit as opposed to exercise of right might
give rise to some entitlement to procedural fairness

HUTFIELD V BOARD OF FORT SASKATCHEWAN GENERAL HOSPITAL DISTRICT NO98 (1986), P. 130
FACTS • Hutfield was medical practitioner, seeking hospital privileges at hospital in Sask – he would
need those privileges to be able to attend to his patients who were hospitalized. There was
process for granting of those hospital privileges – there was bylaw that was enacted by
hospital – to be appointed to medical staff – one had the applications to be made and would be
sent to College of physicians and – and would be sent to chief of medical staff. Considered to
appointments committee who would make recommendation to board of hospital
• In first application – college of physicians had approved him as medical practitioner but the
board on recommendation of admissions appointments committee refused to grant privileges
• He re-filed his application and board didn’t send application to college of physicians – already
had their recommended approval
• Committee gave adverse recommendation to the court – there were no written reasons
given, appeal hadn’t been granted
• Application was denied w/ no reasons given
• He sought certiorari to quash decision and mandamus to compel a reconsideration
ISSUE
HELD
REAS • Here court discusses distinction b/w case of modification or extinguishment of existing rights
and interests and scope of JR and expected standard of procedural fairness in case of an
application for a permission or consent not previously enjoyed
• Summary of principles:
• 1)the recognition that it is not only rights but interests that the courts will protect
• 2)recognition that certiorari is available not only where there is a duty to act judicially but also
where there is a duty to act fairly
96
• 3)recognition that where there is a duty to act fairly, the content of that duty will vary from one
situation to another
• 4)see book p 131
• Three additional elements:
• 1) S 11(3) of the by-laws requires Committee to investigate credentials, training, suitability for
appointment, reference from college of physicians and that indicates – in order to fulfil those
functions indicative of some requirement of procedural safeguard
• 2)The nature of the specific matters that the by-laws require to be investigated by the
Committee. Where a refusal of a license casts a slur on the applicant’s reputation or fin
stability the duty to act fairly may well require that the body should offer an opportunity for a
hearing
• 3)The general interests of the public may be affected
• Here, his reputation is impacted
• General interest of public is engaged – refusal to grant permission, hospital privileges will have
impact on his ability to fully service his patients
• Court concludes that the Board even though had no duty to grant hospital privileges per
se, it did have duty to consider his application properly and give him opportunity to put
forward his case. So they granted application
• Matter was remitted to hospital board for re-consideration
RATIO • If body’s decision will modify, extinguish or affect a right or interest of a person when that
person’s rights or interests are being considered and decided upon in a way that is in law or for
practical purposes final or final subject to appeal, must adhere to procedural standards, the
precise nature of which will depend upon the nature and extent of the right or interest

NOTES:
• Contrast that – to another case
• Kahin v Canada (minister of Transport, Infrastructure and Communities), 2010 case – p 133 – position at
Vancouver airport - applied – required security clearance
• Transport Canada refused to grant security clearance – needed more info on years he spent as refugee
in South Africa which were not provided – security clearance was denied w/o hearing
• Court takes position there was no entitlement to the job – no legitimate expectation he would be
granted security clearance, no evidence decision was based on some erroneous finding of fact
• Denied him the relief he sought
• Why is that Doctor in previous case is granted b/c profession at stake and here person is looking for job
and got it and is facing loss of his employment b/c of action of minister – why was he not entitled to some
level of procedural fairness
• The importance of the decision – impact on individual – is clearly a factor that drives some of these
decisions
• Lazarov v Secretary of State of Canada (1973) Case – made application for citizenship but was denied
based on confidential RCMP report b/c he was involved in illegal activity.
• Fed court of appeal held obtaining of citizenship is of such importance to individual that it should
entitled person to some procedural protection. If minister refuses to grant citizenship, should know
what case is against him and have chance to answer
• Lukaj v Canada (2013) – CIC introduced new policy – on accepting sponsorship applications – department
put a suspension on new applications. Lukaj wanted to sponsor his parents and grandparents – he sought
notice of the new policy prior to its implementation.
• There court noted that he wasn’t alone in being affected, there was unknown class of individuals
who might want to sponsor
• More importantly there is very little duty of fairness owed to visa applicants – no legitimate expectation
by Lukaj that his application would be received….b/c he was aware of change in process
• P. 135 – Guay v Lafleur (1965) case – leading case in pre-Nickolson – investigation under income tax act
– one sought right to participate in the examination of witnesses and to cross examine them
97
• Court held this was purely administrative function and didn’t attract procedural fairness. No good law – to
deny entitlement to procedural fairness
• English courts tend to be ahead of Can courts – reference to Lord Denning decision (he was Master of
Rodes – he determined makeup of panels of court to hear cases)
• P. 136 – Re Pergamon Press case – investigation into fin affairs of press and Denning held that
repercussions that could follow from this investigation could lead to civil action, crim prosecution –
this attracted a duty of fairness – had to be given chance to correct evidence

RE ABEL AND ADVISORY REVIEW BOARD (1979), P. 137
FACTS • Case in ON which is classic case on investigative and recommendatory powers
• Advisory review board – was established under mental health act – would review annually
patients who were confined to psychiatric institutions under warrant of Lieutenant Governor in
counsel b/c they were found not guilty by reason of insanity.
• Application would be made if there was to be a hearing
• Advocate might be able to appear and call witnesses and there would be info sought from
institution that the review board would consider and would use in making its recommendations
to cabinet as to continued incarceration of these individuals or their release
• What Abel sought here was disclosure of reports from the institution – and the board
refused w/o reason to provide disclosure
• This came up for JR
ISSUE
HELD
REAS • Pointed out Cabinet isn’t bound by recommendations but reality is that they are so closely
connected that it would be highly unusual for them not to accept recommendation of advisory
review board
• These reports that review board could receive would have some influence on their forming of
recommendations
• Impact on individual is dramatic
• Court took position that there was an obligation not to reveal reports but it was
recognized reports may be detrimental both to institution and applicant himself
• But the board’s refusal to even consider whether to release reports or redacted version of
them was fatal
• Court held – that they consider whether or not to release reports
• Matter was sent back to them to consider these requests on proper grounds
RATIO
LEGITIMATE EXPECTATION CONCEPT

• Concept – was developed in English courts and had both procedural and substantive elements
• In Canada – legitimate expectation concept is limited to procedural matters
• One of 5 Baker factors in determining level of procedural fairness to which person is entitled
o 1)nature of decision and process
o 2)nature of statutory scheme and the wording of statute
o 3)impact of decision on individual
o 4)choice of procedures made by admin body
§ 5)legitimate expectation of person to some process
• Woven in these cases is a question as to whether or not legitimate expectation is a distinct factor – that
could be determined on its own or within context of 5 baker factors
• Courts have different views on this
• SCC – for analytical purposes one generally separates out issue of legitimate expectation when looking at
entitlement to procedural fairness
98
• Approaches to this question in English jurisprudence – Liverpool Taxi Fleet Operator’s Association case
(1970) – decision of Lord Denning – undertaking to consult w/ drivers before making changes to issuance
of licenses. Practice of holding such hearings and thus legitimate expectation
• Old St Boniface Residents Assn Inc case – SCC 1990 – Sopinka - court will supply the omission of
legislature based on undertaking given by a public official – where party was led to believe where
his/her rights won’t be affected w/o consultation

REFERENCE RE CANADA ASSISTANCE PLAN (BC) (1991), P. 149
FACTS • There had been agreement made b/w fed and prov – to share costs of social assistance and
welfare benefits. According to agreement it would remain in force subject to unilateral
termination on a year’s notice. Fed introduced act that would reduce fed contribution to those
costs and thus would transfer costs onto provinces. No notice was given by fed gov.
ISSUE • Did the doctrine of reasonable expectation apply in those circumstances?
HELD No
REAS • There is no support in Can and English cases for the position that the doctrine of legitimate
expectations can create substantive rights
• Rules governing procedural fairness do not apply to a body exercising purely
legislative functions
• A purely ministerial discretion, on broad grounds of public policy, will typically afford
the individual no procedural protection and any attack upon such a decision will have
to be founded upon abuse of discretion. Similarly, public bodies exercising legislative
functions may not be amenable to judicial supervision
• Court held that legitimate expectation doctrine didn’t apply to legislative action.
• Provinces argued that gov in drafting and then presenting the Bill for enactment, that action
should have been caught by agreement they made – they had legitimate expectation gov
would advise them before going down that path
• Parliamentary gov would be paralyzed if the doctrine of legitimate expectation could be
applied to prevent the gov from introducing legislation in Parliament. Such expectations
might be created by statements during an election campaign. The business of gov would be
stalled while the application of the doctrine and its effect was argued out in the courts.
Moreover, it is fundamental to our system of gov that a gov is not bound by the undertakings of
its predecessor.
RATIO • Emphasizing that legitimate expectation doctrine goes to process and not substance and this
is distinct from English practice where it has both
• Legitimate expectation doctrine didn’t apply to legislative action

NOTES:
• Question then is asked – this may be true for legislative process itself but what about the actions of
Cabinet in promulgating subordinate legislation and regulation process – is that an exercise of a
legislative function or not?

APOTEX INC V CANADA (ATTORNEY GENERAL) (2000), P. 154
FACTS • Applicability of the doctrine of legitimate expectation to the power of Cabinet to promulgate
regulations was raised > delegated legislation.
• A manufacturer of generic drugs which sought permission of Minister to manufacture a certain
drug and another drug manufacturer held a patent.
• Fed cabinet made regulation under patent that would enable the patent holder to seek a
ruling by minister prohibiting from issuing such permission to generic drug manufacturer (from
issuing that before expiry of the patent)
• Fed minister said in a speech to the industrial association that he wouldn’t enact such a ruling
w/o consultation w/ the generic drug manufacturers. He would consult before enacting such a
regulation
99
• He didn’t end up consulting. Regulation came into effect and Apotex sought to have it quashed
before the Fed court of appeal
ISSUE
HELD
REAS • J agreed that the regulation made that court didn’t have jurisdiction to question cabinet
members as to whether or not they were aware of this undertaking that one minister made in
his speech and b/c of that they dismissed application made by applicant
• J – indicated that this issue should be left to determine
J Evans - Dissent
• But J Evans who in obiter raised this question as to whether or not Cabinet should be
viewed as engaging in legislative action
• His view – ought not to be considered legislative, in theory an undertaking made by cabinet
should consult before enacting legislation – should be subject to review b/c of legitimate
expectation
• To get to that decision he reviewed earlier cases – also practice in other common law
jurisdictions which do apply to legitimate expectation doctrine – exercise of rule making powers
by cabinet
• English cases to the same effect and other academic commentators – David Mallan –
enactment of regulations should be subject to legitimate expectation doctrine
• Para 126 – conclusion: there is no binding authority to contrary so I conclude doctrine
of legitimate expectations applies to principle to delegated legislative powers so as to
create participatory rights when none would otherwise arise, provided that honouring
the expectation would not breach some other legal duty, or unduly delay the enactment
of regulations for which there was a demonstrably urgent need.
• Its irrelevant if duty to consult arises from statute or doctrine
• A court may set aside or declare invalid, subordinate legislation made in breach of a legal duty
to consult
• On the facts of this case, legitimate expectation did not arise
RATIO

NOTES:
• There is decision of SCC in which J Binnie referred to this dispute b/w members of the fed court of appeal
on this question.
• He references this question and says matter has not been determined yet
• Hasn’t been a case since SCC looked at this issue

CANADA (ATTORNEY GENERAL) V MAVI (2011), P. 160
FACTS • We are dealing w/ sponsorship program for immigration – Citizen of Canada can sponsor
immigrants – they enter into agreement w/ gov that they would be be responsible for cost and
any social assistance that immigrant may require – undertaking fin burden to this sponsorship
program
• ON gov took action against this sponsor to recover monies b/c immigrants he sponsored
where collecting social assistance under ON legislation.
• Question is if he was owed some level of procedural fairness before gov undertook that action
• Terms of the agreement that they entered into are given to us under legislation then enforce
– 2 provisions on p 161-162
• Minister may choose not to take action to recover money from sponsor or sponsor spouse
– who has defaulted in situation of abuse or in other appropriate circumstances….also the
Minister and the province may recover the debt when circumstances have changed.
o Question was if that language was undertaking by gov
ISSUE
HELD
100
REAS • J Binnie found that that language was undertaking by gov that implicit in concept situation
of abuse or for any other appropriate circumstances implied there had to be some type
of hearing that they fell in that exception to collect on debt – debt wasn’t forgiven its just gov
had discretion not to enforce it
• Concluded that the gov couldn’t proceed w/o notice to the individual and opportunity for
sponsor to make a case for deferral of collection on their debt
• He laid out for us the process that should be followed – see p. 160
o File certificate of default
o Gov should notify the sponsor
o Give him/her opportunity to explain in writing of their fin circumstances that would
militate against immediate collection of monies
o Should notify sponsor of gov’s decision
• BUT reasons wouldn’t have to be given – it was sufficient for the individual to have been given
chance to address their ability to pay
• That part of decision should remind us of smth we saw in Baker – that there isn’t under theory
of procedural fairness an obligation in all circumstances to give reasons.
The Doctrine of Legitimate Expectations
• Where a gov official makes representations within the scope of his/her authority to an
individual about an administrative process that the gov will follow, and the representations
said to give rise to the legitimate expectation are clear, unambiguous and unqualified, the
gov may be held to its word, provided the representations are procedural in nature and do
not conflict w/ the decision maker’s statutory duty. Proof of reliance is not a requisite – Mount
Sinai case (note: representations are not legislative in nature)
• “Clear, unambiguous and unqualified” representations can be analogized to the law of
contract. Gov representations will be considered sufficiently precise for purposes of the
doctrine of legitimate expectations if, had they been made in the context of a private law
contract, they would be sufficiently certain to be capable of enforcement.
• Given the legitimate expectations created by the wording of these undertakings – it is not open
to the bureaucracy to proceed w/o notice and w/o permitting sponsors to make a case for
deferral or other modification of enforcement procedures.
RATIO

• In a great # of social benefits schemes – issue as to what extent reasons be given – certainly during the
initial stage

AGRAIRA V CANADA (PUBLIC SAFETY & EMERGENCY PREPAREDNESS) (2013), P. 164
FACTS • Came to Canada, had been member of terrorist organization and to be admissible into Canada
he had to satisfy Minister that his presence would not be detrimental to the national interest
• Minister – made finding and gave reasons – determined that this person posed threat to
national security and thus his admission to Canada would be contrary to national interests
• There was series of guidelines that Minister had to follow in coming to this decision and
guidelines he enumerated various factors that Minister had to take into account
• He took position that the minister ought to have looked at H&C grounds for granting him
admission
• Guidelines among factors did reference H&C grounds for granting a license to remain in
Canada
• But there was nothing said in the decision if H&C were considered
• Was there legitimate expectation that such would be contained in reasons, that such
was taken into account – H&C grounds
ISSUE
HELD
101
REAS • Doctrine of legitimate expectation was given a strong foundation in Baker, where it was held to
be a factor to be applied in determining what is required by the common law duty of fairness
• If a public authority made representations about the procedure it will follow in making a
particular decision or if it has consistently adhered to certain procedural practices in the past in
making such a decision, the scope of the duty of procedural fairness owed to the affected
person will be broader than it otherwise would have been.
• Likewise, if representations w/ respect to a substantive result have been made to an
individual, the duty owed to him by the public authority in terms of procedures it must follow
before making a contrary decision will be onerous
• Brown and Evans – on doctrine of legitimate expectations:
o legitimate expectation arises from some conduct of the decision-maker or some other
relevant actor. It may result from an official practice or assurance that certain
procedures will be followed as part of the decision-making process, or that a positive
decision can be anticipated.
• Emphasized that it can’t give rise to substantive rights (can’t guarantee you the
outcome you desire) but only to procedural remedies
• Makes finding that guidelines were very clear, unambiguous, unqualified (as per previous
case) and gave a procedural framework and thus there was legitimate expectation that
guidelines would be followed, available and represent comprehensive procedure – dealing w/
applications for relief from minister
• P 166 – process that the followed under these guidelines and there is 8 step procedure –
throughout that process applicant has right to put forward its case and any docs and
recommendation is also sent to applicant who can make further submissions
• Decision is exercise of discretion by minister – all of that was forwarded to minister – p. 167 –
reviewed and considered evidence in its entirety – legitimate expectation was fulfilled
• How do we know he looked at H&C – judicial branch trusts executive branch of gov in
exercising its authority properly
RATIO
MOUNT SINAI HOSPITAL CENTER V QUEBEC (MINISTER OF HEALTH & SOCIAL SERVICES) 2001, P. 168
FACTS • Hospital case – comes out of Quebec
• MS they had been operating w/o a proper license – converted from long term to short term
case facility and wanted to regulate its status and have proper license issued.
• Entered into agreement w/ minister that if MS relocated its premises then proper
license would be issued
• Went through fundraising campaign and relocated
• Several years passed. New Minister refused to issue that license b/c it would entail greater
outlay of monies
• Hospital sought mandamus order directing Minister to issue license based on that undertaking
being given
• Was unsuccessful at first trial
• Quebec court of appeal reversed and held hospital was entitled to license
• This was example of public law estoppel – all elements require estoppel to be made
• Q gov appealed to SCC
ISSUE
HELD
REAS • J – took position it wasn’t necessary to rely on doctrine of legitimate expectation or public law
estoppel
• Undertaking was actually enforceable decision since previous Minister made this decision and
it could not be overturned by new Minister
J Binnie (CONCURRING)
• concurred but he in his reasons discussed the doctrine of legitimate expectation
102
• Posed a question as to whether or not it could affect substantive entitlements
• He reviewed British law where doctrine of legitimate expectation compels not only
procedural but substantive outcomes
• Many of English cases are relevant b/c they deal w/ procedural governance but those that go
to substantive outcome – that level of interference by courts in the functioning of gov was
available to courts only under the Charter
• Question is doctrine of legitimate expectation distinct from doctrine of procedural fairness
o For analytical purposes – distinct
o Theoretical – legitimate expectations is element of principle of procedural fairness
• Doctrine focuses on conduct of public authority in exercising powers
• Canada Assistance plan case:
• 1)a purely ministerial decision, on broad grounds of public policy, will typically afford
the individual no procedural protection, & any attack upon such a decision will have to
be founded upon abuse of discretion
• 2)Public bodies exercising legislative functions may not be amendable to judicial
supervision
• Here language – representations had to be clear, unqualified and unambiguous
• He admitted that distinction b/w substantive and a procedural outcome is sometimes difficult
to distinguish but one should look at its function rather than attempting to classify smth as
procedural and substantive
RATIO • According to Canadian law, the doctrine of legitimate expectations is limited to procedural
relief and not substantive as in the UK.
ISSUE OF THRESHOLDS AND NATURE OF PROCEDURAL FAIRNESS IN CONSTITUTIONAL AND QUASI-‐
CONSTITUTIONAL ENACTMENTS, P. 175
• Can Bill of Rights (1960) – provisions of relevance to admin law issues
o s 1a which includes as one of rights – right to life liberty security of person and enjoyment of
property and right not to be deprived of except of ..by law
o S e – legislation is to be interpreted so as not to deprive a person of right to a fair hearing in
accordance w/ principles of fundamental justice
• The reach of bill of rights is similar to grounds – u can seek JR before fed court
o Under Fed court Act this applies w/ respect to various boards, tribunals and other entities
• Charter of rights – for admin law purposes – question is when does apply s 3.2(1) – this charter applies to
parliament and gov of Canada within authority of parliament and also to legislatures and gov of each
province
• Charter applies to Parliament and Government of Canada and one has to make determination if entity
is governmental
• BUT this is difference for decisions of PUBLIC body for common law purpose of JR (universities)
o Keep in mind the concept of gov court has written and its not equivalent to a public actor under
common law (universities – common law doctrine of JR applies) but SCC held that in general
universities are not included into concept of gov and thus Charter doesn’t apply directly to them – it
may apply to particular programs that are followed by a university, rooted in legislation
• Another example would be hospital boards that generally don’t fall under Charter but some of activities
might – Eldridge case – where Plaintiff sought right to have interpreter present and court held that brought
into play the human rights act of province and could be viewed under the charter
AUTHORSON V CANADA (ATTORNEY GENERAL) 2003, P. 179
FACTS • There question was whether or not Bill of Rights applied – whether there were rights under s
1a and 2(e) of the Bill of Rights
• Case of disabled veterans who were not competent to manage their own affairs and gov
administered their pensions. For many years monies were not in any way invested and no
interest was paid out but in 1990 new gov decided it would invest these $ and pay out interest.
103
Enacted statute – provision in Veteran affairs act – that stipulated no claim for pension interest
could be made for % that accrued prior to 1990
• Authroson sued for breach of fiduciary duty claiming that the statutory bar on the right to sue
was inoperative b/c it breached their rights under ss1(a) and 2(e) of the Bill of Rights
• Court was not responsive in positive way to this application
• Fed court of appeal was partially successful
ISSUE
HELD
REAS J Major
S 1(a)
• Guarantees the right of the individual to life, liberty, security of the person & enjoyment of
property, and the right not to be deprived thereof except by due process of law
• 1)Procedural rights in Legislative Enactment
• Argued that he was entitled to a right to notice & hearing to contest passage of that s in the act
• There is no procedure due to citizen in enactment of legislation other than 3 readings in
house of commons, senate. Otherwise the legislation is unassailable
• b/c we have constitution similar to UK’s there are no restraints on Parliament
• (we all know that after 2nd reading, committee held hearing – process that parliament imposes
on itself – we should also be mindful of fact that parliament can always enact legislation that
imposes some sort of procedural safeguards)
• 2)The Bill of Rights guarantees notice and some opportunity to contest a gov
deprivation of property rights ONLY in the context of an adjudication of that person’s
rights and obligations before a court or tribunal
• I.e. gov takes away veteran’s benefits b/c it believes he is no longer disabled.
• 3)Substantive due process – Canadian courts have been wary of recognizing substantive
due process protections
• Substantive due process rights in property – Bill of Rights does not protect against
expropriation of property by passage of unambiguous legislation. The Bill of Rights only
protects rights that existed at the time of its passage, in 1960. At that time it was undisputed as
is today that Parliament has the right to expropriate property if it made its intention clear.
S 2e
• No law shall be construed or applied so as to (e) deprive a person of the right to a fair hearing
in accordance w/ principles of fund justice for determination of his rights & obligations
• Applies only to individual rights and obligations (application of law to individual
circumstances)
RATIO
SINGH V CANADA (MINISTER OF EMPLOYMENT AND IMMIGRATION) (1985), P. 183
FACTS • S 7 charter – right to life, liberty and security of person – and right not to be deprived
thereof – was addressed in a decision early in charter era – 1985
• S was Conventional refugee claimant and there was refugee status Advisory Committee to
advise minister whether to recognize someone as Conventional refugee. Once minister made
determination, right to apply to immigration appeal board for redetermination of the matter
• There was no oral hearing given by board – board determined on materials that were
filed - there was no reasonable grounds that could establish claim for refugee status
• This application failed at fed court of appeal - He argued this case on basis of s 7
• Court requested written submissions on Bill of Rights and so counsel made them
• There were 7 members of court
• 3 of members analyzed whole case on basis of s 6 – J Wilson – 3 of members decided case
on basis of Bill of rights p. 193 – those judges emphasized claimant wasn’t afforded a fair
hearing not at any stage of process (minister, immigration appeal board and smth else)
104
• Initially there was inquiry made and he testified under oath – that transcript was sent to other
levels of decision making
ISSUE
HELD
REAS • Based on severity of consequences – there was possibility of being sent back to jurisdiction
where there might be a risk of torture
o He was entitled to full hearing
o Idea of written submissions wouldn’t be sufficient
• Case focuses on s 7 findings
• J Wilson went over procedure (have a claim when you enter, oath, transcript, moves up to the
minister, minister refers the claim to this refugee status advisory committee and upon advice of
this committee makes a determination) – technically it was a non-adversarial but in reality it
was really)
o During none of these steps – was there possibility of oral hearing

• Court made finding there was no common law duty of fairness in this case that would
override the procedural constraints laid out in the legislation

• The court turned to the provisions of s 7 – the effect of the act was that there was
determination made by Minister, individual had right to not be returned to country where
his life freedom was threatened, right to appeal deportation order
• Question is does deprivation of those rights equal to s 7 right?
o Security of person must encompass freedom from threat of punishment (including
invisible) and denial of that right would be deprivation of security of person
• Claim is entitlement to fundamental justice in determination as to whether or not that
person is a convention refugee
• Early decisions under Bill of rights that distinguished b/w right and privilege were disapproved
but she adopts as definition of procedural fairness smth that came out of Bill or Rights case p.
190 – s of what fundamental justice means – its fundamental justice in a procedural sense
• In 80’s BC Motorvehiles case – SCC held in accordance w/ principles of fundamental
justice also had substantive significance but here we are dealing w/ procedure
• Although oral hearing might not always be required – in case where credibility is at
issue, fundamental justice would require an oral hearing and written submissions
would be inadequate
• Immigration appeal board proceedings were quasi-judicial – materials were provided to
board that applicant had no access to – applicant had no chance to make an effective
challenge to decision of the Minister
• Determination was that procedure for determining refugee status violated s 7 of charter
• There was s 1 analysis but it predates Oaks
• In that analysis – simple admin difficulties, or difficulties in terms of cost – utilitarian arguments
as to why oral hearing couldn’t be provided – court absolutely rejected
• Case had huge impact on many thousands of cases that came before the immigration appeal
board
• Cost is not an issue – for determining reasonable justification under s 1 analysis
RATIO • Although oral hearing might not always be required – in case where credibility is at issue,
fundamental justice would require an oral hearing and written submissions would be
inadequate. Especially where there is a severity of consequences that can follow from the
decision.
• HOWEVER, there is no CL duty of PF in this case that would override the procedural
constraints laid out in the legislation.
CHARKAOUI V CANADA (CITIZENSHIP AND IMMIGRATION), 2007, SCC, P. 199
105
FACTS • Security certificates issued against individuals who are found to be a threat to security of
Canada and to security of citizens.
ISSUE Whether or not the individual had the right under this legislation to meet the case against him.
HELD
REAS • More of a constitutional law case – won’t get too into it
• This case changed the way in which the certificate hearings were held
• Challenged under s 7 of Charter
• The question of how to ensure that the sensitive materials that go to the security of Canada
can be kept from the individual who is under threat of removal from Canada
• Under the system then in place the whole issue was put before a fed court judge who under
request of minister would act in Canada as… ex-parte – no one would represent individual
• The judge himself was not able to make reference to any of these security materials
• In the end CJC found that this individual did not have the ability to meet the case
against him
• Court found this placed judges in impossible situation where they would have to make
decision w/o having knowledge of matters that gave rise to security concerns and that these
were all considered by authorities to be highly confidential and their release would be
damaging to security of Canada.
• Court there laid out process for the appointment of special counsel who would be given
security clearance and would then be able to participate in the process but still maintain the
confidentiality of material but at least they would have access to basis upon which decision
was being made and judge to be given full access to those materials as well
• Court gave 1 yr to the gov to amend this legislation to provide for these security advocates
RATIO

CH 4 – THE LEVEL AND CHOICE OF PROCEDURES, P. 247
• Concept that courts developed was that there was a spectrum of procedures which administrative
decision makers were obliged to apply in appropriate circumstances
• A)Trial type procedures in exercise of quasi-judicial functions where the same process is in play as you
would find in the court (representation by counsel, right to cross-examine witnesses, put forward evidence,
make argument and generally right to receive reasons)
• B)Informal procedures – vary depending on nature of issues at stake (by way of reconsideration and
reminder this is where Baker factors come into play
• Baker factors:
1) Nature of decision
2) Nature of statutory scheme in terms of enabling statute
§ appeal provided for or no appeal – has impact on whether reasons had to be given
§ investigatory powers or some preliminary step prior to the actual decision making will attract
less onerous procedures
3) Ministerial discretion – fewer procedural safeguards
4) Importance of decision to person affected – the greater the impact on rights of person, the higher
procedural protection is required
5) Legitimate expectation – Ch3 – representations made as to procedure to be followed made by
decision maker – he would be held to that process
6) Choice of procedures made by agency itself – agency appreciates more than court level of
procedure required – all to satisfy right of person to participate at some level in the decision making

• 2 classic U.S. of Supreme Court decisions, p. 256 and 259
• Outcomes of 2 decisions – were very different
• In US due process clause is found 5th Amendment to the Constitution
106
• After Civil War US enacted 14th amendment which provided for the same rights – due process
provisions in terms of actions – by individual states
GOLDBERG V KELLY, 1970, US, P. 256

FACTS • They were recipients of welfare benefits. Decision was made that they are no longer entitled to
benefits – what process should be followed?
• Process followed in New York city – recipient was given notice (written) and reasons as to why
their benefits were to be terminated and they could make written submissions to oppose. That
was preliminary decision – pending a full hearing post-termination where there was access to
counsel to cross examine witnesses and provide evidence.
• Very few applications were made to participate in post-termination hearing
ISSUE
HELD
REAS • Court focused on the impact that this termination of benefits would have on a person –
their life depended on it (food, clothing, housing) and w/o benefits they would become
desperate.
o How they would find means of daily substance?
• Purpose of welfare was to enable ppl to participate in life of community and not just
support of clothing and housing
• Cited preamble to constitution of US – granting public assistance was a means to promote
welfare
• Focused on the purpose of welfare being more than just supporting person but to allow them
to be active participants in civil society
• Argument against full hearing – one has to consider fiscal and admin resources of a state
and the adjudication summary of pre-hearing provided for was sufficient to protect public smth
• Question was whether fiscal and admin difficulties would be overcome if recipient is entitled to
full scale hearing prior to determination of benefits
• Court concluded that procedure in place was insufficient and directed full scale oral
hearings to be held PRIOR to termination of welfare benefits
• Dissent – argued that the practicable outcome of this decision would be that initial decision to
grant welfare benefits would become much more difficult for applicants – for them to be
successful and receive welfare benefits under this system
RATIO 1. Welfare benefits are a matter of statutory entitlement for persons qualified to receive them and
so procedural due process is applicable to their termination
2. The interest of the eligible recipient in the uninterrupted receipt of public assistance, which
provides him with essential food, clothing, housing, and medical care and the State's interest
that his payments not be erroneously terminated clearly outweigh the State's competing
concern to prevent any increase in its fiscal and administrative burdens.
3. A PRE-termination evidentiary hearing is necessary to provide the welfare recipient with
procedural due process:
(a) Such hearing need not take the form of a judicial or quasi-judicial trial, but the recipient must
be provided with timely and adequate notice detailing the reasons for termination and an
effective opportunity to defend by confronting adverse witnesses and by presenting his own
arguments and evidence orally before the decision maker.
(b) Counsel need not be furnished at the pre-termination hearing, but the recipient must be
allowed to retain an attorney.
(c) A decision must rest "solely on the legal rules and evidence adduced at the hearing."
(d) The decision maker need not file a full opinion or make formal findings of fact or conclusions
of law but should state the reasons for his determination and indicate the evidence he relied
on.
107
(e) The decision maker must be impartial, and although prior involvement in some aspects of a
case will not necessarily bar a welfare official from acting as decision maker, he should not have
participated in making the determination under review
MATHEWS V ELDRIDGE, US, P. 259

FACTS • 6 yrs later court came back to this question of benefits and of procedures at the pre-
determination prior to termination of receipt of benefits
• Arose under Due Process provisions of amendment 5
• Here dealing w/ Social Security Act and disability benefits paid out to those who were
physically or mentally disabled
• Process followed was – tentative decision would be made by state agency in consultation w/
social worker assigned to individual and on basis of medical opinions of physicians and other
medical information tests and results. If initial determination was adverse to the recipient of
disability benefits – the individual was notified, given a summary of materials and opportunity
to respond in writing.
• Based on those materials, final decision would be made if benefits should be terminated.
• Similar to previous case
• Once decision made, there was right to ask for re-consideration and if failed, one had to
have POST-termination hearing before admin law judge
• In US fed system – there is class of lower level judges – referred to as administrative law
judges – rather than use of adjudicative tribunals, many decisions are made by these admin
law judges (immigration matters)
ISSUE Was that process sufficient to protect interests of recipient of these benefits
HELD Yes
REAS J Powel
• Several factors – prior interests affected by action of the state – one must balance:
o what is the risk of erroneous deprivation of benefits through procedure used?
what are government interests including administrative and fiscal concerns,
burden of adding additional safeguards?
• To distinguish this case from previous – in this case recipients of benefits had other sources of
income, this wasn’t their only source of income
• Court stated that potential deprivations that the person was subjected to (if benefitis
were erroneously taken away) were likely to be less than the previous case
• Although court admitted there are hardships, they were less so than those suffered by
welfare recipients when there was termination of welfare benefits
• Court went back and said really there was no reason to depart from ordinary principle that
smth less than a full scale evidentiary hearing often suffices before adverse administrative
action is taken
• Here there wasn’t issue of credibility of applicant and witnesses – here materials were
medical records and recommendations, there was a detailed questioner that social worker
had individual to fill out as to their condition.
o All of these were factors indicative towards less formal process for termination of
benefits
• Moreover, public interest and admin factors could be properly taken into account
RATIO • There was no reason to depart from ordinary principle that smth less than a full scale
evidentiary hearing often suffices before adverse administrative action is taken

• Hard to reconcile these 2 decisions
• When u look at these decisions – court looking at private interest affected risk of deprivation of benefit as
opposed to having additional procedures and gov interest in protecting its admin and fiscal interests
108
• The main difference is in the perception court has as to the effect this deprivation of benefits had on
recipient of benefits
• In one case, they were much more significant and onerous for the recipient of welfare benefits – no other
source of income
• Degree to which credibility was at issue
• Mathews case – court took different view on individual – didn’t see as serious to his/her continuing welfare
and didn’t see credibility as an issue that had to be determined
• In both of these cases there were entitlements to procedural fairness
SURESH V CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION), 2002, SCC, P. 267
FACTS
• Consideration of a procedure to which Suresh was entitled (Ch 14)
• There is reference here to the provisions of Immigration act (not given here, look at p 900-
901 to see what provisions were – provisions 19 and 53)
• S 19 – indicates that anyone who was a member of terrorist organization is not admissible
unless satisfied Minister that their admission would not be detrimental to national interest
• S 53 – deals w/ Convention refugees and indicated they are not to be removed from Canada
to a place where they are at risk of torture b/c of their membership in any minority group
except a person inadmissible b/c they fall in class of those ppl who were former members of
terrorist organizations and would be danger to security of Canada
• This was issuance of certificate by Minister that his presence was danger to our security
• There had been interview of S and based on it, records went to decision maker and was
basis on which issuance of certificate was made
• Minister issued certificate that S was inadmissible b/c he was danger to Canada as per s 53
he was subject to deportation
• Suresh had opportunity to make written submissions before decision was taken
• BUT he didn’t have access to internal report made by Immigration Officer on which
Minister based his decision – so in effect he had no opportunity to respond
• He wasn’t able to respond either orally or in writing to smth he didn’t have access to
ISSUE Procedural protections to which one is entitled under s 7 of Charter – if they entitled S to a
greater degree of procedural fairness
HELD
REAS • Court pointed out that the procedural protections under s 7 are equivalent to common law
principles underlying duty of fairness and natural justice and that was already held in Baker
• One should look to Baker factors when making s 7 analysis as to sufficiency of
procedural safeguards
• One of differences b/w common law procedural fairness doctrine and fundamental justice
procedural element is that at common law procedures are subject to being overwritten by
Parliamentary act whereas under s 7 one must meet s 1 justificatory analysis to substantiate
an Act by Parliament which interfered w/ procedural protection grant
• Court went through Baker analysis
• 1) Nature of decision – nature of the decision to deport bears some resemblance to judicial
proceedings. While decision is of a serious nature, it is also decision to which discretion must
attach. Minister must evaluate not only past actions of and present dangers to an individual
but also future behaviour of that individual.
o Court concluded however that it didn’t weigh one way or another as to procedural
safeguards
• 2)Nature of statuary scheme – favours strong procedural safeguards.
• While the procedures set up under s 40.1. of the Immigration Act are extensive & aim to
ensure that certificates under that section are issued fairly and allow for meaningful
participation by the person involved, there is disturbing lack of parity b/w these protections
and lack of protections under s 53(1)(b).
109
• In the latter case, there is no provision for a hearing, no requirement of written or oral
reasons, no right of appeal—no procedures at all, in fact. As L’Heureux-Dubé J stated in
Baker “[g]reater procedural protections … will be required when no appeal procedure is
provided within the statute, or when the decision is determinative of the issue and further
requests cannot be submitted”
• There was no right of appeal, no procedures which favours greater procedural protection.
• 3)Importance of rights affected – also in favour of greater procedural safeguards
• The appellant’s interest in remaining in Canada is highly significant, not only because of his
status as a Convention refugee, but also because of the risk of torture he may face on return
to Sri Lanka. The greater the effect on the life of the individual by the decision, the greater the
need for procedural protections to meet the common law duty of fairness and the requirements
of fundamental justice under s. 7 of the Charter. Deportation from Canada engages serious
personal, financial and emotional consequences.
• 4)Legitimate expectation doctrine – court tied that in w/ Canada’s adoption of
Convention against torture and that under s 53 Suresh had the right to significant
procedural safeguards
• 5)Choice of procedure: this factor suggests a degree of deference to the Minister’s choice of
procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister
the choice of how best to make it.
• At the same time, this need for deference must be reconciled with the elevated level of
procedural protections mandated by the serious situation of refugees like Suresh (threat of
torture)
• Court concluded – there was no requirement for formal oral hearing BUT he was entitled to
more than what he received under act

1) He had the right to be informed of case against him, disclosure of materials relied
upon by the Minister (including internal report of immigration officer), he had right to
respond once disclosure had been made, and right to present evidence that his
presence in Canada was not detrimental to security in Canada.
2) He also had the right to challenge statements that had been made by government of
Sri Lanka in regard to their assurances that there would be no torture if he is deported
to Sri Lanka
3) Minister should have obligation and should have provided written reasons for his/her
decision. Explaining why presence of S in Canada was a danger to security of Canada
• There had been violation of principles of fundamental justice under s 7 – court indicated that
these violations couldn’t be justified under s 1 of Charter
RATIO • In terms of procedure, the principles of fundamental justice of which s. 7 speaks, though not
identical to the duty of fairness elucidated in Baker, are the same principles underlying that
duty
• One should look to Baker factors when making s 7 analysis as to sufficiency of procedural
safeguards
• Conclusion although no requirement of full oral hearing but was entitled to more than what he
received
1) In the context of Immigration cases, a person is entitled to receive disclosure of materials
relied upon the Minister while making his/her decision.
2) An individual should have a right to respond to this disclosure.
3) Minister should provide written reasons as to the decision being made.
o Ministers reasons had to address some of issues – chances of torture
RIGHT TO PARTICIPATE: SPECIFIC CONTENT ISSUES

110
• P 278 – 9 – deal w/ various general statutes that apply and have provisions for procedure (Statutory
Power of Procedures act, Admin procedures act in Alberta and BC)
• One has to bear them in mind to see what statute provides as well as case law
• Variety of specific content issues – both pre-hearing issues, at the hearing and post-hearing
PRE-‐HEARING:
• Notice. Ongoing discussion – reference to a variety of cases – one has to look at:
• 1)The form of notice
• 2)Manner of service
• 3)Time
• 4)Content
o all of those might get rise to issues of procedural fairness
• Generally speaking – notice has to be written
• In technological age we live in, many statutes provide for electronic giving notice
• Service should be on individual – fax, email
• Applicant has provided their coordinates so that Board can get in touch
• There could be provisions for public notice – see this in Commissions of Inquiry – often serve public
notice as to their hearings and provisions for interested ppl to participate
• Notices would have to provide a deadline for response – putting in once submissions – have to give date,
time, place for doing that
• If proper notice has been given – failure to appear is generally fatal to your case
o Ie. labour board – wait for 30 min – to allow late person to appear and if they don’t appear, court
moves on w/o them being present
• We are given series of short cases dealing w/ notice
• Series of cases that show how contextual all of these issues are – whether notice was sufficient or not

1)FORM:
RE CENTRAL ONTARIO COALITIONAN AND ONTARIO HYDRO, 1984 ONT DIV CT, P. 289
FACTS • Hydro was planning to build high-voltage line from Nuclear Power plant on shores of lake
Huron
• Question was what route to use – would require some expropriation of land and Hydro had
itself set out info about this and took steps to make public aware in potentially affected areas
• There was Joint board where there were provisions for ON Municipal Board and ON
Environmental Appeal Board to sit jointly and they did
• They sent put public notice (served municipalities that could be affected)
• No maps were provided
• They chose ALTERNATIVE route headed east towards Barrie for this line
ISSUE Was the notice provided in sufficient detail?
HELD No
REAS • Residences were unaware of the hearing and of the possibility their lands might be
affected b/c they didn’t consider themselves to be in South Western area
• Divisional court found notice to be misleading – description of geographical area affected
was inaccurate
RATIO • Test: would a reasonable person have understood the notice in all circumstances,
notwithstanding its inadequacy?
• A reasonable person reading the notice should be able to understand all of the relevant
circumstances
• Serious interests are at stake – expropriation of property

111
• This case can be contrasted w/ a case called Joint Board and ON Hydro – there noted that description
of area of Eastern ON to be affected was held by court to include area of proposed line and thus sufficient
notice

3)Time
• City of Winnipeg case – having to do w/ re-assessment of property and there was entitlement to appeal
process – to the Assessment Appeal Board
• Board was to give public notice of dates and places of its hearings and required 10 days notice from any
appellant
o their decision to file an appeal had to be filed 10 days prior to start of hearings
• Notice had been mailed on 10th of April and hearings scheduled for 12th of May so notice of appeal had to
be given by 2nd of May
• Notice from board – only reached person on the very day hearings commenced
• City objected to his right to appeal b/c of this 10 day
• Court held timeframe was directory and not mandatory and could be waived by a tribunal

• That’s contrasted w/ decision of Re Rymal and Niagara Escarpment Commission (p. 281) – there
property was on Niagara – needed permission from Commission to do any building on area
• Application was made to construct. Adjoining land owners had right to object. Commission mailed out
notices.
• Notice of appeal had to be filed within 14 days of date of mailing. Notice was received and the
individual filed appeal and mailed that back but that notice of appeal arrived 1 day late.
• 14 days had passed. Applicant who was seeking license to build – sought to prohibit the appeal.
• The court determined it would not allow the appeal to be made

2)Manner of Service
WILKES V CANADA (CITIZENSHIP AND IMMIGRATION), 2009, P. 282

FACTS • There was deportation order issued against Wilkes and he appealed that to the Immigration
Appeal Division and he gave his address as required in the form and cell # and appeal division
acknowledged receipt of his application
• He was informed in writing – u have to let us know where we can contact u – if u move we are
not responsible to locate u
• 1.5 years later they wrote to him requesting him to file notice of readiness for hearing within
15 days
• He moved and didn’t receive this letter and thus didn’t advise them
• 1 month later – show cause notice – as to why they will deem his application abandoned – he
didn’t show up since he didn’t receive it
• Division proceeded and determined appeal had been abandoned
• He applied for JR before Fed Court and failed. He had the same cell # and Division didn’t
make any attempt to call him
• Division itself ruled that there was no breach of procedural fairness
ISSUE
HELD
REAS • Court held Immigration Appeal Division was entitled to rely on mail and presuming it
was delivered to proper address
• Wilkes was aware of his obligation and it was his responsibility to maintain contact
• Court held decision was reasonable
RATIO • Issue on who does obligation lie to accurately describe address to which notice should be sent
• It was Applicant’s burden of keeping in touch w/ Board and thus his application could be void
112
ZELIONY V RED RIVER COLLEGE, 2007, MBQB 308, P. 283
• According to the internal process, student was entitled to 48 hrs notice on who witnesses would be at
the hearing BUT the college board failed to provide that notice.
• They offered counsel an opportunity to adjourn but counsel waived his right to adjournment and they
proceed
• Court held that waiver was binding, notwithstanding breach of time provision. Waiver will cure the
defect

4)Content
• Notice has to be sufficiently detailed so that you get idea of what’s at stake – what outcome might be
R V ON RACING COMMISSION, EX PARTE TAYLOR, 1970, P. 283

FACTS • A person was race horse trainer and one horse had intestinal upset and he had veterinarian
give medication that, unknown to him contained a prohibited substance – Procaine.
• House failed drug test.
• Racing society – indicated matter would have to go to the Racing Commission to determine
what should be done but in the meantime he would continue carrying out his business
• In fact, they suspended him for a period of time.
• Notice read – your presence is required, u have the right to counsel and right to bring
witnesses
ISSUE • Was that notice clear to him that he might be subject to suspension and fine?
HELD
REAS • Divisional court and court of appeal disagreed
• He was successful in divisional court – insufficient notice
• Court of appeal – as experienced horse trainer he would have been aware of danger that he
would be penalized, thus they found notice to be sufficient

• Contrasting case p. 285 - is Mayan v World Professional Chuckwagon Association (2011) –
collision b/w 2 wagons collided
• One argued – unprofessional conduct of another wagon
• Court fined him 500-200 dollars but also to suspension of membership
• There was hearing and he was suspended for 1 yr
• Notice didn’t give any particulars of complaint against him
• It gave no indication that suspension might be possible. Only referenced possibility of
fine
• Court of Queens bench held that notice was insufficient
RATIO
R V CHESTER, 1984, ONT HC, P. 281

• Penitentiary case – Chester was given notice he was being transferred.
• Decision of ON high Court under special handling unit
• A person is subject to severe restrictions. Reasons given was that he was to be transferred – violent and
threatening behavior and assault on staff member
• He responded to this by addressing incident that occurred on July 6
• What does this notice mean – is it conjunctive or disjunctive – violent and threatening behavior and your
assault (is it 1 event or not)?
• Court held notice was misleading and inadequate and that it should have been made much more
clear to him that conduct other than conduct on that one date was taken into account

Discovery p. 293-4
113
• Issue if discovery
• There is reference to a criminal case – R v Stinchcombe (1991) – Crown has obligation to disclose all
relevant info from its inquires even if they aren’t relied upon and if they are favorable to the
accused
• Issue: what about disclosure in admin law case setting?
• All cases are indicative that it isn’t fully applicable in admin law setting

• Reference to case Canada Labour Relations Board v Quebecair (1993), p. 294
• Board ordered production of certain docs prior to the hearing.
• Provision of the statute Board has the power in relation to any procedure before it to summon witnesses
and compel them to give oral evidence on oath and to adduce such docs as necessary
• The court restricted this – Board could only order production of documents in conjunction to summons of
witness, otherwise it could only order production of documents at the hearing itself
o One has to look at statue to see if it speaks to particular issue
o Provisions did not authorize compulsory discovery orders outside the context of a formal hearing
o There was no room for pre-hearing discovery
o S 118 was limited to orders for production of docs in the context of witnesses being
summoned to give evidence on oath

• Contrast to next case:
ON (HUMAN RIGHTS COMMISSION) V ON (BOARD OF INQUIRY INTO NORTHWESTERN GENERAL
HOSPITAL), 1993 (ONT DIV COURT), P. 295
FACTS • A board of inquiry was set up under the Ontario Human Rights Code to hear a complaint of
racial discrimination made by ten nurses employed by the hospital. In the context of that
inquiry, the following order was made:
o “I order the Commission to provide the Respondents with all statements made by the
Complainants to the Commission and its investigators at the investigation stage, whether
reduced to writing or copied by mechanical means. I further order the Commission to
provide the Respondents with the statement and identity of any witness interviewed by
the Commission or its agents who the Commission does not propose to call and
whose statements might reasonably aid the Respondents in answering the Commission’s
case.”
• Commission applied for JR
o Board’s comments;; While I have been told no more of the allegations than this, it appears
to me that the allegations are very serious indeed, with the potential, if made out, to ruin
reputations, and cast a pall over the future career prospects of anyone found to have so
discriminated.
ISSUE
HELD
REAS • Even though not criminal proceedings, must apply full disclosure because eliminates surprise,
ensures justice and because racism is very serious.
o It is, of course, of the utmost seriousness if any such racial discrimination exists or has
existed in an important public institution such as a major hospital. The consequences
attendant on a negative finding by a board of inquiry would be most severe for the
respondents as any such finding could and should seriously damage the reputation of any
such individual.
However, it is of public importance as well that the complainants appreciate that
allegations of racial discrimination are indeed serious and therefore should be made in a
responsible and conscientious fashion. The fact that complainants are aware that their
original complaint or complaints may be subsequently disclosed, might well encourage
complainants to take the appropriate care in communicating their allegations
114
RATIO • Court said need to balance seriousness of allegations against serious implications to
reputation of hospital personnel
• Court held – individuals affected were entitled to access to those materials. Rejected argument
that this would lead to discouragement or even intimidation of ppl to come forward.
• Weighted against was the impact on hospital personnel

• Sought from Commission Disclosure – wanted statements made by complaintants.
• 10 nurses complaint of racial discrimination by the hospital and the Board required that they provide to the
hospital all the statements made by complainants and statements of witnesses interviewed that wouldn’t be
called
• Court also had provision similar to the fed case CLR v case – p 296 – court read that disjunctively and said
that court of inquiry had right to order disclosure
• S 8 provision – where good character or competence of party is at issue
• Court held there had to be a balance – not to discourage complainant to come forward by ordering
production of interviews against the threat to the reputation of institution and career prospects of
those who might have acted in discriminatory manner
• Serious allegations vs serious implications for those affected
• Court mentioned Stichcome – analogous to the case

• Economic regulation doesn’t attract the same level of procedural fairness as in other settings
• A Price Review Board scheduled a hearing to determine if drug has been sold at excessive price
• Board had power to order price reduction and offsetting amount gained by excessive revenue
• There Chairman of Board considered report from staff – and based on it ordered hearing
• Wanted access to staff report
• Board refused to give disclosure
• Was of view that one had to take into account public interest but also had to ensure that its orders / staff
would be as candit and objective as possible
• Went to trial division fed court – fed court again emphasized procedures of natural justice vary in
circumstances. One has to give leeway to admin tribunals engaged in economic regulation in terms
of their investigatory activities
• It was not necessary for board to disclose the internal report of board staff
• Upheld by fed court of appeal – not operating – issue didn’t come up in crim or human rights type matter –
in economic regulation
MAY V FERNDALE INSTITUTION, 2005, SCC, P. 301

• Returned to prison setting
• Involuntary transfer from min to medium security institution due to a reclassification of security rating
• There was scoring matrix used to make decision to re-classify based on seriousness of defence, crim
history of individual and person’s behavior in serving sentence
• SCC held Stichcombe is not applicable in admin context and it was sufficient if May was provided
w/ a summary of the reasons for his transfer but he was entitled to disclosure of the scoring matrix
and methodology used to calculate the score and the weighing of various factors so that material
scoring matrix had to disclosed
• Granted his application

• Returned to Suresh - earlier - request of his extradition from Canada to US for terrorist activities
• Hearing usually held before J – in which applicant has to establish basis upon which seeking extradition –
full scale trial process
• Once decision is made, issue goes to the Minister to decide / ultimate discretion to make decision if to
surrender him / her for extradition
• S challenged decision of Minister
115
• SCC has outlined factors Minister had to take into account, whether or not its preferable that an individual
be tried in Canada
• Minister relied on prosecution services to make decision
o S wanted access to those recommendations from prosecuting authorities
• SCC held he was entitled to that material – one would assume that Minister acts properly and had
taken into account all of the factors
• He had been given chance to answer to decision

NOTES:
• There are privilege claims – solicitor-client privilege – in the context of which one can’t demand disclosure
• There are other privileges: litigation as between parties any negotiations taken as to outcome of
proceedings
• Concept of public interest – new
• Privacy claims that may give one privilege
• There are also issues of commercial secrecy
CLIFFORD V ONTARIO (ATTORNEY GENERAL) (2008), P. 303

FACTS • Retirement system – application made to Appeal Committee – had to make decision
• Person died and had named former wife as beneficiary but had a common law relationship w/
another woman
ISSUE • Question was whether or not the pension monies that go to the surviving spouse would go to
former or present spouse?
HELD
REAS • Former spouse brought application to challenge decision to give benefits to common law
• Wanted right to examine for discovery common law spouse to determine nature of
relationship
• Court HELD:
• There was exchange of docs, exchange of witness statements prior to the hearing
• There should not be oral discovery of witnesses under oath
• ON divisional court – makes note that Tribunal is master of its own procedure – fits in 5th
Baker factor – one looks at decision of particular decision maker to determine if fairness
is owed
• Emphasized idea of admin process
• There was procedure for disclosure, for production of documents
• Formal wife – seek more disclosure at the hearing – she would have chance at the hearing to
cross-examine the other party
• Application for Pre-hearing discovery was rejected
RATIO • Tribunal is master of its own procedure – fits in 5th Baker factor – one looks at decision of
particular decision maker to determine if fairness is owed

Delay Issue in the process, p. 304
• There are some cases that emphasize that rather going directly to the court (inordinate delay) – one should
participate in proceedings when they take place. Can argue issue of delay before tribunal rather
• Generally, courts are reluctant to interfere w/ process until its fully completed and then one can make
application
• Some delay one can explain (in professional disciplinary cases if there are cim proceedings as well for the
same misconduct, admin body (prof association) will delay the hearing until outcome of crim process)
• SCC has addressed question of delay in crim process
• Recently case – Jordan case
116
• Blanko case – we don’t have to read it p 216- there court – issue of delay – didn’t get hearing until 30
months later. Court it was not inordinate delay in circumstances. Sexual harassment allegation against
minister
SASKATCHEWAN HUMAN RIGHTS COMMISSION V KODELLAS (1989), SASK CA, P. 305
• (In Sask they don’t have Human Rights Commission yet, goes to Queens bench – don’t want this matter to
be dealt in admin process. BC and ON now have direct access to Human Rights tribunal by individual
making claim of discrimination. Led to a much more efficient procedure, we don’t have delay issues)
• Human rights commission process was – u make complaint to commission, goes through investigation,
conciliate parties, then whether to remit matter to be heard by Human Rights Board of Inquiry
• This is still system in fed jurisdiction – human rights commission > tribunal
• In this case there was delay from time complaints made (2 sets) – 38 months delay and 47 in another
case
• Court looked at the following factors:
• 1)whether delay complained of is prima facie unreasonable, having regard to the time requirements
inherent in such a remedial proceeding
• 2)reason or responsibility for delay, having regard to conduct of complainants, commission,
including inadequacy of or limitations to its institutional resources and conduct of alleged
discriminator whether he//she failed to object or waive any tome period
• 3)prejudice or impairment caused to the alleged discriminator by the delay
• If yes – case can be thrown out due to unreasonable delay
• In this case, court – delay on Human rights commission – found it to be unreasonable and therefore the
complaint was not to be heard. There was prejudice to the alleged discriminator.
• Decision was quashed
• Extensive delays can cause cases to be thrown out
THE ACTUAL HEARING

1)Oral or Written Hearing:
• Even before Nickolson – oral hearings were almost automatic – the whole idea is u have opportunity to
orally put forward your case
• Post-Nickolson – principles of procedural fairness do not require an oral hearing
o Written hearing would be sufficient
• In cases where credibility is at issue of applicant or witness party – you will find oral hearing is generally
appropriate
o That’s common law
• Under Charter s 7 – procedurally the same outcome in terms of entitlement to oral hearing
o Surresh case – he was entitled to written representations
• There are cases dealing w/ sexual harassment
• Many workplaces have procedures in place to reduce tensions that arise b/c of sexual harassment and
reduce inhibitory affect on complainant
MASTERS V ONTARIO (1994), DIV CT, P. 310

FACTS • We see process in place in ON public service
• Masters – was an ON agent general in New York – diplomatic – appointed by Premier – and
there were allegations of sexual harassment against him
• Gov retained law firm to do investigation and came w/ a report
• Investigation took place and many ppl were interviewed - 40 ppl
• Upon receipt of report, Masters had a right to answer to report and he also was
interviewed
• He reached settlement w/ gov and retired from gov service
117
• There was application for JR to have access to those witnesses and opportunity to cross
examine
• There was agreement through investigators – he was given names of witnesses and thus had
access to interview them
• Many witnesses refused to co-operate
• He claimed a right to a hearing before impartial decision maker and right to cross-
examine witnesses on who government was relying
• Issue of credibility and his reputation were at stake
ISSUE • Was he entitled to a full scale oral hearing?
HELD
REAS • Divisional court – J Adams
• Emphasized his office was held at pleasure – much closer to discretionary legislative side
– in regard to if he was entitled to fairness
o Question of complete ministerial discretion to keep him
• On the other hand, here we have misconduct at issue and the employment of person at
stake
• At the same time, wellbeing of complainants and the necessity for harassment free
workplace were pressing concerns
• Followed procedures in harassment prevention directive and that would have impact on duty of
fairness and level of procedure required
• J rejected idea that full scale oral hearing was necessary
• There was no obligation on gov to make these witnesses available to cross examination
• He had a right to reply to final report
• And on basis of that report as well as submissions made – on those basis decision was taken
by Premier
• So Allegations against him were never fully adjudicated before any body
RATIO

• Harassment policy – employer takes action – employer cannot take disciplinary action against employee
except for just cause. Issue of just cause entitles union employees to arbitrator
KHAN V UNIVERSITY OF OTTAWA (1997), P. 314

FACTS • Khan she wasn’t successful 2L student – evidence exam and she filled out 3 booklets, she
thought she mistook what time for exam was. She noticed she had another half hour and she
started 4th booklet
• There was no reference to 4th booklet. She submitted 4th booklet but examiner never received
it. She was graded on basis of 3 booklets and she failed. This affected her GPA and brought it
below min level. She was required to complete an additional semester.
• She appealed grade
• Faculty and exam Committee met w/o giving her notice and said her grade would stand
• She went to Senate who confirmed decision of Faculty
ISSUE Decision of ON court of appeal – as to whether she was entitled to an oral hearing
HELD
REAS J Laskin
• Issue as centered around credibility of Kone as to whether or not there was 4th booklet
• When this application was brought – on application for JR evidence comes in the way of
Affidavit – it was filed by faculty committee and they admitted there was no 4th booklet in their
opinion
• In circumstances of this nature where her professional career and academic status was
at issue and there was implicitly a finding that she was not credible, she was entitled to
an oral hearing
118
• Dissent – whether or not she handed in 4th booklet, didn’t …no finding she was not credible.
We know there is gross deficiencies in 3 booklets handed in and statement of 4th booklet was
self-serving and since no allegations were made against her as to dishonesty, found insufficient
evidence of the 4th booklet
• There was no error or injustice in grading of exam and would have denied application for JR
RATIO

2)Right To Counsel:
HOWARD V STONY MOUNTAIN INSTITUTION (1985), FCA, P. 332

FACTS Howard was charged w / violation of penitentiary service regulation and incident took place in Dec
31, 1989 – 5 charges were laid against him, extended to 7.
• Written submissions were made by counsel he retained through Legal Aid
• Both AG and his counsel made submissions on this issue
• Request was denied
• He applied for JR
• He was due for release in June and they held hearing on this day – and he was found guilty on
majority of counts
• He was due for release in June b/c he accumulated close to 265 days of remission – and
these were subject in whole or in part to forfeiture
• In proceedings he was found guilty – he had 2 months before he would be released
• Proceedings were of administrative nature, quasi-judicial
ISSUE Issue – entitlement to representation by counsel as per s 7 of charter
• Did he have right to counsel in common law?
HELD
REAS • Even at common law faced w/ these quasi-criminal charges he was entitled if counsel
was necessary to fully properly present his case
• Court turned then to Charter – if under Charter someone is entitled to representation by
counsel varies
• You are entitled to fundamentally just procedure and various factors should be considered:
o knowledge of person as to case
o fair chance to answer etc
• S 7 doesn’t create an absolute right to counsel BUT such right would arise if its necessary
for person to have full opportunity to prepare case
o One must look at case, its nature, seriousness, complexity
o Capacity of person to represent themselves
• If it appears a person requires counsel to present their case, they should be entitled to
counsel
• In this case court held prohibition should have issues, 3 of charges arose out of the same act,
1 charge difficult to defend - was charge he had prejudiced order of institution.
• He really required counsel to adequately present his defence
RATIO
NEW BRUNSWICK (MINISTER OF HEALTH AND COMMUNITY SERVICES) V G(J), 1999, P. 336
FACTS • Also deals w/ s 7 of Charter and issue of entitlement to counsel
• Setting of custody proceedings – children
• The childcare authorities were seeking 6 months extension of custody of order which was in
effect for at least a year
ISSUE
HELD
119
REAS • Court said – one needs to look at seriousness of issue at stake, complexity, capacity of
applicant
• At issue is not only security of person but rights of children and parent-child relationship is
significant one
• Proceedings are difficult to classify but in effect they were adversarial – parties represented by
counsel
• 3 days hearing scheduled
• Minister was going to present expert reports
• She was overwhelmed – she received some Pro bono Siskinds help – her application for Legal
aid to get counsel was rejected as it didn’t give help to cases of child custody
• To represent oneself at such a hearing, person is required to be of superior intelligence,
education
• She didn’t meet that standard and very few ppl would meet it – self-represented clients are at
disadvantage
• Argument was made it would put strain on Legal Aid system to provide Legal Aid
assistance in child custody proceedings
• J was of view this was not an answer – failure to provide state funded counsel by some
mechanism was denial of procedural fairness
• S 1 analysis
• Gave brief analysis & said if we presume its oppressing and substantial objection not to
support individuals in custody cases and the policy was rationally connected to objective and
we presume its min impairment. When we stand back, deleterious effects of policy far
outweigh the salutary effects of any potential budget saving
• Mentioned here – its very rare u have violation of s 7 - very rare one can be saved as harmless
under s 1
RATIO

Prison Cases
GALLANT V CANADA (DEPUTY COMMISSIONER, CORRECTIONAL SERVICE CANADA) (1989), FCA, P. 372
FACTS • Gallant – entitlement to disclosure and sources of info on which prison authorities have acted
• G was ordered to be transferred from 1 facility to another. He was suspected of extortion of
money and property from other inmates, other members of outside community, threats
of violence, drug importation
• Basis upon which these allegations were made, were informers within prison
• Nothing further than these general allegations were given b/c it would jeopardize safety of
informers. Decision was to transfer him
ISSUE
HELD
REAS J Pratt
• This was emergency situation and there is no obligation to provide procedural fairness
in such circumstances. In general, one should have chance to refute case against him
and on the other hand wardens have obligation to eliminate bodily injury of other
inmates
• Where circumstances to relieve from obligation to provide procedural fairness and give more
fulsome notice?
o Yes – parliament intended
• Was there violation of s 7 – the procedural fairness and principles of fund justice?
• Ordinarily transfer to more severe restrictions has to accord w/ 7
• These rules are flexible
120
• Under Charter, any modification by Parliament of rules of procedural fairness would have to
ask Master under s 1
• Even assuming that there was a breach of principles of fundamental justice in case of
transfer – J Pratt took view it was saved by s 1
• (P. 375 – his s 1 analysis wouldn’t pass constitutional examination)
• J Marceau agreed – although he said he didn’t agree that prison authority were relieved from
duty of procedural fairness but rather the keeping confidential names of informers could
influence content of duty of procedural fairness
• Agreed w/ outcome of another J – breach of s 7 but saved

• Dissent – disagreed w/ other 2 judges that this was merely admin matter.
• This was disciplinary matter, charges would result in loss of liberty and this attracted
principles of procedural fairness in common law and s 7 – person didn’t have enough info
to defend himself/
o What quantity of drugs, who was targeted, was there police investigation – should
have been asked and reply given
• Makes suggestion there are providence in Evidence Act for the production by prosecutor
of a sealed Affidavit with explanation of why non-disclosure has been justified. Was
often procedure undertaken
• What was basis on which informants were deemed to be reliable
• Lack of any evidence as to reliability – no independent investigation that would corroborate
informer’s info was such that he was denied common law right to procedural fairness and right
under s 7 of charter
• She would have dismissed appeal b/c of lack of supporting affidavits
• Procedure she suggested should have been in play in Kayla case

RATIO Denial of both common law of procedural justice and s 7 right of the Charter
MISSION INSTITUTION V KHELA, 2014, SCC, P. 379

FACTS • Khela received life sentence in max security institution – 3 yrs later transferred to medium
security in 2007 and 3 yrs after that he was involuntarily transferred back to max security
institution on emergency basis
• Security reclassification scale and had overwritten scale outcome
• Reason was that there was stabbing of another inmate and he was implicated there was info
received by several other inmates and the finding based on report – he hired 2 ppl to stab
person in return for heroine and that’s why he was immediately transferred to max security
• 3 sources for basis and no detail as to names, what they said
• He gave written rebuttal – why he shouldn’t be transferred and asked for disclosure of
scoring matrix and it wasn’t given to him. He also wanted identification of sources against
him
• Warden refused
• Made application – BC supreme court – ordered back to medium security and was upheld in
Court of Appeal
ISSUE
HELD
REAS • There were provisions in the statute that one is entitled to info or summary of info on
which warden acts EXCEPT in certain circumstances that were laid down in the statute
and those exemptions were if there were reasonable grounds to believe safety of ppl
was jeopardized, conduct of investigation was jeopardized
• Onus is on commissioner to make the argument as to why there are such circumstances
121
• Generally, in cases of this nature one should have a sealed affidavit delivered to J with info and
given reasons why further disclosure would jeopardize safety of any person, safety of institution
etc as to why tips from informers were reliable
• He held that commissioner was entitled to some margin of deference in making such decisions
• Decision of warden here didn’t disclose info, didn’t give him any summary, didn’t seek
justification under s in statute and made no mention as to statutory requirements
• Court holds entire series of events to have been procedurally unfair and the decision to
transfer inmate to more secure institution must be made in procedurally fair manner
• Correction authorities have to meet statutory disclosure requirements so decision to transfer
him was unlawful
• It took so long to get to SCC – Kayla had been sent back again to max security institution
RATIO • Correction authorities have to meet statutory disclosure requirements so decision to transfer
him was unlawful
POST-‐HEARING
DUTY TO GIVE REASONS, P. 424

• Know from Baker, there is no absolute requirement to give reasons by admin decision maker but there
is some indicia indicating reasons should be given
• In Cooper, right of appeal – one can imply there is right to reasons
• Similarly, if right to JR was frustrated by lack of reasons – argument that reasons may be required
• On that spectrum from legislative policy making on one hand and adjudicative hearing on the other,
one finds duty to give reasons varies
• Mavi case – immigrant case – cost of social assistance was given to sponsored immigrant – unnecessary
to give reasons by gov for its decision to collect on those debts

Content of duty to give reasons?
• Have to recall under Dunsmuir, the whole issue of reasonableness of decision spoke in terms of test there
being justification, transparency intelligibility of decision from which one is seeking JR
• One goes through standard of review analysis
NEWFOUNDLAND AND LABRADOR V NEWFOUNDLAND AND LABRADOR NURSES’ UNION CASE (2011, SCC)
• Court spoke in terms of QUALITY of reasons being dealt w/ more appropriately in the standard of
review analysis as opposed to where there is TOTAL ABSENCE of reasons where one would go
through procedural fairness analysis
MANITOBA LTD O/A LONDON LIMOS V UNICITY TAXI LTD (2012) MBCA, P. 426
FACTS • London limos was seeking taxi license. Association of cab drivers filed intervention in
opposition to grant license. They were given right to make representations as to why license
ought not to be granted.
• The test that lawyer put out in the hearing for granting of license was public convenience
and necessity will be met after issuance of licenses
• Looking at impact of additional taxi services, on holders of licences and the adequacy of
existing services
• Board in fact granted license
• But didn’t give written reasons
ISSUE • Was it obliged?
HELD
REAS • Opponents went on JR – on basis no formal reasons were given
122
• Came before Manitoba Court of appeal
• J discussed process taking place in court. He indicated at court hearing matter was of
economic regulation, proceedings were recorded and transcribed, the test court was to use
was laid out before parties, and its clear from transcript there was full discussion of that issue:
whether or not situation merited grant of license.
• J held that record was sufficient to indicate reasoning of board
(Have to remember in Baker there was also question of reasons and court again using – indicated
notes taken my immigration officer were sufficient for reasons of decision – indicated bias on the
aprt of immigration officer)
RATIO In some situations, it will be sufficient to have transcribing record indicating reasoning of an
administrative decision-maker as reasons and no official reasons have to be provided
WALL V INDEPENDENT POLICY REVIEW DIRECTOR, 2013, ONSC, P. 429

FACTS • Case arose out of G20 summit conference in 2010 in Toronto – there were confrontations b/w
police and various ppl who gathered to oppose G20. Were mass arrests and mass detention
that gave rise to various inquiries.
• He was wearing disguise and was initially detained but never charged
• Made complaint to this independent Policy Review Director and role of director was to screen
complaints that came through and if they were deemed fit to be heard in full – complaint would
be passed to Toronto Policy services board for full investigation
• The director could also choose not to pass complaint and dismiss it for variety of reasons
(whether it was in public interest to deal w/ complaint).
• Also, statute stated complaint would be dismissed if filed over 60 days after the event that
gave rise to it. Complaint was dismissed and the basis on which it was dismissed is in
decision issued by director p 432 – “office is aware of your concerns..”
ISSUE • Were those reasons and if they were, were they adequate?
HELD
REAS • At the divisional court – J took position that there were no reasons given, thus it was not
necessary to engage in a standard of review analysis as it may have been if argued was
adequacy
• Indicated – factors that were critical to the issue
• Spoke about importance of why we want reasons from admin decision makers
1. Ensures impacted individual – assures concerns were met;;
2. Public in general – legislative methods properly administered;;
3. May be necessary for any meaningful JR
• Importance of Giving reasons was relatively low
• There was provision in statute p 431 addressed – director if they decide not to deal w/
complaint shall notify complainant and chief of police force in writing of decision w/ reasons
• Here there was statutory requirement for reasons
• There was failure to comply and the court took position that the letter was insufficient to be
considered as true reasons
o Officer didn’t state what submissions were, evidence before it and was insufficient
• Failure that violated principles of procedural fairness and natural justice – was entitled to know
why decision was taken and court itself was entitled
• Absence of reasons made it impossible to conduct any meaningful JR
• The compliant that he made, he filed 2 complaints:
o 1)let ultimately to disciplining of officer who detained him but in process he discovered
there were directives given by Chief of police in terms of detention and arrest
o 2)Filed against this guy Blair (chief) and other higher officers – and that’s the complaint
rejected b/c of beyond 60-days limit
• So what court should do in terms of relief?
123
• Argued that court should direct that matter go to Toronto Police Services Board for full
investigation and skip step of screening by director. Rejected that and instead re-mitted
matter back to director w/ statement of the factors that he/she should consider in
making a decision as to whether or not to accept compliant and send it to full
investigation
RATIO

• In many of these cases, breach of principles of natural justice - question arises as to how to go about
granting relief – sometimes re-mitted to the same decision maker or to another body of decision makers,
another individual in decision making tribunal
WALL V OFFICE OF THE INDEPENDENT POLICY REVIEW DIRECTOR (2014), ONCA, P. 435
FACTS • This case came up on appeal – director appeled to court of appeal
• Court was of view these were very underdeveloped reasons
• Read what division court said
ISSUE
HELD
REAS • When one looks at adequacy of reasons – one goes to standard of review analysis but
this is example were court didn’t do it
o Emphasized same factors
• Of view that letter didn’t have adequate reasons to allow JR – there were factors laid out in
legislation that should have been referred to
• Reasons should be sufficient to allow for JR
• In response to the argument, b/c of # of complaints made, this would be burden of Director –
inadequate resources to deal w/ such # of complaints
• Court rejected this argument – reasons don’t have to be that full – they don’t have to be
complex, merely have to be sufficient to allow complainant understand reasoning of
director
RATIO
ALBERTA (INFORMATION AND PRIVACY COMMISSIONER) V ALBERTA TEACHERS’ ASSOCIATION (2011), P.
437
• Saw this case before
• Interesting case b/c this was decision in which court held reasons might not be explicit
• Court can find them to find them being implicitly given and that’s what court did in this case
• Case were decision maker had to indicate if it was extending time period to give decision – had right to
extend that time frame but hadn’t addressed that in their decision that came out later than 90 days
• Court held it was implicit in the fact that she issued it late, she must have made decision to extend
time period
• Court spoke about what options were: remit matter back to original decision maker
BIAS AND LACK OF INDEPENDENCE, P. 439

• 1) First pillar was entitlement of person to participate in some way in proceedings
• 2)Second pillar of principles of natural justice and procedural fairness
o This pillar – one can’t be a judge in one’s own case
• Look at application of principles that govern the issue of bias
• Text commences – we all have preferences, predispositions and tendencies by virtue of our backgrounds,
personality, training
• If that were sufficient to make bias – we would not have chance to have a fair hearing but that’s not
basis for bias
124
• We know there is rationale – in terms of appointment to SCC – should person appointed – woman, man,
Indigenous person
• American decision – decision made Jerome Frank – one of realists and was then appointed to Court of
appeal – “if bias and partiality be defined to me… then no one has ever had a fair trial and no one will. We
are born w/ pre-dispositions “
• Sometimes there is greater tolerance for decision maker to have particular attitudes to issue (field of
labour law – tri-partied boards – appointments from mgmt. and from labour and neutral sitting in the middle.
One expects there are bringing particular perspective)
• Sometimes statute speaks directly about type of individual legislature wishes to appoint – Human
Rights act – provision s 35.1 – persons appointed as members of tribunal must have experience, expertise,
interest in and sensitivity to human rights
• Law about bias is generally common law, there can be Charter elements – s 7 in the concept of the
right to life liberty security of person in accordance w/ principles of fundamental justice
• There are also in fed sector Canadian bill of rights
BIAS: GENERAL TEST

• General test has been laid down – find at p 443
• Comes from decision of court in case Committee for Justice and Liberty v National Energy Board
(1978) – one of justices in Dissent articulated what we mean by bias of tribunal and it was accepted
by majority
• TEST: Apprehension of bias must be a reasonable one, held by reasonable and right minded
people, applying themselves to the question and obtaining thereon the required information. The
test is what would an informed person, viewing the matter realistically and practically and having
thought about the matter through – conclude.
• Reference is reasonable apprehension of bias, likelihood, reasonable suspicion
• Once apprehension must be reasonable
• There are variety of cases where issue of bias might arise
• We saw antagonism directed towards counsel – Dorre case where J was reprimanded for the way he
treated lawyer
• In Baker – notes of Immigration officer indicated antagonism towards Ms Baker

1)Association Between Party & Decision-Maker

• More often, the cases are where there is some association b/w decision-maker and one of the parties
before decision maker – some sort of association present or in the past
• Gives us 2 conflicting decisions of ON divisional court
• 1) Marques v Dylex (1977) and 2) Terceira, Melo v Labourers Inl Union of North America (2013, ONSC)
• 1)In both cases, Vice Chair of board who sits on matter
• One of parties appeared before is party for whom Vice Chair acted in the past on different matter
• The law firm representing that party is law firm Vice chair was member prior to this appointment
• Year passed since his appointment to Board and in the divisional court – J Morton held in these
circumstances, the judge would recuse himself - there has to be some time period in which one
cleanses oneself from any previous association
• Generally, in Judicial system it is 5 yrs – appropriate time for J to be cleansed from any previous
association – appearance of bias
• Of course J wouldn’t act on matter he/she had actually been engaged in as a counsel but should be able to
hear cases – presented by former colleagues
• We know, whole process of appointments to tribunals in labour setting is that the parties (mgmt. and
labour) have faith in the abilities and credibility of the decision maker – aware of the filed of labour relations
and of the positions of parties within that sector
• Legislature purposefully appoints to the tribunal ppl who have practiced labour law – for chairs and vice
chairs
125
• There was no reasonable apprehension of bias in such circumstances

• 2)Second case – judge of the same court came to an opposite conclusion
• Vice Chair acted for 7 yrs previously and overturned decision
• Previous case is more reasonable decision in his opinion and followed more
UNITED ENTERPRISES LTD V SASKATCHEWAN (LIQUOR & GAMING LICENSING COMMISSION), 1997, P.
447
FACTS • United Enterprises case – deals w/ the tenure of the hearing
• We know that even in cases of adjudicative bodies the process is more informal than it is in
the courts
ISSUE
HELD
REAS • Here, there was a license suspension (liquor) and applicant applied for review before Licensing
Commission and there was counsel to the commission who in essence prosecuted the case
• 1)It happened that the hearing location – counsel entered hearing room together w/
members of Commission hearing case and was there at the time applicant was invited
• This happened throughout 2-day hearing
• 2)Chair kept referring to Commission counsel by first name as opposed to counsel for
applicant
• 3)At the end of the hearing Chair wanted to confirm if he would be attending her bbq later on
and counsel said yes
• At this point it was too late to make representations on bias
• Normally where there is reasonable apprehension of bias – have to raise that matter
before decision and decision maker makes initial decision whether to recuse himself or
not (u don’t judge in your own case)
• Failure to raise matter of bias if u are aware of bias – could be deemed to be waiver
• Saskatch Queens Bench Court quashed decision
• Reasonable apprehension of bias was present.
RATIO

• Another case. Chair was primarily competitor – and the chair named the other members of tribunal – one
was someone from the public and the other was girlfriend and employee of applicant’s previous business
partner w/ whom there was breakout of partnership
• There was reasonable apprehension of bias in structure of tribunal
• In smaller jurisdictions, this is an issue one has to be aware of – small bar and it’s small business
community and there will be more re-occurrence of apparent bias b/c of size of community

• The Sask Liquor Board case is contrasted w/ Law Society case DemAria v Law Society of
Saskatchewan p. 448
• He was denied admission to the bar and now appeared before law society admission committe
• Basis of denial was his questionable conduct while articling student and the fact that he cheated on bar and
examination
• There hearing was held and decision made
• In these cases counsel for law society appears in prosecution role
• Committee made decision that Chair emailed decision to counsel and in that email “I could bring copies of
decision to..does anyone go to golf” came before sask court of queens bench
• Decision was already made – not sufficient to raise an apprehension of bias

126
2)Involvement of Decision-Maker in Earlier Stage of Process

• Situation in the Committee for Justice and Liberty v National Energy Board case where we saw
statement about reasonable apprehension of bias that has been adopted by courts
• What situation was there – application made to the national energy board for a license to construct a
natural gas pipeline and this application was made after lengthy series of preparation to bring the
application
• Chair of the National Energy Board had been president of Canada Development Corporation and
while he was president CDC became party to study group that put in forward idea of this pipeline and
was engaged in its discussions and planning, issues as to ownership of pipeline, its routing
• Court held that previous participation raised a reasonable apprehension of bias

• A similar issue – previous involvement of decision maker – Province of New Brunswick v Comeau
(2013) – decision of New Brunswick Court of Appeal – dealing w/ Ministerial decision to discipline 2
employees of adult training facility
• That decision – what occurred there was investigation and it was supervised by Regional Director and
that investigation came up w/ a report which was sent to the Minister who then sent it to Regional
Supervisor to take action in dismissing these ppl
• J Bell held Regional Director’s role in investigation was incompatible w/ his role as the final
decision maker
• There may be cases where there can be an overlapping of roles of investigator and decision maker
– cases where statute expressly provides for - some Brosol case – overlap of investigatory and
adjudicative functions for securities commission was statutorily provided for >>> overwritten by statute

• Vespra v Ontario (Municipal Board) (1983), Div Ct, p. 450 – example of previous involvement in decision
• There was application for development of lands – outside of city and that application had been turned down
• The developer went for JR and was successful in JR and the matter was sent back to the municipality to be
re-considered
• Few years have passed since the original decision
• Re-assessment was ordered
• Board based its second decision on evidence made before it on the first decision
• There had been strong statements made in earlier decision – “this development should have never been
allowed…”
• Such statements could lead a reasonable person to the conclusion that it might be difficult for the
panel to draw back from those statements and bring back an impartial mind.

3)Attitudinal Bias
• What about attitudinal bias?
PAINE V UNIVERSITY OF TORONTO (1980), ONT CA, P. 452

FACTS • This was application for tenure – tenure means one is given full time continuing
appointment that cannot be terminated before retirement except for cause
• Process followed at the time was – initially members of department were asked to give
assessment of person who was up for tenure
• One of those assessments said – applicant was not good for tenure
• Assessment of tenure Committee – 3 members set on it - committee had other members – a
total of 7
• Chair of Department had appointed this person who made negative assessment onto
tenure Committee and tenure committee denied tenure to the member
• In those circumstances, ON divisional court took position that including this professor who
made negative assessment was a denial of fairness
• Professor went through appeal process and appeal was denied
127
• Had taken matter to the University of Ombudsman and he was of view that this was denial of
fairness
• Came down to the court – peer review had to be open and unbiased vis-à-vis candidate
ISSUE
HELD
REAS • ON Court of appeal – reversed finding – one has to look at culture within university as
self-governing community
• It was inevitable members of community would have views about abilities of each other
• And Paine appealed on basis there was bias
• Court was of view that there wasn’t in circumstances a reasonable apprehension of bias
– one has to be deferential to decision making process established in university and one
has to be deferential to decision taken in particular case
• Decision that echoes concept of deference to tribunal
RATIO
LARGE V STRATFORD (CITY) (1992), DIV CT, P. 456

FACTS • Human Rights Board of Inquiry – at the time there was no human rights tribunal in ON – there
was a system of ad-hoc appointments of boards of inquiry
• Professor was appointed to hear complaint filed by member of police force who had
been (b/c reached age of 60 reached mandatory retirement age established under collective
agreement)
• Professor also was President of Canadian Association of University teachers – after he
released his decision but before he had made any ruling as to compensation, he made public
statement as a President that questioned the whole concept of mandatory retirement
ISSUE
HELD
REAS • Decision didn’t fall for him to make ruling if mandatory retirement was discriminatory b/c
parties agreed that it was discriminatory
• His case dealt w/ secondary question that flows from that – if there is discriminatory act is it
saved by being bona fide occupational requirement?
o this question was answered in the negative
• Court spoke about the concept of having members of Board of Inquiry – experience in human
rights matters
• Was very different from committee of Justice and Liberty case
• Whatever his views on questions which were NOT IN ISSUE in this case, there is no
evidence of any reasonable apprehension of bias on the question to be decided by the
chair of the board if inquiry.
RATIO
GREAT ATLANTIC & PACIFIC OF CANADA V ON HUMAN RIGHTS COMMISSION 1993, P. 456
FACTS • Professor Constance Backhouse – she was appointed as chair of board of inquiry – about to
hear case where issue was systemic discrimination on basis of sex – there hadn’t been
board of inquiry that addressed such question
ISSUE
HELD
REAS • As feminist professor, she was one of signatories to complaint filed to human rights
commission – against president of York University that his appointment of male to the office
was indicative of systemic discrimination on basis of sex and that the candidate should
have been and was a woman. Application was made for prohibition
• In this case a person was personally engaged as a party – person made complaint to ON
Human Rights commission which was identical to the issue now before her and being
128
President of the very same commission which had represented her in the previous complaint
against York university
• She personally chose Commission to be her own advocate
o This is contrasted to the previous case
• Court held there was a reasonable apprehension of bias
RATIO

• What about allegations of bias based on the Identify of the decision maker?
HOWARD JOHNSON INN V SASKATCHEWAN HUMAN RIGHTS TRIBUNAL (2011), SKCA, P. 457
• Sask COA - Human right complaint
• Individual appointed was Indigenous person
• Issue: before him was case of discrimination by Howard Johnson’s’ against Indigenous person – in
expelling this person from premises
• Adjudicator acted before for First Nations even on HR matters
• Was there a reasonable apprehension of bias?
• If we make such ruling, essentially Laskin wont be able to appear on civil liberty cases
• Or American black jurist can’t deal w/ cases dealing w/ race
• Court made reference to case R v S(RD) – case of Black provincial court judge – case against black
teenager who had been arrested by police. Discussed in her decision reality of being a black teenager
• Court held that there wasn’t any apprehension of bias
• She has taken into account context of race relations, context was well known

4)Peculiarly and Other Material Interests, p. 464

• Direct pecuniary/financial interest b/w decision maker and party will give rise to bias
• Some old case – made ruling against company in which he held shares
o That relationship gave rise to reasonable apprehension of bias
• Energy Probe v Canada (Atomic Energy Control Board) (1984) case p. 464 – there the board itself
appraises individuals who represent different parts of industry and also others interested in the whole
question of autonomy energy
• Member of board was President of company which sold specialized cables to ON Hydro – required for
operation of energy facility and Hydro was now before the Board asking for renewal of license of another
nuclear facility
• Question was ought that member of the board to have been ceased of this case
• He was also member of several organizations supporting nuclear power facilities
• Court was of the view that there was no direct pecuniary interest matter
• Fed court of appeal: mere possibility that he might profit in the future out of other contracts that
might be awarded through tendering process in the course of construction of other nuclear
facilities was too remote to give rise to reasonable apprehension of bias

• In Canadian Pacific Ltd v Matsqui Indian Band (1995) p. 466 – as part of a process of self governance –
the Band had the right to assess users, those who were in any way active on lands – tax them for that
usage
• It had subjected Canadian Pacific for tax purposes and there was Tax Appeal Board comprising of
members of Indian band
• Issues was: whether they will profit by a decision that they might make whether to approve tax
assessment itself or to modify it
• Assessment by band and that implicate members of the band as who receive no personal profit was to use
that as basis for finding of reasonable apprehension of bias
• Court rejected and found that any conflict b/w members of tribunal was merely speculative

129
NOTES:
• Dealing here w/ common law and common law doctrine of reasonable apprehension of bias will
always be subject to legislative intent as expressed in the statute and there can be conflicts of interest
that ordinarily give rise to reasonable apprehension of bias
• Egg marketing board example where producers of chickens and eggs have to be licenced
• License had been withdrawn and application had been made to board and board was comprised of
competitors to the field
• This was intention of Parliament – must have recognized there would be conflict b/w individual
producers appearing in front of board

5)Variations Depending On Context, p. 466

• Post-Nicholson there is going to be a wide range of context in which the issue of bias arises and that the
standards of disqualifying bias may vary widely depending on context
• Series of cases that deal w/ expression of an opinion as to the liability of a matter that’s going to come
before the tribunal for decision making
NEWFOUNDLAND TELEPHONE CO V NEWFOUNDLAND (BOARD OF COMMISSIONERS OF PUBLIC UTILITIES)
(1992), P. 467
FACTS • Board of public utilities – this revolves around member of the board
• That member came out of municipal sector – proponent of rights of consumers via-vias
telephone who had monopoly
• Expressed his concern about pay and benefits of senior executives of telephone companies
which he described as unconscionable
• Matter came before tribunal and for determination on the pay and benefits of senior
executives – if its expense that should be upheld or stuck down
• P 467-8 – “if they are going to give rate …shareholder should pay these expenses and not
clients”
• This was said prior to hearing but during ongoing investigation
• During hearing he appeared on TV and radio giving his views of the matter before the board for
determination (described amount of money, salary as incredible to manage a small telephone
company)
• Compensation was excessive and no justification for it
REAS J Corrie
• Court articulated the whole concept that the disqualifying standard for bias varies
depending on nature of institution and also pointed out that some bodies such as this
board exercise both investigative and adjudicative processes
• At the hearings – following them – the board disallowed cost for pension plan but didn’t deal w/
the salaries that were paid to executives
• This was split decision
• Indicated in decision that matter of excessive pay would come before the board at another time
• Make up of board – is alright
• As long as individual views the matter fairly, strives for just result and makes decision
based on evidence - good
• Spoke about different types of bodies and makes statement – adjudicative tribunals are
expected to comply with the same standards as courts (we saw in to her cases Marques and
Dialects case – they said opposite)
• Spectrum – more adjudicative (higher standard) -> to policy making bodies (more of
legislative process) where standard is going to be lower
• Policy formation body – make expressed strong opinions prior to the hearing – as long as they
make decision based on evidence before them but statements that Wells made prior to the
130
hearing during investigative stage would not in themselves be fatal to his continued sitting on
the board
• Once decision had been made to hold hearing and hearing was held the standard becomes
stricter and he has crossed the line in his public statements as to the remuneration and
benefits that senior executives enjoy
• Decision was struck down
RATIO • Test set out by SCC when dealing with policy making bodies or particularly evident in
cases of municipal boards – the counselor as long as he/she doesn’t have a closed
mind as to a matter BEFORE determination, expression of interest in matter is okay
OLD ST BONIFACE RESIDENTS ASSN INC V WINNIPEG (CITY) (1990), P. 472
• There had been election during the process but unclear if he had expressed position on the project
• Application came before the municipal counsel and they granted application for re-zoning area to be built
• J Sopinka – emphasized rules of natural justice and procedural fairness will vary
• One has to look at terms of governing statute, type of decision to be made, all of circumstances to
determine if the standard of reasonable apprehension of bias has been met
• That is well known that legislature must be aware of the fact that municipal counselors obtain their
office by democratic process, may have debated issues and candidates take positons both pro and
cons
• He so no problem w/ assisting developers plans through the process as long as he remained open to be
persuaded
• Final debate following representations made by those who were in support and opposition of particular
project
• Closed mind test. Individual couldn’t be dislodged from position he/she had taken previously as
long as there is openness to being persuaded then the previous support or opposition to a project
isn’t fatal
BEAVERFORD V THORHILD (2013), ABCA, P. 475

• Alberta Court of Appeal – denial of permit for developer application of gravel extraction
• Member of counsel had made statements in opposition to gravel in county
• Court concluded that this statement was fatal to the decision that had been taken and to his
participation in the decision making process
• Was applying a close mind test
SAVE RICHMOND FARMLAND SOCIETY V RICHMOND (TOWNSHIP) (1990), P. 474

• One of counselor’s campaigned in favour of approving re-zoning of project
• Challenge of allegations of bias
• Counsel stated he would listen to arguments against the project but wouldn’t change his mind
o Would take smth very significant to change his mind
• Court found that this was indication of a closed mind
• J La Forest rejected concept of closed mind as a determinative factor – one has to look at reasons –
someone’s mind to be closed from persuasion
• Permitted to have closed mind as long as this was honest opinion and have arisen by way of some
proper purpose
• Accepted view – one is entitled to have a closed mind to decision making process provided closed
mind is of honest opinion strongly held
• This was for legislature to act in determining what a standard of reasonable apprehension of bias should be
in municipal sector
SEANIC CANADA INC V ST JOHN’S CITY, P. 476
131
• Newfoundland trial decision – court applied closed mind standard
• Counselor announced he made his mind to oppose application for project and he did so b/c his
constituents were in opposition and he was bound to make determination based on views of his
constituents
• Court saw that as a failure to put his mind to the issue that he ought to have made his mind based
on legitimate planning considerations
• One would expect him to act after a debate before the counsel and bring a degree of independent
judgment
• This reflects about our parliamentary system and theory of democratic representation – that a member of
parliament is a representative of constituency, not a delegate
• Rep makes a decision independent and isn’t bound by the constituency
BROSSEAU V ALBERTA SECURITIES COMMISSION (1989), P. 478

• Principle decision of SCC that articulates view if there is statutory provision for overlap of functions
b/w investigative and adjudicative then the decision maker (adjudicative) cannot be challenged on
basis of bias b/c the legislature has enacted a scheme in which the common law doctrine is not to
apply
INDEPENDENCE
• Look at concept of Independence and within that concept, also we are shifting our focus from a particular
individual and the state of mind of particular individual and whether or not that individual has
exercised his/her authority free – in an impartial manner and is free from any allegation of bias
• Decision in this section of text – we move to structure of decision making body itself
• The court had in early 90’s in case Midday p 42 – articulated the view there is such a thing as
institutional bias
• That impartiality similar to the concept of independence has institutional aspect
• THE TEST that one applies there is different b/c of structure of institution – is there a reasonable
apprehension of bias in a substantial # of cases?
QUEBEC INC V QUEBEC (REGIE DES PERMIS D’ALCOHOL) (1996), P. 482
FACTS • We see example of this idea in this case – question was whether or not in its structure there
was a reasonable apprehension of bias in the workings of the Regime
• Court referred to that test - reasonable apprehension of bias in a substantial # of cases
• Here the overlapping of functions, lawyers in legal branch was seen to give rise to such
a bias
• Except we have here – describing the structure of the regime
• Had a Chair and 5 Vice chairs – 6 Directors – not necessarily legally trained, had 5 yr terms, w/
respect to salary, benefits were determined by gov
• Had powers of Commissions under Public Inquiry Act – power to issue summons etc
• Chair would preside over sessions – where all members of regime would sit – normally 2
members per application
• Cases that came before them dealt w/ granting of permits to serve alcohol or the
termination of such grant
• There was a secretary responsible for legal services union
• Lawyers participated in both investigative, prosecutorial and adjudicative functions of
regime
• Would review files brought to the court and would frame the summonses to be issued by the
regime
• Would meet w/ solicitors of record, representing parties to clarify what issues were to be
determined
132
• They would act as counsel to regime and also present argument in public hearings before the
regime
• Argument supportive of action taken in suspended license for example
• Would also give legal opinion at request of directors – engage in legal research, write memo
• Also draft decisions for members of regime
ISSUE
HELD
REAS • J at the heart of the appeal is the role of these lawyers and its possible for the same lawyer to
be engaged in all of these processes in the same case
• In particular, J found fatal participation of prosecuting counselor in the actual
adjudication process
• This overlap of these functions – possible that the same lawyer would be engaged in all
the functions in the same case
• That didn’t pass – there was reasonable apprehension of bias in a substantive # of cases

• As to independence of members of regime court found there was no breach of principles
of natural justice
• There was close relationship b/w regime and Minister
o Regime would issue report and deliver annual report to the Minister
o Minister could initiate proceedings before the regime
o Minister had role of approving rules of procedure for the planery sessions of regime
• Were these relationships fatal to its independent function?
• What would be fatal if Minister was involved in adjudicative process but this was
administrative process and didn’t give rise to issue of independence
RATIO

• There has been within admin law community for many yrs question about independence of adjudicative
decision makers
• Our system reflects English system and the issue revolves around independence and whether
independence is compatible w/ Term appointments
• In all tribunals of ON - gov policy is to have appointees to adjudicative tribunals appointed for 2 yr term and
they can be reappointed for 3 yr term and then once again for 5 yr term based on performance
• Total length of appointment is max 10 yrs
• There has been appointments at pleasure – they don’t reference any term of appointment – terminable
at pleasure of Lieutenant gov and Cabinet
• In civil tradition – adjudicative decision makers have security of tenure – similar to what we
associate w/ judiciary. Security of tenure of superior judiciary is constitutionally entrenched s 96 (no
dismissal except for cause)
OCEAN PORT HOTEL LTD V BC (GENERAL MANAGER, LIQUOR CONTROL & LICENSING BRANCH) 2001
FACTS • Liquor control and licensing branch of BC
• All of members were part time and were appointed at pleasure and Ocean Port Hotel
appeared before Commission and its liquor licences was lifted
• Challenged decision based on fact members of licensing branch of tribunal had no
security of tenure – they were part time and paid on per diem basis – one could withhold
assigning cases to them by Chair if Chair was unhappy w/ outcomes of decisions made
ISSUE • Question was whether or not this structure was fatal to integrity of the commission
HELD • The argument made was that members of adjudicative tribunals should have the same degree
of security of tenure as constitutional ones
• W/ respect to prov court judges they also enjoy security of tenure
133
• What was source of that security of tenure and court held it arose out of the preamble
of 1967 Constitution act – similar to UK and was source of independence
o Court held justices of peace also enjoyed security of tenure
• Adjudicate decision makers should enjoy the same security of tenure

• Judgment written by McLauchlin – no to those submission
• She emphasized that statutory regime prevails over common law principles of natural
justice and fairness
• She focused on the fact that these were at pleasure appointments
• Independence of these adjudicative decision makers were determined by enabling
statute
• Ultimately its Parliament that determines the relationship b/w tribunal and Executive
• Para in the decision that has given rise to a lot of discussion p 24 p. 491:
Admin tribunals lack constitutional distinction from executive. They are created precisely for the
purpose of implementing gov policy. Implementation of that policy may require them to make
quasi-judicial decisions. They thus may be seen as spanning the constitutional divide b/w the
executive and judicial branches of gov. However, given their primary policy-making function, it
is properly the role and responsibility of Parliament and the legislates to determine the
composition and structure required by a tribunal to discharge the responsibilities
bestowed upon it. While tribunals may sometimes attract Charter requirements of
independence, as a general rule they do not. Thus, the degree of independence required of a
particular tribunal is a matter of discerning the intention of Parliament or the legislature and
absent constitutional constraints, this choice must be respected.
• The concept that admin decision makers sit as part of executives
• Decision put to risk this argument that adjudicative decision makers should have security of
tenure
• Lamer - They are not courts and do not occupy the same const role as courts
• Legislatures moved away from at pleasure appointments – there is smth wrong about the fact
that a person has no security of appointment
REAS
RATIO

• Moved to term appointments – ON is 2 yrs, followed by 3 followed by 5 appointments
SASKATCHEWAN FEDERATION OF LABOUR V SASKATCHEWAN (2010)

• Emphasized policy making role of such tribunals – Sask piece of legislation. Application had been made in
Sask by Federation of Labour opposing the overriding of the tenure of tribunal members of labour relations
board
• There had been a change of gov and new gov had campaign on making various changes to labour
legislation
• Premier – it was necessary to remove members of labour relations board
• Gov didn’t have confidence in them giving affect to new policy changes
• Application was to terminate their appointments
• Court pointed out this was statutorily permissible and provisions in statute are on p. 494
• Notwithstanding any agreement, where there has been a change in gov - ….
• Exercise of statutory power by cabinet that brought to end terms of members of labour relations board
• Members of adjudicative tribunals are basically in essence members of executive branch

• Can tribunal members talk to other members on a case. P. 508 – court held as long as there is no
determination of facts by other members of tribunal and they limit their discussions to policy there
is a legitimate way to ensure uniformity of outcome and its different from discussions b/w judges in
the appealte courts
134

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ADMINISTRATIVE STATE AND THE RULE OF LAW .................................................................................... 5

BODIES REGULATING ACCESS TO OCCUPATIONS AND PROFESSIONS

SUBSTANTIVE REVIEW, P. 629

BISHOP V ALBERTA COLLEGE OF OPTOMETRISTS (2009) ABCA, P. 684

QUESTION OF LAW

THE DISAGGREGATION DILEMMA: LEVIS AND VIA RAIL

CUPE V NB LIQUOUR CORPORATION (1979) P. 756

THE CONCEPT OF JURISDICTIONAL ERROR

CH 14 APPLICATION OF STANDARD OF REVIEW, P. 769

THE ESTABLISHMENT OF A SINGLE DEFERENTIAL STANDART

DUNSMUIR V NEW BRUNSWICK, 2008, P. 785

CATALYST PAPER CORP V NORTH COWICHAN (DISTRICT) 2012, P. 794

REASONABLENESS REVIEW AND STATUTORY INTERPRETATION, P. 804 – 816

MCLEAN V BRITISH COLUMBIA (SECURITIES COMMISSION) 2013, P. 818

CORRECTNESS REVIEW IN THE GUISE OF REASONABLNESS?

REASONABLENESS AND GIVING OF REASONS P. 824

NEWFOUNDLAND AND LABRADOR NURSES’ UNION V NEWFOUNDLAND AND LABRADOR (TREASURY

CONSTITUTIONAL REMEDIES, P. 861

R V CONWAY (2010), SCC, P. 861

OAK’S OR ADMIN LAW FRAMEWORK?

A CLOSER LOOK AT THE PRE-­‐BAKER REVIEW OF DISCRETIONARY DECISIONS

UNREVIEWABLE DISCRETIONARY POWERS? P. 916

LEGITIMATE EXPECTATION CONCEPT

CHARKAOUI V CANADA (CITIZENSHIP AND IMMIGRATION), 2007, SCC, P. 199

GOLDBERG V KELLY, 1970, US, P. 256

MATHEWS V ELDRIDGE, US, P. 259

RIGHT TO PARTICIPATE: SPECIFIC CONTENT ISSUES

WILKES V CANADA (CITIZENSHIP AND IMMIGRATION), 2009, P. 282

R V ON RACING COMMISSION, EX PARTE TAYLOR, 1970, P. 283

R V CHESTER, 1984, ONT HC, P. 281

MAY V FERNDALE INSTITUTION, 2005, SCC, P. 301

CLIFFORD V ONTARIO (ATTORNEY GENERAL) (2008), P. 303

THE ACTUAL HEARING

MASTERS V ONTARIO (1994), DIV CT, P. 310

KHAN V UNIVERSITY OF OTTAWA (1997), P. 314

HOWARD V STONY MOUNTAIN INSTITUTION (1985), FCA, P. 332

MISSION INSTITUTION V KHELA, 2014, SCC, P. 379

DUTY TO GIVE REASONS, P. 424

WALL V INDEPENDENT POLICY REVIEW DIRECTOR, 2013, ONSC, P. 429

BIAS AND LACK OF INDEPENDENCE, P. 439

BIAS: GENERAL TEST

PAINE V UNIVERSITY OF TORONTO (1980), ONT CA, P. 452

LARGE V STRATFORD (CITY) (1992), DIV CT, P. 456

BEAVERFORD V THORHILD (2013), ABCA, P. 475

SAVE RICHMOND FARMLAND SOCIETY V RICHMOND (TOWNSHIP) (1990), P. 474

SEANIC CANADA INC V ST JOHN’S CITY, P. 476

BROSSEAU V ALBERTA SECURITIES COMMISSION (1989), P. 478

SASKATCHEWAN FEDERATION OF LABOUR V SASKATCHEWAN (2010)

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