Administrative Law Review

Chapters 1 & 2

Judicial Review:
The scope of judicial review is supervisory which is different from an appeal. The court
is not supposed to decide the merits of the matter. The court can look into whether it
was decided unlawfully. If it was decided unlawfully then the court will quash the
decision and send it back with directives.

An appeal is different from a judicial review in that with an appeal the court can look
into the merit of the matter. Appeals exist only in statute and never in common law. In
contrast, judicial review exists even if there is a provision, which denies judicial review
to the courts. Judicial review is an inherent part of our system.

There are three sources of judicial review: (1) Common Law; (2) Statutory; and (3)
Appeal.

Judicial Remedies:

1. CertiorariQuash or set aside a decision (bring up the record).

2. Prohibition Order a tribunal not to proceed (you cannot issue an injunction
against the government so we have prohibition instead).
3. MandamusOrder the performance of a public duty.
4. Habeas CorpusDetermines the legality of a person=s detention (still issued by
the courtsCring forward the body to the court for the legality of detention)
Grounds For Review:

1. Procedural impropriety
2. Illegality
3. Unreasonableness
4. Unconstitutional

There are two main concerns in administrative law:

5. The process by which a decision is reached.

6. The merits of that decision.

The courts have claimed authority over procedural issues as long as the body was within their
jurisdiction and less over the substantive merits of the decisions.

The study of procedures has two themes:

1. Entitlement to procedural rights or Athreshold@. Is this a decision for which there

should be some procedural protection of rights? Is there jurisdiction over the subject
matter or the parties.
 2. The choice of procedures to be required, assuming the threshold will be crossed (right to
notice, make submissions, oral or written, etcY)

The law pertaining to procedure is comprised of:

7. The common law.

8. Legislation & regulations.
9. The Bill of Rights & Charter of Rights.
10. The practices of the agencies themselves.

Locus standii has been enlarged so that if someone has a legitimate interest in the outcome and there
is no other practical way to get into court then the judge will grant standing.

Prerogative writs only lie against a public body. If you are dealing with a private body such as a
sports organization which does not have a legislative base for its authority then you will have to
go for a declaration or a private lawsuit.

Prerogative writs cannot get you damages. You have to sue and you might want to get a declaration.
The problem with declarations is that they are not inherently binding or enforceable. They are a
statement about rights in a particular situation.

Three limits that may be placed upon an administrative agency by a court:

11. The requirement for a fair procedure.

12. The right to an unbiased decision-maker.
13. Statutory decision-makers must stay within their grant of legislative power (jurisdictional
limits/control).

Rule 1CFair Procedure:

This includes the right to:

_ Attend and participate actively.

_ Receive advance notice of hearings (reasonable notice).
_ Disclosure of case against you.
_ Participate through legal counsel.
_ Enter favourable evidence.
_ Adjournments if necessary.

Three sources of process law:

1. The Common Law
_ Natural JusticeCAudi Alteram Partem AMust Hear The Other
Side@, Procedural Fairness, Due Process, etcY
_ Classification of the administrative function.
_ AJudicial@, AQuasi-Judicial@, AAdministrative- with judicial
elements@, and AAdministrative@
 2. Legislative Provisions
_ Enabling statutes.
_ Subordinate legislation. (e.g., Regulations)
_ General procedural legislation (e.g., Public Inquiries Act)

3. Process Rights and the Charter of Rights and Freedoms

_ Section 7Clife, liberty and security of the person.
_ Section 8Cunreasonable search and seizure.
_ Section 52Centrenched civil protections.

Rule 2 Unbiased Decision-Maker

The bias rule, or nemo judex (in caus sua) prohibition, was created to ensure objectivity in
decision-making. A person should not participate in the decision-making process if their
financial interests, attitudes, opinions or prior involvement (with the parties or subject
matter at hand) might reasonably be seen to interfere with their objectivity. These
disabling influences can range from clear conflict of interest type problems to subtle
attitudinal bias due to general preconceived views about the subject matter.

The object behind this rule is decisional or institutional integrity (public confidence in
statutory decision-making.) The rule does not concern itself with discovering or
assessing actual bias or prejudice.

Rule 3 No Errors of Jurisdiction

1. Notions of jurisdiction: Aauthority to decide@, Ascope of powers@

2. History of jurisdictional error.

3. Errors of lawCstatutory decision-makers make errors of law frequently. There is a high

level of expertise needed to interpret and apply statutory provisions. Judges differ about
the meaning of particular legislative provisions. The distinction between an Aerror of
law@ and an Aerror of fact@ is sufficiently blurred that it has become a judge=s tool
for reviewing statutory decision-makers if they are Ashocked@ by the outcome of a
decision or concerned how it was reached.

4. The legal test for errors of lawCour starting point for appreciation of the scope of judicial
supervision imposed upon administrators, is adjustment to the scope of supervision by
virtue of whether the supervision is pursuant to the common law of judicial review or
pursuant to some statutory appeal.

Generally the common law of judicial review is:

(1) The error of law must be (either):

(1) Real, significant or non-trivial

 or
(2) Serious, blatant or unreasonable

(2) The factual error has occurred because the finding is totally unsupportable by the
record (essentially, there is no probative evidence to support the finding.)

5. The ALaw@ InvolvedCStatutory decision makers do interpret, apply and to some extent
make law. Judges will give or deny deference to the legal pronouncements made by
administrators depending upon the very nature of the law involved. Typically, such law
involves:

(1) Areas of law involving process and bias issues:

(1) Natural justice: -procedural - bias

(2) Fundamental justice: - procedural -bias
(3) Decision making without a hearing
(4) Unlawful sub-delegation

(2) Interpretation/application of the enabling statute and regulationsCthe range of

issues involved could vary from key decisional criteria to collateral provisions
such as those related to the investigatory powers of the decision-maker.

(3) Interpretation/application of some other statuteCdecision makers may have to

interpret or apply a great variety of legislation ranging from the Summary
Convictions Act to the Charter.

(4) Interpretation/application of the common law.

(5) Pronouncements/interpretation/application of evidence law. Evidence issue could

be substantive or procedural. For example, issues of reliability, relevancy,
standard of proof, onus of proof, etc.. The source of evidence law could either be
legislatively or common law based.

Administrative Law Remedies:

_ The former prerogative writs of certiorari, mandamus, prohibition and habeas

corpus, and statutory reform of the writsCfederal and provincial reform toward a
general Aapplication to review@ (N.B. reform). Reformed to remove formality and
technicality, and to modernize historic jurisprudence related to availability and
operation of the prerogative writs.

_ The Charter has granted courts the first express (as opposed to inherent) power
of judicial review of administrative action. The new constitutional authority goes
beyond supervision of formal validity and procedural propriety. The courts can now
review administrative action that is unjust on substantive grounds. Sections 24 of
the Charter and Section 52 of the Constitution Act have authorized the courts, and
some administrative decision-makers, to fashion remedies appropriate to the
circumstances. The full extent of this power has not been tested in Canada.
Chapter Two

Procedures

Procedural Fairness

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police

Elaboration of New Doctrine

Board of Education of the Indian Head School Division No. 19 of Saskatchewan v.

Ronald Gary Knight

Cabinet Appeals

Attorney General of Canada v. Inuit Tapirisat

By-Laws and Rule Making

Homex Realty and Development Co. Ltd. v. Village of Wyoming

Policy Making

Bezaire v. Windsor Roman Catholic Separate School Board

Canadian Association of Regulated Importers v. Canada (Attorney General)

Decisions Affecting Rights, Privileges and Interests

Re Webb and Ontario Housing Corporation

McInnes v. Onslow-Fane

Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98

Non-Dispositive Decisions

Re Abel and Penetanguishene Mental Health Centre

Irvine v. Canada (Restirctieve Trade Practices Commission)

Legitimate Expectation

Reference re Canada Assistance Plan

Furey V. Roman Catholic School Board of Conception Bay et al.

Haoucher v. Minister for Immigration and Ethnic Affairs

The Charter and Bill of Rights: Sources of Procedural Protections

National Anti-Poverty Organization v. Canada (Attorney General)

Singh v. Minister of Employment and Immigration

Chiarelli v. Canada (Minister of Justice)

Wilson v. Medical Services of British Columbia

Nisbett v. Manitoba (Human Rights Commission)

Cooper v. Board of Works for Wandsworth District (1863)

Facts:
 The Board demolished a house that Cooper a contractor not the owner had done
on a house. He sued under trespass for damages.
 The case was brought under original jurisdiction

Disposition: Cooper is successful

Legal Reasoning:

14. The powers granted to the Board are to be qualified by the principle that Ano man is to
be deprived of his property without the opportunity to be heard.@
15. The power of the Board carries enormous consequences. Nature of the impact: It could
apply to a complete house or a house of any value.
16. There may have been a good excuse why the Board did not get its notice. Better
decisions may be the result of consultation with those affected. This is a public policy
issue.
17. The advantages of giving people like Cooper the opportunity to be heard (substantial
justice, fulfilling the purposes of the statute) outweigh the Board=s power to make a
decision without the opportunity to be heard.

WillesHe found that the statute expressed the legislative intent that such a committee
Ashall hear and determine all such appeals@. As such, the statute indicates that
people, like Cooper ought to be given the opportunity to explain himself. If there is an
opportunity then there must have been a right to be heard in the first place. What is the
point of having an appeal if the house is demolished.
BylesThe Board=s actions were judicial and there was a right to be heard. The Court
may Asupply the omission of the legislature@ where the statute is silent.

18. The role of the court is to help out the Aforgetful legislature.@
19. Legislation spoke indirectly that the common law applies where hearings are required
when an individualized decision affects someone=s property.
20. Common law power of judges to require a hearing unless the legislation speaks explicitly
on the subject.

Nicholson v. Haldimand-Norfolk (S.C.C. 1979)

Facts:
 Nicholson served as a constable for 15 months and was discharged by the
board without being given the opportunity to make decisions. He had a
probationary period of 18 months.
 This was a case of judicial review
 The Court of Appeal used the exrpessio unis rule and stated that a person with
18 months gets some protection but someone without 18 months does not get the
protection.

Disposition: There should be some protection.

Legal Reasoning:

 The SCC found that he could not be given all the protections of a person with 18
months by found that he could not be arbitrarily denied some protection. He had to
be Atreated fairly not arbitrarily.@
Laskin J.
 The distinction between judicial, quasi-judicial and administrative is often difficult
and may lead to injustice where some are entitled to procedural protection while
others are denied (which can result in the same consequences)
 If the matter is quasi-judicial, administrative or executive there is a duty of
fairness.
 Fairness in general it means a duty to observe the rudiments of natural justice
for a limited purpose in the exercise of functions that are not analytically judicial but
administrative.
 Conclusion Nicholson faced the same serious consequences as an officer who
had 18 months. He was given no reason for his dismissal and was not afforded the
opportunity to respond.

Martland J. (dissent)
 The whole point behind a probationary period was that someone could be let go
without any particular reason. As such, the Board did not breach a legal duty
because there was no duty to give a reason or to give him, or any other
probationary officers, the opportunity to be heard.
*Prior to Nicholson, if something was administrative you got no procedural fairness.
After, there may be a duty to act fairly even if the context is administrative. So after
Nicholson there is an opportunity (verging on a presumption of fairness in
administrative contexts.)

Martineau v. Matsqui Inmate Discipline Board (SCC)

Facts:
 This was a case that was decided after Nicholson. The case involved prison
discipline. Before Nicholson persons in prison did not have rights. Martineau=s
primary concern was with a preliminary issue where it was not certain whether the
allocation of original judicial review between the Trial and Appeal Divisions of the
Federal Court.

Disposition: There was a duty to act fairly.

Legal Reasoning;
Dickson J.

21. The fact that a decision make does not have a duty to act judicially does not mean that
there may not be a duty to act fairly.
22. An inmate disciplinary board is not a court. It is a tribunal which is nonetheless subject to
a duty of fairness and a person aggrieved through a breach of duty is entitled to seek
relief from the Federal Court, Trial Division, on an application for certiorari.
23. It should be emphasized that not every breach of prison rules of procedure will bring
intervention by the courts. Interference will not be justified in trivial cases.
24. It is wrong to regard natural justice and fairness as distinct and separate standards.
Fairness involves compliance with only some of the principles of natural justice (which
vary according to the circumstances.)

M.N.R. v. Coopers & Lybrand (1979)

The following criteria will determine whether a decision is to be made on judicial or quasi-
judicial basis:

25. Is there anything in the legislation that suggests that a hearing is contemplated?
26. Does the decision or order directly affect the rights and obligations of persons?
27. Is the adversary process involved?
28. Is there an obligation to apply substantive rules to many individual cases rather than the
obligation to implement social and economic policy in a broad sense?

Board of Education v. Knight (S.C.C. 1990)

Facts:
 The Board dismissed the director of education when he refused to accept a
renewal of his contract for a shorter term than the original. He claimed wrongful
 dismissal. The Board claimed that they did not need to show cause since he was
the holder of an Aoffice at pleasure.@

Issue:
 Is someone who holds an office at pleasure entitled to procedural fairness?

Disposition: He was afforded minimal protection.

Legal Reasoning:
 Knight knew that he was to be dismissed and he knew why. The fact that a
formal hearing did not take place was not critical in this case. The aim was not to
create procedural perfection: but to achieve a certain balance between the need for
fairness, efficiency and predictability of outcome.
 When analyzing a duty to act fairly we have the master/servant relationship and
then all the other types of employment relationships (the court grouped them
together)

L=Heureux-Dube J.

 The loss of public office has a significant impact. At private law if you were
traditionally let go it was because you deserved it. An office should be accorded
minimal protection.
 Minimal Protection includes:
1. Know why he was dismissed.
2. Have an opportunity to convince them otherwise.
 She found that this position had a strong statutory flavour and as such it was
more of a public office than a private contract type context.
 Why should a hearing be held in this context?
3. Better decision-making. Should he be let go?
4. A check on public power/force them to give reasons.
5. It accords with our sense of justice.
 This case was different than Nicholson since in Nicholson there was a case
against him and there were allegations that he had done something wrong that
warranted letting him go.
 She thinks that the employer has to be displeased to let him go. The process
was hearing from him and the substance was displeasure.

Sopinka J.

 Where L=Heureux-Dube looked to an implied common law duty to act fairly and
then to the legislature to see if that duty was restricted, Sopinka would have looked
to the statute first and then to the contract to see if Knight was an exception to the
general rule (the general rule being that an office at pleasure does not have a duty
to act fairly attached to it.)
 He does not think that any case has to be made against the employee even
displeasure to let him go.

Emergencies:
On occasion there will be no requirement of a prior hearing, i.e., in the case of
emergencies. R. v. Randolph (page 74) the court held that an interim order withdrawing
mail services from an individual because they believed that the mail was being used for
criminal purposes was okay. What was significant is that the action in question is only
interim and is open to reassessment in the context of a subsequent hearing. This will
happen where there is:

29. Strong public interest.

30. Great potential for harm.
31. Good reasons for expeditious action.
32. Nature of who is making the decisionCif it is more executive in nature (the minister) it
will be more accepted than a low level servant.
33. Action is interim and process will be accorded later.

Some long-term rights may be affected by emergency decisions. Consider the destruction of
property. In particular, animals may be destroyed (mad cow disease is a good example) in order
to prevent the spread of disease.

Inuit Tapirisat (SCC 1980)

Facts:
 The CRTC made a decision and the Governor in Council approved it. Had to do
with telephone rates. Inuit Tapirisat wanted notice of what Transportation and Bell
had submitted. They want a right to respond B might influence the Cabinet.
 The argument in this case was that if you are going to be affected personally
then you should have the opportunity to know what is going to Cabinet and respond
to documents that will influence the Cabinet.

Issue:
 Can the Cabinet be judicially reviewed?

Disposition: The Cabinet could not be reviewed.

Legal Reasoning:

Estey J.
 He looks at what the Cabinet can be reviewed for. He reviewed for jurisdictional
error to see if the Cabinet had followed instructions in the Act (i.e., conditions
precedent).
 The CRTC has key decisional criteria (just, reasonable, discriminatory) which are
flexible. For Cabinet, when they hear an appeal under s.64 they do not have any
decisional criteria. The Cabinet is a closed forum and they have broad powers to do
whatever they want.
 The Cabinet can consider any Apolitical, economic, and social concern of the
moment.@
  Estey did not give any process rights. The key factor was that the statute spoke
only of broad powers vested in the Cabinet. This was a pure legislative action and
the Cabinet was making rules not determining the rights of individual parties.

FAI Insurance (1982)

Facts:
 The Cabinet issued a licence which was a way of avoiding judicial review. FAI
provided insurance for 20 years on an annual renewable basis. It was warned that
the Minister was going to recommend that they not be renewed. FAI made a request
for more information and the opportunity to make submissions. These requests
were refused.

Disposition: FAI is successful.

Legal Reasoning:

 FAI succeeded based on a Alegitimate expectation@ of renewal based on the

succession of prior approvals. This is a way of getting around the Aright@ to a
renewal.
6. Application for a benefit.
7. Renewal of a benefit.
8. Cancellation of a benefit.
 The argument that Cabinet is totally unsuited to hear an appeal was not an
excuse. They could have formed a sub-committee who would decide and bring it to
the group.
 The most important fact is the nature of the decision; however, this does not
mean that we will not consider the nature of the deciding body. As such, the process
may be tailored to suit the nature of the body (here, the Cabinet.)

Homex Realty (1980)

Facts:
 A registered plan of a subdivision was required in order to divide land. Homex
had a registered. Homex and the municipality were negotiating basic services. The
municipality deregistered the land without telling Homex which meant that it was not
able to sell the land.
 The municipality said that if they had warned Homex then Homex would have
checkerboarded (practical argument)

Disposition: Homex is successful

Legal Reasoning:

 If checkerboarding is a problem the legislature should address it. This cannot be

used as an excuse to deny procedural rights.

Estey J.
  The majority said that Homex was not entitled to relief because of the
inconsistent and evasive conduct of its principles. He looked at the statue first and
found that the audi alteram partem had not been displaced. He concluded that the
council=s action was not legislative but rather quasi-judicial in character., thus
attracting audi alteram partem (implies a common law bill of rights.
 Homex=s interest was real property. The common law places a high importance
on real property. The right to alienate land is an important common law right. Homex
had its right to convey land removed. The result might have been different if the
interest had been something other than real property.
 Homex is entitled to fairness but not procedural relief because of how they
acted. This shows that the Court has discretion under Rule 69 to grant remedies.

Dickson J. (dissenting)

 The village was cloaking something legislative in order to dispense with fairness.
The distinctions between judicial and quasi-judicial are no longer needed. The by
law was specific and targeted Homex. They were entitled to some safeguards. At a
minimum he should have been given notice and an opportunity to be heard.

Normally under legislative or policy-making actions you do not have a right to

participate, but you have to go through the analysis to make sure that it is not quasi-
judicial or there is a reasonable expectation of consultation.

Decisions about hearings are often not simply about whether there should be a hearing
but also who should be entitled to participate.

Bezaire v. Windsor Roman Catholic School Board (1992)

Facts:
 9 schools were closed. The Board=s own guidelines said that the community
should be consulted. They were consulted after the decision had been made. The
guidelines did not have the status of law.

Disposition: The community should have been consulted.

Legal Reasoning:

 The guidelines produced an expectation that the community would be consulted.

The nature of the impact is the social, cultural and recreational impact.
 The guidelines lacked the force of subordinate legislation but they raise the
applicability of fairness. The idea behind this is that the guidelines are based on the
idea that a school closing is the business of the community and the community must
be consulted (i.e., a condition to a valid school closing).
 Procedural fairness was due and it had been denied.
 The Vanderloet case was one in which a reorganization of schools did not
constitute a school closing and as such, the doctrine of fairness did not apply.
Canadian Association of Regulated Importers (1993)

Facts
 A ministerial decision changed the quota distribution system for the importation
of hatching eggs and chicks, a change which affected historic importers.
 The historic importers argued that they had not been consulted.

Disposition: The importers were not successful

Legal Reasoning:

Reed J. (Trial)

 Reed said they were a limited portion of the population and it would have been
easy to conduct them. Some procedural rights were due and they were not given.
 An interest as opposed to a right was sufficient in this case. R. v. Liverpool says
that a policy decision is not necessarily immune from judicial review.

Linden J.A. (Court of Appeal)

 Generally the rules of natural justice are not applicable to a legislative or policy
decision. Courts usually show deference to such decisions.
 Any remedy would be political and not legal.
 There was no public consultation requirement in the legislation. The government
could have put it in but they didn=t. (This is the opposite position from Estey in
Homex)

Idziak v. Canada (Minister of Justice) [1992] 3 SCR 631 (Ont.)

This case dealt with the limits of procedural protection in the context of individualized
decision making. Here the claim advance was that the Minister of Justice had an
obligation of procedural fairness in deciding whether to actually surrender a person to a
foreign power after a deportation order had been made. In describing this function as
Abeing at the extreme legislative end of the continuum of administrative decision
making,@ Cory J made it abundantly clear4 that there was not a clear dichotomy in the
Court=s mind between Alegislative@ decisions adnd decisions which have as their
target a particular kind of individual. Nonetheless, he did accept that the Minister had a
duty to act fairly and the majority of the Court also accepted that the relevant
confidential memorandum from an in-house lawyer contained no new prejudicial
information. La Forest took the position that the Minister was dealing with a policy
matter and was entitled to exercise discretion.

Page 99

Webb may be seen as progressive in that it al least recognizes that the holders of
various forms of state assistance are entitled to some measure of procedural fairness
before assistance is cut off or removed. They are no longer prevented from making
such a claim on the basis that government benefits are a matter of privilege as opposed
to right. Seen in this light, cases such as this expand the reach of procedural fairness
law beyond the traditional category of property rights.

Calgary Power v. Copithorne (1959)

The power company was going to put cables over a farmer=s land. The farmer should
be consulted because there might be minor route variations and he knows his land
better than anyone else. One spot might be better than another.

Re Webb and Ontario Housing Corporation (1978)

Facts:
 A tenant was warned that she could be convicted if her children remained a
problem. She was evicted.

Disposition: She is not successful

Legal Reasoning:

 Mrs. Webb had a right to be treated fairly but the Ontario Housing Commission
had fulfilled its duty to treat her fairly.
 The court compares social assistance (if you fit the criteria you have a right) with
subsidized housing (it is not a right even if you do qualify). There is a certain amount
of discretion with subsidized housing because there is not enough for everyone who
wants it.
 Once you have it is different from getting it. Once they remove her she has lost a
real and substantial benefit. This case got to court under an application for review
because the court felt that there was enough of a public aspect to bring in Anatural
justice@ even though she was not able to bring the OHC under the Statutory Power
Procedure Act.

There is an argument now that procedural rights are being extended beyond traditional
property rights into government benefits. Government benefits are not privileges
anymore. They are still ranked with some benefits being more important than others.

Inuit Tapirisat gave us three things to consider and Re Webb gave us one more:

34. The nature of the authority.

35. The nature of the power.
36. The consequences of those who will be affected. (Impact)
37. The nature of the relationship between the authority and the individual(s) affected.

1. The decision was administrative in nature and not judicial or quasi-judicial.

2. This was a case of a public corporation exercising its rights and looking out for its
interests.
3. With respect to notice it was held that as long as the person adversely affected is advised
of the case against him and is permitted to give an answer through the servants or agents
of the investigating body, that is sufficient, unless there is evidence of improper bias on
 the part of the servant or agent or evidence that the answer, if made, did not reach the
body making the decision or determination.
4. The Ontario Housing Commission was under a duty to treat the appellant fairly and
established that the appellant had been treated fairly in this case.

McInnes v. Onslow-Fane (1978)

What if someone does not have a benefit and applies for it and does not get it. E.g., a boxing
license. McInnes puts these type of decisions into three categories.

38. Forfeiture Cases

A decision which takes away some existing right or provision. The right to an unbias
tribunal (Ridge v. Baldwin), the right to notice of the changes (Ridge, supra) and the
right to be heard (Ridge, supra)

39. Intermediate Aexpectation@ cases

Akin to a forfeiture case (e.g., FAI Insurance)

40. Application Cases

Decision-maker refuses to grant a right or a position. Where there is no statutory or
contractual obligations, just the discretion of the licensing body, then there are no
obligations on that body to give reasons.

McInnes brought this action to court so he could get a declaration. The problem with a
declaration is that there are no enforcement measures. The court showed judicial deference in
acknowledgement that these people know much more about boxing than they do. If there is
some sort of slur, the courts might be willing to impose procedural rights even on a declaration.
This was a private matter and the courts are reluctant to interfere in private sphere. The most you
get in private matters is a duty on the part of the board to reach an honest conclusion without
bias.

Why don=t the court require administrators to give reasons?

They don=t require administrators to give reasons because they don=t impose this requirement
on themselves. Courts routinely dismiss appeals and award costs without giving reasons.

In general if a license is being taken away for cause there will be an obligation of procedural
fairness, more often than not requiring a hearing at the high end of the scale. (Page 107)

Hutfield v. Board of Fort Saskatchewan General Hospital (1986)

Hutfield is distinguished from previous cases denying procedural protections to Aprivilege

seekers@ on the basis of the existence of strong indicia in both the statute and the by-laws of
the need for a hearing. Here there was a local doctor who qualifies for hospital privileges but is
denied access. He thinks that he has a right to know why and an opportunity to refute any
accusations. Here there is not expectation interest at all. The most that he has is a hope.
The key decision criteria of the Hospitals Act by-laws include credentials, training, experience,
etcY Does a rejection cast a slur on his reputation? He was rejected based on these decisional
criteria so it suggests that he is incompetent. In McInnes he was just another applicant who was
rejected. This is different from this type of case. Hutfield is more than another applicant because
he is a professional who depends upon his reputation.
The court finds that his professional interests have been aversely affected and a slur has been
cast on his reputation because he was rejected in light of these decisional criteria. (s.11(3)). In
this case, they extent rights to someone who only has a hope.

Re Abel and Director (Mental Health Centre) (1979)

Facts:
 The lawyers for some mental patients, in preparation for a review for release
wanted to review the patients files. The institution refused and said that they had no
jurisdiction to release the files because of the statute. The Board also refused to
intervene.
 The lawyers brought an application.

Disposition:
 The applicant was granted because the Board failed to meet the test of fairness.

Legal Reasoning:

 A fundamental rule of justice is that a party must have an adequate opportunity

to know the case he has to meet, of answering it and putting his own case forward.
If a patient does not get a favourable recommendation he or she potentially faces a
lifetime of incarceration.
 The real problem was whether the Chairman of the Board failed to even consider
whether the reports on the patients should be disclosed to the applicants. Cases
such as Nicholson and Webb reaffirmed the duty of fairness required of all persons
exercising power even though it may be administrative as opposed to judicial or
quasi-judicial.

Conclusion:
 The outcome was a quashing and remission back to the tribunal for
reconsideration. It implies a deference and not a Acorrectness@ standard. No real
substantive advice was given. It was just remitted. Not all recommendatory or
investigative functions will atrtact an obligation of procedural fairness. The case
looks at whether maybe the effect or locus is at the preliminary stage as opposed to
the hearing/executive stage.
 The bottom line is that these reports are influential. The effect of locus here is
that most likely that a decision being made at the recommendation level where there
is no participatory rights will have a large effect.

Process:
9. Look at what the effect of a favourable versus non-favourable recommendation?
10. What is the degree of proximity?
The proximity here is between:
  The investigation (where the files are created at the institution).
 The decision of the board.
 The exposure of the person investigated.

What other reasons might disclosure be refused?

Therapeutic PrivilegeCthere may be some instances where a patient should know how
sick he is. A blanket refusal to release information is unaccepted. Therapeutic privilege
is a concern only.

Re Munro (1993), 105 D.L.R. (4th) 342 (Sask. C.A.)

The court held that the Executive Committee of the Saskatchewan Teacher=s
Federation was obliged to afford Munro procedural protections before it recommended
to the Minister of Education that he or she not accept the recommendations of the
Federation=s Discipline Committee that Munro be suspended from teaching for five
years but rather cancel his teaching certificate. Despite the fact that the Executive
Committee was bound by the Discipline=s Committee finding of fact, the court held that
the Executive Committee had failed in its duty of procedural fairness by not providing
Munro with a copy of the Discipline Committee=s report and recommendations and an
opportunity to address the issue of sanctions.

Irvine v. Canada (Restrictive Trade Practices Comission) [1987] 1 S.C.R. 181

(Can.)

Facts:

Under the Combines Investigation Act, there was provision for a two stage
process in relation to suspected unlawful trade practices. The first stage was in
the form of inquiry conducted by a hearing officer appointed by the Chair of the
Commission. This produced a report which was submitted to the Commission
which then had to decide whether a full-blown public inquiry was indicated. The
hearing officer proceeded in camera and, in several other respects, did not
normally adhere to what are generally considered to be elements of the rules of
natural justice or procedural fairness. This form of proceeding produced a
challenge which went to the Supreme Court of Canada.

Disposition: The appeal was dismissed

Legal Reasoning:
Estey J.

Χ The entire administration of the Act is done in private except where the
publication of the Commission=s report or the conduct of Commission hearings
is directed, and the conduct of prosecutions.
Χ Neither s.20(1) of the Act or the doctrine of fairness provided the
appellants with the right to cross-examine at the inquiry. Fairness is a flexible
 concept and its content varies depending on the nature of the inquiry and the
consequences for the individuals involved.
Χ The investigating body must control its own procedures. When that body
has determinative powers, different considerations enter the process. The case
against the investigated must be made known to him. This is provided for in the
Act at each of the progressive stages of the inquiry.
Χ There is no basis for the operation of a writ of mandamus with respect to
the Hearing Officer. He was present and ready to preside over the examination
of the witness Krirch. Nothing else was required of the hearing officer under the
statute.

Ratio:
5. Those persons being investigated were not entitled to be present Athroughout the
whole inquiry.@
6. Counsel for the applicants, be the witnesses or persons being investigated, may not
examine or cross-examine witnesses in the inquiry except that they may put
questions to their client for the purpose of clarifying and explaining information
already given.
7. Counsel for the applicants may could not put questions to Kirch (one of the
witnesses), and the Hearing Officer is neither required nor permitted to allow
counsel for the applicants to examine Kirch or require the Director to do so.
Page 124

What seems clear from Irvine is that the investigation in question was one that did
involve some, albeit limited participatory rights for those affected. In contrast, where the
statute simply establishes an investigative capacity , there is much more of a possibility
that the courts will see this capacity as being the equivalent of police investigative
powers now giving rise to any Ahearing@ entitlements on the part of those Aunder
suspicion.@

Legitimate expectation creates process rights as opposed to substantive rights. There are
two approaches:
1. Conduct
2. Interest Vesting

What do we have thus far?

Not suppose to create substantive rights.

Not suppose to apply to legislative functions.
You must consult with affected people before you change the playing rules.

Reference Re Canada Assistance Plan (1991)

This dealt with the provincial/federal cost sharing of social and welfare programs. There
is no support for the idea that legitimate expectation creates substantive rights (i.e., need
someone=s consent.) It just allows for consultation.

The rules governing procedural fairness do not apply to a body exercising purely
legislative functions. The policy reason for this is that the government would not be able
to function. The court does not want to interfere with the legislative process. The
government is entitled to change its mind. Because this was legislative there was no right
to prevent the government from changing the law.

Furey v. Roman Catholic School Board (1991)

The decision here was administrative not legislative. Because the board had consulted the
community in the past it created the expectation that the community would be consulted
again. As such, the decision to close the school lacked the requirements of procedural
fairness.

Haoucher v. Minister of Immigration (1990, Australia)

This case dealt with the deportation of a criminal from Australia. The Minister issued
guidelines allowing a deportee the right to an appeal. The policy also stated that a
recommendation by the appeal tribunal to the Minister would occur only in exceptional
circumstances. The Minister gave reasons for overturning the tribunal but they were not
exceptional. The deportee had an expectation that a favourable tribunal
decision/recommendation would not be overturned. The deportee was entitled to an
opportunity to persuade the Minister that his reasons were not exceptional.

National Anti-Poverty Association v. A.G. Canada (1988)

Facts:
 At trial, they used s.2(e) of the Bill of Rights to give procedural rights for a
Cabinet appeal. They claimed that they were not bound by the Inuit Tapirisat
case because the Bill of Rights was not argued there and it was here.

Outcome:
 The appeal court said that the Bill of Rights did not apply here because it
only orders a fair hearing when Arights and obligations@ are affected. Here
there was no right or obligation to give a particular rate of service.

Singh (1985)

Facts:
 The appellants were all convention refugee claimants who were landed in
Canada. Under the procedure then in place, the minister, acting on the
advice of the Refugee Status Advisory Committee (R.S.A.C.), had
determined that they were not convention refugees. They all then applied to
the Immigration Appeal Board for a redetermination of their status. However,
the applications were not referred to an oral hearing because the board
determined on the strength of the material submitted by the applicants that
there were no reasonable grounds for believing that they could establish their
claims at a hearing.
 The appellants then applied to the FCA for review of the Board=s
decision alleging that the statutory scheme infringed section 7 of the Charter.
The applications failed and the appellants secured leave to appeal to the
SCC. After the conclusion of oral argument in the SCC the parties were
director to make further written submissions on whether the statutory scheme
was consistent with section 2(e) of the Canadian Bill of Rights.

CustomsT SIO Minister RSAC Minister IAB

Customers Interview
Immigration
Appeal
Officer

Board

Legal Reasoning:
Wilson J.

 The right to life, liberty and security of the person is not a single right but
is made up of distinct elements. There is a difference between challenging
the means (substantive) as opposed to challenging the end. The courts are
only suppose to challenge the means.
 What are Singh=s problems with the whole process?
3. No right to an in-person hearing.
4. No right to review the ex parte evidence.
5. No right to the evidence of the Minister before it goes to the
ASAC committee.
 Section 1 Analysis
11. On a global standard we treat refugees good.
12. There would be a great strain on administrative expedience/convenience.
13. Canada got UN approval for our treatment of refugees.
 When is an in-person hearing required?
When we have an issue of credibility. Here the evidence relates to a foreign
country as well as to this person in particular (is he a criminal or freedom
fighter?) On one end we have objective and scientific questions and other the
other we have subjective evaluations. On the latter we need face-to-face
encounter to best assess credibility. Evidence may be adjusted appropriately
in a face-to-face encounter when the issue is subjective and intuitive.
 The scheme inadequately provides an opportunity for a refugee to state
his case and know the case that he has to meet.

Beetz, Estey and McIntyre J.

 They apply the Bill of Rights instead of the Charter. They think that s.2(e)-
rights and obligations is more appropriate here because it would not be
Canada which would be imposing the deprivation of rights. This is opposed to
s.1 which is very narrow.
The Bill of Rights
It is a federal statute and only applies federally. It does not apply to provincial
statutes or decision-making jurisdiction. It does not apply to functioning bodies
made under facilitative legislation (e.g., CBCA). The reach of the Bill
corresponds to that of judicial review under the Federal Court Act.

The Charter

This applies throughout Canada but is restricted to the Parliament and

Government of Canada, the legislatures and the governments of the provinces.
It only applies to administrative bodies which can be brought within the concept
of Agovernment@. McKinney v. University of GuelphCuniversities are not
government. The Charter does not apply to bodies that are facilitated by statute,
e.g., corporations. It is uncertain whether professional governing authorities and
their disciplinary arms fall under the Charter.

The Bill of Rights provides broader procedural protections than the Charter
because of three differences between the two.
 41. The term Aindividual@ and Aperson@ in the Bill allows the possibility for
corporations to get the benefit of s.2(e) whereas the word Aeveryone@ in the
Charter restricts protection to people not corporations.
42. Only the Bill protects property.
43. Bill s.2(e) gives procedural guarantees to the Adetermination of rights and
obligations@. This provides a substantive impact. NAPO clarifies that rights and
obligations are not synonymous. This has been held to apply to investigations and
hearings of a complain of discrimination under human rights legislation. There
are five interests which attract the common law. (1) rights (2) interests (3)
obligations (4) privileges (5) legitimate expectation.

Chiarelli v. Canada (Minister of Justice) (1992)

Facts:
 This appeal called into question the constitutionality of the statutory
scheme providing for the deportation of a permanent resident on conviction
of a serious criminal offence. The main appeal concerned the removal of a
ground of appeal from a deportation order and the procedure by which that
removal is effected. The cross-appeal attacked the general statutory
scheme.
 The Review Committee conducted the required investigation and held a
hearing. Prior to the hearing respondent was provided with a document
giving background information as to the hearing and summaries of
information. A summary of the evidence taken in in camera proceedings of
this hearing and provided to respondent indicated that evidence was led that
respondent, together with certain named individuals, was a member of a
criminal organization which engaged in extortion and drug related activities
and that respondent personally took part in the extortion and drug related
activities of the organization.

Disposition:
 The appeal should be allowed and the cross-appeal dismissed. With
respect to the main appeal, assuming without deciding that s. 7 is
applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or
deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and
Freedoms and reliance upon the certificate authorized by s. 83 of the
Immigration Act, 1976, did not result in an infringement of s. 7 having
regard to the process followed by the Security Intelligence Review
Committee. With respect to the cross-appeal, the requirement that
persons convicted of an offence carrying a maximum punishment of five
years or more be deported, without reference to the circumstances of the
offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming
without deciding that these sections applied.

Legal Reasoning:

 The Court must look to the principles and policies underlying

immigration law in determining the scope of principles of fundamental
justice as they apply here. The most fundamental principle of immigration
 law is that non-citizens do not have an unqualified right to enter or remain
in the country. The common law recognizes no such right and the
Charter recognizes the distinction between citizens and non-citizens.
While permanent residents are given the right to move to, take up
residence in, and pursue the gaining of a livelihood in any province in
s. 6(2), only citizens are accorded the right "to enter, remain in and leave
Canada" in s. 6(1). Parliament therefore has the right to adopt an
immigration policy and to enact legislation prescribing the conditions
under which non-citizens will be permitted to enter and remain in Canada.
It has done so in the Immigration Act.

 A deportation scheme applicable to permanent residents, but not to

citizens, does not infringe s. 15 of the Charter. Section 6 of the Charter
specifically provides for differential treatment of citizens and permanent
residents in this regard. While permanent residents are given various
mobility rights in s. 6(2), only citizens are accorded the right to enter,
remain in and leave Canada in s. 6(1).
 The scope of principles of fundamental justice will vary with the
context and the interests at stake. Similarly, the rules of natural justice
and the concept of procedural fairness, which may inform principles of
fundamental justice in a particular context, are not fixed standards. In
assessing whether a procedure accords with fundamental justice, it may
be necessary to balance competing interests of the state and the
individual.
 In the context of hearings conducted by the Review Committee
pursuant to a joint report, an individual has an interest in a fair procedure
since the Committee's investigation may result in its recommending to the
Governor in Council that a s. 83 certificate issue, removing an appeal on
compassionate grounds. However, the state also has a considerable
interest in effectively conducting national security and criminal intelligence
investigations and in protecting police sources.

Wilson v. Medical Services Commission of BC (1988)

Facts:
 Under the B.C. medical plan doctors bill the government for treatment
given to patients. The scheme limited the number of doctors to particular
geographic regions for the purpose of controlling the total cost of health care
services.

Disposition:

Legal Reasoning:

 What rights does a doctor have in terms of liberty? To practice profession

subject to regulations so long as they are reasonable. The regulations here
were seriously flawed.
 Section 7 gives you a right to pursue your chosen profession without
unreasonable interference of the government. The key term here is
 Aprofession@ which stands as a long-standing characteristic in Canada. If it
had been some other type of job it would be unlikely that it would have been
protected under section 7.
 Liberty does not include a pure economic right. It does not include a right
to a job, a right to be free from government regulation.

Justice Lamer in Ref re ss. 193 and 195(1)(c ) of the Criminal Code (1990)
disagreed with some of what was discussed in Wilson. He said that s.7 arises
when the State restricts an individual=s physical liberty in any circumstances.

Nisbett v. Manitoba (Human Rights Commission) (1993)

This was an appeal from a judgment staying proceedings on a discrimination

complaint because of an excessive delay in the processing of that complaint to
the commission. Section 11 of the Charter was not used hear since section
11only applies to criminal or quasi-criminal proceedings. The trial judge ruled
that section 7 applied but the Court of Appeal overturned his decision. The Court
of Appeal found that section 7 had no application to the proceedings of a non-
penal nature under human rights legislation. It is not really suppose to be like a
criminal trial it was more conciliatory. Enforcement is only a last resort and it is
enforced by entering the Commission=s decision with the court and turning it
into a judgment (with all of its accompanying remedies.)

When should reasonableness be the standard?

44. Level of expertise.

45. When looking at its own statute.
46. Is there a privative clause (exclusionary clause, no-certiorari clause)
47. The appointment process (are the appointed persons qualified or not)

Chapter Three

The Choice of Procedures

Introduction

Goldberg v. Kelly

Matthews v. Eldridge

Pre-Hearing Issues
Discovery

Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into

Northwestern General Hospital)

CIBA-Geigy Ltd. v. Canada (Patented Medicine Prices Review Board)

Delay
Nisbett v. Manitoba (Human Rights Commission)
The Actual Hearing
Oral Hearings

Hundal v. Superintendent of Motor Vehicle

The Right to Counsel

Re Men=s Clothing Manufacturers Association of Ontario

Re Canada (Canadian Transportation Accident Investigation and Safety Board)

Howard v. Stony Mountain Institution

Access to Agency Information

Re Napoli and Worker=s Compensation Board

Identity of Sources of Information

Gallant v. Trono, Deputy Commissioner, Correctional Services Canada

Gough v. Canada (National Parole Board)

R. v. Norfollk County Council Social Services Department, ex parte M.

Same type of analysis:

48. Look at the nature of the impact.

49. Look at the nature of the interest.
50. Look at the statute.

Goldberg v. Kelly (1970, U.S.)

The type of procedure here is called Anotice and comment@. You get to comment on
paper before they will act. After the administrative action you get to a full trial-type
hearing. The question is whether this is constitutional in the administrative law context.
The court says no. The individual is entitled to virtually a full hearing.

Why do these people need a full hearing?

If you cut them off now and supply them with procedures later they may not make it.
They rely on payments to survive. They may not be able to communicate well on paper
due to a lack of education. They may not be able to afford a lawyer because of income.
They cannot adjust their presentations unless they have a face-to-face oral hearing. This
is important with respect to credibility. The caseworker is the source of the negative
information about them so it is unrealistic to expect a caseworker to help them prepare a
written submission. These people deserve to be treated with dignity and intergrity.

Interest Balancing:
 This may be something that society owes these people as opposed to
charity. The court does not buy the argument that administrative efficiency
and expense would be too great.
  The government says that the interim period in which they get benefits
when they may not be deserving will be gone fo0wever. The court says that
they could likely create a pre-hearing which would be efficient enough to
minimize the number of underserving.

Mathews v. Eldridge (1976, U.S.)

Facts:
 Eldridge challenged the procedures for termination of disability benefits
under the Social Securities Act. The decisional criteria was whether a worker
can demonstrate that he or she is unable to engage in any substantial gainful
activity by reason of any medically determinable or physical or mental
impairment. They also had a paper hearing, notice and comment type
process. Eldridge could possibly have to go 1 year without any benefits.

Disposition: The notice and comment procedure is sufficient.

Legal Reasoning:

 The notice and comment procedure is sufficient. There is medically

determinable information, it is objective and scientific. The impact is less
because it is based on something other than financial need and there are
other forms of assistance like welfare.
 What is the nature of the interestCa temporary suspension/deprivation of
a benefit that is retroactive if you are reinstated.
 An in-person hearing is less useful in terms of probative value. The
documents are more useful than an oral presentation. The public interest of a
hearing is addressed. They find that the process here is adequate when
looking at the costs of a full hearing. The impact is not as high as in the
Goldberg case.

Discovery:

Discovery is a relatively new concept in Canadian administrative law. There are

to limits on discovery and disclosure. (1) privilege and (2) relevance

Privilege:
Solicitor-client, spousal privileges, solicitor work product (litigation privilege),
without prejudice letters (usually info disclosed in an attempt to settle), Crown
privilege/executive privilege (e.g., national security), commercially sensitive
privilege, diplomatic privilege, self-incrimination privilege, public interest privilege
(usually used in context dealing with youths)

Ontario (Human Rights Commission) v. Ontario (Board of Inquiry Into

Northwestern General Hospital) (1993)

Facts:
 10 nurses complained about racial discrimination and the Board of Inquiry
wanted all statements made by the complainants to the HR Commission as
 well as the identities of any witnesses interviewed. The HR Commission
appealed.

Legal Reasoning:

 Discovery likely leads to settlements in both the criminal and/or

administrative law contexts. To the extent that settlement occurs it will
happen at the pre-hearing stage.

 Two aspects of discovery:

14. Discovery of the regulator (slightly like disclosure).
15. Discovery of other parties

 The important point is that Stinchcombe does not apply to the

administrative law context but it does provide an analogy. Stinchcombe said
that the principle of disclosure is already a part of the duty of fairness as set
out in Nicholson. Stinchcombe said that one must know the case one must
meet. The Afruits of investigation@ belong to the public and surprise is not
an appropriate weapon in the adversarial process. Disclosure must not be
perfunctory, it must be complete, subject only to privilege or relevance.

CIBA-Greigy v. Canada (Patented Medical Prices Review Board) (1994)

Facts:
 This appeal dealt with the disclosure involving documents controlled by
the Board. The Board had a scheduled meeting to determine whether the
drug Habitrol marketed in Canada by the appellant was being sold at
excessive prices.

Disposition:
 There was no requirement to release the material as in Stinchcombe.

Legal Reasoning:

 The staff are being protected. If their documents are disclosed then it
would inhibit free and frank disclosure. Some think that even speculation is
valuable at the investigation stage. More important is that it politicizes the
staff.
 The sanction here is only money and their reputation will not likely be
impacted.

Nisbett v. Manitoba (Human Rights Commission) (1993)

The criminal law presumes unreasonableness as a function of time (delay

argument). In administrative law there is no presumption. There is a three part
analysis when looking at the issue of delay.

51. Whether the delay complained of is prima facie unreasonable, having regard to
the time requirements inherent in such a remedial proceeding.
 52. The reason or responsibility for the delay, having regard to the conduct of the
complainants.
53. The prejudice or impairment caused to the alleged discrimination by delay.

As a practical matter judicial review should only be involved when there has been an
abuse of process. Courts should not hear a delay argument as an independent challenge.
The delay issues should be heard by the admnistrator or regulator and decided upon.

Re Mens Clothing Manufacturers Association of Ontario

Facts:
 Disputes in the men=s clothing industry were resolved by arbitration and
the process had been conducted without lawyers. The Association wanted a
lawyer. The arbitrator summarized the common law position with respect to
the right to counsel and found that counsel could not fully participate in the
hearing on the merits of the case but could participate to a limited etent.
 Common law position on the right to counsel.
16. Neither in courts or other forums is there an absolute right to counsel regarded as
an indispensable feature of natural justice.
17. Generally, legal representation is desirable, and the exercise of discretion by the
tribunal should favour it.
18. There may be some circumstances where the participation of counsel is hurtful to
the functioning of the tribunal
 The association appealed.

Disposition: The appeal is allowed

Legal Reasoning:
Southey J.

 He looks at the common law and because the right to counsel has not
been removed he presumes that it exists. He looks at three things: impact,
legal complexity and capacity.
 None of the parties in this proceeding were natural persons. The only way
that they can appear is by a natural persons acting as their agents. By ruling
that they could not be represented by legal counsel the arbitrator limited their
choice of agents. Unless there was a rule in the collective agreement
restricting what type of agent that could represent the parties the Association
could be represented by a lawyer.

Re Canada (Canadian Transportation Accident Investigation and Safety

Board)

Facts:
 The captain of a ship was involved in a collision with another ship. The
investigator refused to allow the captain to have counsel at the hearing. The
captain refused to testify.
Issue:
 Can the Board require the captain to attend and give evidence under oath
without legal counsel?
Disposition: The captain is entitled to legal counsel.

Legal Reasoning:
Rouleau J.

 He said that the procedure in this case was different than Irvine. The
scope of fairness depended upon three principles: (1) consequences of the
inquiry (2) nature of the inquiry (3) repercussions of the individual=s
involved.
 The duty to act fairly implies the presence of counsel when some of the
following elements are found within the enabling legislation or implied from
the practical application of the statute governing the tribunal:
19. Where an individual or witness is subpoenaed, required to attend under oath with
a threat of penalty.
20. Where absolute privacy is not assured and the attendance of others is not
prohibited.
21. Where reports are made public.
22. Where an individual can be deprived of his rights or livelihood.
23. Where some other irreparable harm can ensue.

SCC

 Tribunals are masters of their own procedure. They can limit the number
of counsel appearing with the witness and also the scope of the counsel=s
participation. In this case the need for protecting the witness outweighs the
need for administrative expediency because the captain had to give
testimony under oath, was perhaps still in a traumatic state, was testifying
before an investigator who is usually not legally trained, was probably in the
presence of authorities which may deprive him of his reputation, his
professional certification and his livelihood.

Re Howard

Facts:
 An inmate was charged with offences under the Penitentiary Service
Regulations. He was denied representation by counsel at the hearing. The
Board held that s.7 of the Charter did not create a Anew wave of rights@ and
it exercised its discretion to deny the request.
Disposition: The inmate should have been represented by counsel.

Legal Reasoning:
 What is required for a procedure to be in Aaccordance with the principles
of fundamental justice@ varies with the situation, but some features of such
procedure are:
24. Unbiased tribunal.
25. Knowledge of the case to be answered.
26. Fair opportunity to answer.
27. Decision reached on the basis of the material in support of the case and the
answer made to it.
  The appellant needed counsel to adequately present his case.

The right to counsel is not an absolute right (under section 7) but discretionary.
There are certain types of cases where the right to counsel is unquestionable.
The right to have counsel increases in direct proportion to the formality of
proceedings (i.e. the more trial like, more chance of right.)
The following considerations are important with respect to the right to counsel:
54. The seriousness of the charge and the potential penalty.
55. Whether any points of law are likely to arise.
56. Capacity of a particular person to present their case.
57. Procedural difficulties.
58. The need for a reasonable speed in making their adjudication.
59. The need for fairness between prisoners and prison officials. (The old view was
once you were imprisoned you were automatically stripped of your civil liberties.
Now the view that a prisoner is entitled to security of the person has gained
acceptance.)

Re Napoli and Workers Compensation Board (1981 B.C. C.A.)

Facts:
 The Worker=s Compensation Board refused to disclose to a worker the
contents of his file and only provided him with a summary. The trial judge
found that the file should have been disclosed to the worker. The summaries
did not satisfy the rules of natural justice. Section 10 of the B.C. Evidence Act
gave the worker a right to demand full disclosure.

Issue: Was the trial judge correct?

Disposition: The appeal is dismissed

Legal Reasoning:

 A high standard exists in this case because his future will be largely
shaped by the decision. There were damaging statements that could only be
challenged effectively if there is production of the original material.
Summaries were not sufficient here. There was a need for full disclosure.
 The fact that a doctor may feel constraints if his report were to be
disclosed is not a reason not to disclose. Persons preparing such reports will
prepare them with greater care and fairness if they know it will be disclosed.

Gallantv. Trono, Deputy Commissioner, Correctional Services Canada

(1989 F.C.A.)
Facts:
 Gallant was a prisoner at a maximum security prison. He was advised he
was suspected of extortion and drugs and that the warden intended to seek
his transfer to a high-maximum security facility. Specific information was not
disclosed on the grounds that it would Ajeopardize the safety of the victims@.
Gallant applied to the trial division and received certiorari on the ground that
the notice he received was insufficient to satisfy procedural fairness.
  Trono appealed the decision.
Disposition: The appeal is allowed.

Legal Reasoning:
Pratte J.A.

 Gallant=s liberty under section 7 was infringed but it was demonstrably

justified in a free and democratic society. The requirements of procedural
fairness and natural justice vary with the circumstances.
 The director of a penal institution is normally required to give inmates a
fair opportunity to be heard but not in an emergency situation. Here the
danger to the informants was sufficient to relive the Director from the duty to
give more detailed notice.

Marceau J.A.
 He agreed with the result but applied a different line of reasoning. He said
that section 7 was not breached. Absent emergency, the mode of analysis
(the interest balancing aspects) should be the same for both the Charter and
the common law. Fundamental justice was not denied. All prison snitch cases
are different due to the nature of the interest and the level of the impact. It
was merely administrative. He was not being punished for wrong-doing. IF he
was being punished he would have been entitled to a hearing. He was given
enough information so he could figure out the allegations but not enough to
figure out the snitches.

Desjardins J.A. (dissenting)

 There were no steps taken to verify the allegations against him. The
stories should have been checked for consistency and they should have
increased surveillance for Gallant. His section 7 and common law rights were
violated.
 Ways to demonstrate reliability:
60. Independent investigation.
61. Corroborating information from independent sources.
62. Statements made under oath.
63. Put prisoner under tight surveillance to gather information against him.

Gough v. Canada (National Parole Board) (1990 F.C. T.D.)

Facts:
 Gough=s parole was suspended and then revoked because of sexual
assault and drug use allegations. The parole board refused to disclose
details of the alleged incidents or name of the victims. Gough claimed his
section 7 rights had been violated.

Issue:
 Whether and in what circumstances can the board revoke Gough=s
parole without giving him enough information.

Disposition: Gough was successful.

Legal Reasoning:

 The board did not establish a basis to justify non-disclosure under section
1.
 A paroled inmate only has conditional liberty, but in this case, his interest
is close to that of a person with unconditional liberty.
 There is a three step process that should be followed:

64. Determine the content of the principles of fundamental justice in section 7 by

considering:
(a) Circumstances of the case.
(b) Nature of the interests involved.
(c) Reasons and evidence put forward to justify the limitations placed on section
7 guarantees.

65. Determine whether limitations are Aprescribed by law@, if not, stop here, if so,
continue to step 3.

66. Is it a Areasonable limitYdemonstrably justified in a free and democratic

society.@

R. v. Norfolk Country Council Social Services Department (1989 Q.B.)

Facts:
 A 13 year old girl complained that M while working as a plumber in her
mother=s house had indecently exposed himself to her. M=s name was put
on the child abuse register. M applied for judicial review.

Disposition: M was successful.

Legal Reasoning:

 The registration system can prevent suffering of children but it may also
create injustice and oppression. While the section of the public with access is
limited, it includes people with the powers of choice and decision capable of
working to M=s disadvantage.
 Local authorities are not free to exercise arbitrary control over entry of
alleged abusers on a child abuse register. They had a duty to act fairly in
exercising their discretion.

Chapter Five

Bias and Lack of Independence

Pecuniary and Other Material Interests

Re Energy Probe and Atomic Energy Control Board

Statutory Authorization

Brosseau v. Alberta (Securities Commission)

E.A. Manning Ltd. v. Ontario Securities Commission

Refrigeration Workers Union, Local 516 v. Labour Relations Board of

British Columbia

Attitudinal Bias

Re Paine and University of Toronto

Gale v. Miracle Food Mart

Large v. Stratford (City)

Variations in Standards

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City)

Save Richmond Farmland Society v. Richmond (Township)

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners

of Public Utilities)

Constitutional Standards

MacBain v. Canadian Human Rights Commission

Canadian Pacific Ltd. v. Matsqui Indian Band

What is at stake is not disqualification for any form of bias but the identification of
what constitutes impermissible bias. No one ought to be a judge in his own
cause. Pecuniary or financial interest in the outcome always disqualifies the
decision maker.

Whether a decision-maker will be disqualified because of attitudes, prior

involvements, and relationships will vary depending on the statutory context in
which the allegation of bias is raised. Agencies are given more lenience than a
court of law because their members are often from a small community of experts
or peers (i.e., more judicial in nature, the more stringent the criteria, the more
administrative, the greater leniency.)

Re Energy Probe and Atomic Energy Control Board (1984 F.C.A.)

Facts:
 Olsen was a member of the AECB. Energy Probe alleged that Olsen was
president of a company that supplied cables to nuclear power plants and was
in a position of material interest.
Issues:
67. Does the doctrine of fairness enunciated in Nicholson apply to the licensing
function of the AECB?
68. Does the doctrine require a lack of bias on the part of board members?
69. Did Olsen have a pecuniary interest sufficient to constitute pecuniary bias?
Disposition: Energy Probe=s action is dismissed
Legal Reasoning:
Marceau J.

 The law of bias has developed on a dual basis:

28. There are many interests other than pecuniary which may effect the impartiality
of a decision-maker.
29. Justice should not only be done but should appear to be done.
 The
test for bias (replaces the direct test)
30. The benefit comes from the decision itself.
31. The benefit is a likely enough possibility to Acolour@ the case.
 The presence of an immediate possibility of fain or indirectly as a result of
hi decision is enough to render a decision-maker unfit. There was no
immediate possibility of gain here. There mere possibility that a profit could
be realized in the future was too remote.
 Energy Probe establishes the test for Areasonable apprehension of
bias.@

There are four categories of conditions which always lead to disqualifying

bias regardless of which test is used:

70. Antagonism during a hearing by a decision maker towards a party or his/her

counsel or witness.
71. An association between one of the parties and a decision-maker.
72. An involvement by a decision-maker in a preliminary stage of the decision.
73. An attitude of the decision-maker towards an outcome.

Brosseau v. Alberta (Securities Commission) (1989, S.C.C.)

Facts:
 The chairman who had received an investigative report was also sitting on
the panel at the hearing.

Issue:
 Was the Chairman, by acting as both investigator and adjudicator in the
same case, being a judge in his own cause thereby creating a reasonable
apprehension of bias?

Disposition: The Chairman had not acted in a bias manner.

Legal Reasoning:
  An exception to the nemo judex priniple is when overlapping functions
have been authorized by statute, assuming the constitutionality of the statue
is not in issue.
 To the extent overlapping functions are authorized by statute, it will not
create a reasonable apprehension of bias. To be disqualified because of bias
the commission would have to go beyond its statutory authorization.
 Securities commissions by their nature will have repeated dealings with
the same parties. Securities commissions are not intended to act like courts
so things that would be bias in a court may not be bias here.
 The special structure and responsibilities must be considered. The
structure of the Act where the commissioners could be involved in both the
investigatory and adjudicatory functions do not own their own create a
reasonable apprehension of bias as long as the chairman did not act outside
his statutory authority a reasonable apprehension of bias does not exist.

E.A. Manning v. Ontario Securities Commission

Refrigeration Workers Union, Local 516 v. Labour Relations Board of

British Columbia

Facts:
 An employer and a union (RWU) entered into an agreement covering
Aroutine maintenance work@ for the employer. The Construction Labour
Relations Association claimed that it had the sole authority to bargain for this
kind of work. The BC Labour Relations Board was deciding the matter but the
RWU objected because a member of the panel was a manager of a local
union of electrical workers.
 The Board rejected RWU=s objection.
 The trial judge overturned the board=s decision. It was important that
justice appeared to be done.
 The decision of the trial judge was appealed to the British Columbia Court
of Appeal.

Disposition: The appeal is dismissed

Legal Reasoning:
Nemetz J.A.

 There was reason to believe the tribunal member would not be impartial.
Each party is entitled to have confidence in the independence of mind of the
decision-maker.
 The decision-maker must have a Afee, independent and impartial mind.@

Re Paine and University of Toronto (1980, Ont. C.A.)

Facts:
 Paine was a professor who was denied tenure. The Chairman of the
Tenure Committee appointed a professor to sit on the tenure committee who
had previously submitted a negative assessment of Paine and stated that he
was not acceptable for tenure. The trial judge allowed an application for
 review. He said that the judgment by one=s peers could still be fair but it
wasn=t fair here. The university appealed.

Disposition: The appeal is allowed

Legal Reasoning:
Weatherston J.A.

 All members of the Tenure Committee must have by association formed a

general opinion of Paine and his suitability for tenure. It shouldn=t matter
whether that opinion was expressed. Members of the Tenure Committee are
not required to act only on the evidence presented to it, as would a tribunal.
The members are suppose to consider their own knowledge of the candidate.
Paine only needed 5 members out of 7 to approve him. Not one of the
members approved him.

Gale v. Miracle Food Mart (1993)

Facts:
 A&P and the union claimed reasonable apprehension of bias because
Miss Blackhouse who was on the Board and appointed to hear and decide
complaints was an advocate on matters involving sexual discrimination.
 She had a complaint before the same commission involving a similar
matter.
Disposition: There was a reasonable apprehension of bias.
Legal Reasoning:

 She would have been deciding her own personal complaint by deciding
the same issue here.

Large v. Stratford (City)

Facts:
 Professor Kerr took a public positionCthat mandatory retirement was
generally desirable.
 The complainant alleged that Kerr was bias.

Disposition: The appeal was dismissed

Legal Reasoning:
Archie Campbell J.

 He was called upon to decide a different issue, whether the evidence

established that retirement at age 60 was a bona fide occupational
requirement of the Stratford police force.

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City)

Facts:
  S was a Winnipeg City Counsellor who was involved in the municipal
approval process for a residential development that required rezoning.
 S was one of the city officials who originally discussed the project with a
developer.
 He attended and spoke in favour of the development at in camera
meetings of the finance committee, a committee of which he was not a
member.
 S was a member of the community committee of the ward in which the
lands were located. He recommended that the developer=s application be
approved subject to the city=s usual requirements as well as the necessary
street closing by-laws.
 When the association found out of S=s involvement before the finance
committee he was asked to withdraw but refused.
 The re-zoning by-law was passed
 The association moved for orders to prohibit the city from implementing
this by-law. The by-law was quashed by the Manitoba Court of Queen=s
Bench but the appeal was allowed.

Disposition: The appeal is dismissed

Legal Reasoning:
Sopinka J.

 The content of the rules of natural justice and procedural fairness were
formerly determined according to the classification of the functions of the
tribunal or other public body or official. This is no longer the case and the
content of these rules is based on a number of factors including the terms of
the statute pursuant to which the body operates, the nature of the particular
function of which it is seized and the type of decision that it is called upon to
make.
 This case is distinguishable between a case of pre-judgment on the one
hand and by reason of personal interest on the other. It is apparent from the
facts of this case, that some degree of prejudgment is inherent in the role of a
councilor.
 The test is whether objectors or supporters can be heard by members of
council who are capable of being persuaded.
 The test is that which applies to all public officials: Would a reasonably
well-informed person consider that the interest might have an influence on
the exercise of the official=s public duty?

Save Richmond Farmland Society v. Richmond (Township) [1990] 3 S.C.R.

1213 (B.C.)
Facts:
 This had to do with re-zoning from agricultural to residential.
 A councilor gave an interview where he said that he would listen at a
public meeting but that he would not change his mind.
 The by-law was eventually passed and the B.C. Court of Appeal rejected
the petitioners argument that the by-law should be quashed.

Disposition: The appeal is dismissed

Legal Reasoning:
LaForest J.

 A statutory duty is placed on municipal councils to hold a public hearing

prior to the adoption of a zoning by-law.
 It is important to ascertain what capacity the council acts in when
conducting a zoning by-law hearing.
 There is no way of gauging the Aopenness@ of a person=s mind and it
would make no sense to do so.
 Politicians posture all the time and to bring in such tests would not be
overly helpful.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners

of Public Utilities)

Facts:
 The Board of Commissioners of Public Utilities was responsible for the
regulation of Newfoundland phone rates.
 Andy Wells was the Chairman of the 5 member Newfoundland Public
Utilities Board.
 He made comments before and during the hearing in which he said that
he thought the executives of Newfoundland Telephone were overpaid and
that he wanted to get to the bottom of what was going on.
 Newfoundland Telephone lost at the hearing. They argued that Andy
Wells was biased and that procedural fairness had been violated.

Disposition: Newfoundland Telephone was successful.

Legal Reasoning:
Cory J.

 The function here was primarily adjudicative and boards like courts should
not give the appearance of a reasonable apprehension of bias. However,
there is not such a strict application of the concept of reasonable
apprehension of bias in situations like this. In order to disqualify you must
show there has been pre-judgment to such an extent that representation to
the contrary will have no effect.
 There is no reason why advocates for consumers should not be members
of boards in particular circumstances.
 There should not be undue concern that a board that draws its
membership from a wide spectrum will act unfairly.
 A member of a board which performs a policy formation function should
not be susceptible to a charge of bias simply because of the expression of
strong opinions prior to the hearing.
 During the investigative stage, a wide licence must be given to board
members to make public comment. As long as those statements do not
indicate a mind so closed that any submission would be futile, they should
not be subject to attack on the basis of bias.
  Once the matters reach the hearing stage a greater degree of discretion
is required of a member.
 The statements of Andy Wells during and subsequent to the hearing,
viewed cumulatively, lead inexorably to the conclusion that a reasonable
person appraised of the situation would have an apprehension of bias.
 Once the order directing the holding of the hearing was given the Utility
was entitled to procedural fairness. At that stage the conduct of the members
becomes more important.
 Procedural fairness is an essential aspect of any hearing before a
tribunal. The damage created by apprehension of bias cannot be remedied.
The hearing, and any subsequent order resulting from it, is void.

MacBain v. Canadian Human Rights Commission

Facts:
 The complainant filed a complaint that MacBain had discriminated against
her on the basis of sex during the course of her employment. The
commission appointed a staff member to investigate, and after she made her
report, the commission decided that the complaint was substantial and
appointed a tribunal from the list established under section 39.

Disposition: The appeal is allowed

Legal Reasoning:
Heald J.

 The very same Commission also appointed the Tribunal members who
heard and decided the case adversely to the appellant. Such a scheme
violates the principle that no one will judge his own cause since it cannot be
said that there is any meaningful distinction between being your own judge
and selecting the judges in your cause.

Canadian Pacific v. Matsqui Indian Band (1995, S.C.C.)

Facts:
 Indian bands passed by-laws creating a tax regime for real property on
reserve land. CP and Unitel used land that ran through the reserves and they
successfully appealed to the Federal Court of Appeal for judicial review of
their assessments. The bands appealed to the Supreme Court of Canada.

Disposition: The appeal is dismissed (5-4)

Legal Reasoning:
Lamer (majority)

 Appeal tribunals established under the Indian Act must comply with the
principles of natural justice as any other tribunal would.
 The test for independence must be applied in light of the functions being
performed by the particular tribunal. (Valente principle) This must be
 considered in light of (1) the nature of the tribunal and (2) the interests at
stake and (3) other indices of independence.
 Three factors in this case led to a conclusion that the tribunal was not
independent:
1. No financial security for members of the tribunal.
2. No security of tenure.
3. Tribunal members are appointed by Bands Chiefs and Councils.

Sopinka J. (minority)

 The purpose of the band taxation scheme is to foster Aboriginal self-

government. Statutes relating to Indians should be liberally construed and
doubtful expressions should be resolved in favour of the Indians. Sopinka
generally agrees with Lamers test but Sopinka would want the reasonable
person to know how the tribunal operates in actual practice, not just be
examining the by-laws. The principles of natural justice are flexible and must
be viewed in their contextual setting.

IdziakCJustice Cory held that overlapping functions was not contrary to section
of the Charter and the Aprinciples of fundamental justice.@ He emphasized the
flexible content of those principles and, against this background, referred to the
buffer provided by the extradition hearing conducted by a judge and at which the
affected individual had full procedural protections as well as the highly political
nature of the Minister=s discretionary power not to issue a warrant of surrender
despite the existence of a warrant of committal. The latter function, was at the
legislative end between highly judicial and legislative functions. As a
consequence, there was no basis for a claim that the conferring of dual roles
was unconstitutional

R. v. Jones [1986] 2 S.C.R. 284 (Alta.) The Supreme Court of Canada rejected
the argument that section 7 was infringed by a process in which a departmental
official decided whether or not there was sufficient proof of effective instruction to
warrant allowing a child to be taught outside the regular school system. It was
not persuaded by the contention that a reasonable ground of apprehension of
bias existed on the basis that such an official would have a strong commitment
to enrolment in the regular school system.

R. v. Lippé [1991] 1 S.C.R. 114 (Qué) In this case of the Supreme Court of
Canada Justice Lamer stated that the appropriate standpoint from which to
consider such allegations of institutional bias or impartiality was that of Aa fully
informed person@ and whether that person would have a reasonable
apprehension of bias in Aa substantial number of cases.@ If to establish a
reasonable apprehension of bias in the context of his or her particular case.
Chapter Nine

Regulations, Rights, and Statutory Interpretation

Common Law and Private Rights

Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save

the Valley Committee, Inc.

Re/Max Ontario-Atlantic Canada Inc. v. Registrar of Real Estate and Business

Brokers et al.

Functionalism and the Common Law

National Labour Relations Board v. Hearst Publications Inc.

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor

Corporation

Re Cormier and Alberta Human Rights Commission

Functionalism: Institutional Considerations and Statutory Rights

Thomson v. Canada (Deputy Minister of Agriculture)

Finlay v. Canada (Minister of Finance)

Human Rights and Constitutional Values

Canada (Attorney General) v. Mossop

Two standards:

1. Correctness and agreement.

2. Reasonableness and deference.

Statutory Interpretation:

1. Read the whole text.

2. Consider the purpose of the text.
3. Be sensitive to convention.
4. Be sensitive to context.
5. Be sensitive to the facts of the particular case.

Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the

Valley Committee, Inc.

Facts:
 Citizens were opposed to the applicants proposed construction of a new
road. The citizens requested that they be provided with funds necessary for
 them to be represented. The Board allowed these funds to be provided by
ordering the applicant to pay the costs in advance so that the interveners
could adequately present their case. The applicant appealed.

Issue:
 Did the board lawfully exercise its jurisdiction to award costs when it made
the order for advance costs?

Disposition: The board did not exercise its jurisdiction to award costs here. It
provided intervener funding which it did not have the power to do.

Legal Reasoning:

 The language used by the statute was clear and unambiguous, it provided
for costs. In the absence of clear language that the legislature intended to
give the Board special powers it will be assumed that the Board=s Acosts@
powers do not exceed those traditionally exercised by courts.
 The normal legal meaning of costs are:
74. They are an award made in favour of a successful or deserving litigant, payable
by the loser.
75. The award must await the conclusion of the proceeding, as success or entitlement
cannot be determined before that time.
76. They are payable by way of indemnity for allowable expenses and services
incurred relevant to the case or proceeding.
77. They are not payable for the purpose of assuring participation in the proceeding.

Re/Max Ontario-Atlantic Canada Inc. v. Registrar of Real Estate and Business

Brokers et al.

Facts:

 The applicant wanted to establish a relationship of independent contractor

between his licensee and salesman by the terms of the Real Estate and
Business Brokers Act. Brokers of Re/Max want to establish the relationship of
independent contractor with their salesmen in order to avoid liability
associated with being an employer.

Issue:
 Is the registrar correct in finding that the relationship must be employment
and not independent contractor?

Disposition: The registrar was incorrect. The statute does not preclude sales
persons from being engaged by real estate brokers as independent contractors.

Legal Reasoning:

 By reading the statute as a whole it is clear that the Act contemplates

arrangements other than employer/employee. An independent contractor can
be employed by his employer and still retain the status as independent. The
 test for an employment relationship is whether the employer retains the
power of directing what work is to be done and controls the manner in which
the work is done.
 There are two strong traditions that have to be considered:
32. Free enterprise.
33. Right of an individual to earn a living.
 The act does not prevent salesmen from being employed as independent
contractors but seems to contemplate it under freedom of contract.

These cases illustrate three of the most dominant components of the

common law or private rights interpretive background:

78. Predominance of the general legal meaning of words.

79. The presumptions in favour of maintaining common law rights.
80. Insistence on the literal interpretation of statutory language, aided by the canons
of construction.

Three presumptions of statutory interpretation employed by courts in

administrative statutes:

81. delegates non potest delegare presumption against sub-delegation of

statutory power.
82. ejusdem generispresumption that a general word in a statutory list should
be understood to have a meaning similar to the at of the more particular
words in that list.
83. expresso unius est exclusio alteriuspresumption that the express mention in
a statute of one matter means that another similar matter, which is not
mentioned is excluded.

National Labour Relations Board v. Hearst Publications Inc.

Facts:
 Hearst Publications was ordered by the National Relations Board to
bargain with a union selected by a majority of newsboys. Hearst argued that
the newsboys were not employees but independent contractors.

Disposition: The newsboys were employees.

Legal Reasoning:

 The function of the act is to protect people such as newsboys from being
taken advantage of by employees like Hearst. The interpretation of the Act
should reflect this.
 If the federal statute were given its common law meaning it could not be
applied uniformly across the country. Must look to the history, terms and
purposes of the legislation to determine its meaning.
 The mischief at which the Act is aimed and the remedies it offers are not
confined to Aemployees= within its traditional definition. The mischief and
remedies also apply to some independent contractor relationships. It looks at
inequality of bargaining power, wages, hours of work, etcY
  The applicability of the Act should be determined broadly, by underlying
economic facts rather than technically and exclusively by previously
established legal classifications.

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor

Corporation

Facts:
 The union complained that the NB Liquor Corporation, the employer was
replacing striking employees with management personnel contrary to the Act.
The applicable section was poorly drafted and was ambiguous.
 The employer argued that the phrase ‘with any other employee’ indicated
that the only intent of the section was to ensure that the jobs remained open
for the employees after the strike was over. The Board disagreed and found
the purpose of the section was also to restrict the possibility of picket line
violence by prohibiting strikebreaking. The employer appealed and was
successful. The Board appealed to the S.C.C.

Issue:
 Was the Board’s interpretation so patently unreasonable that its
construction cannot be rationally supported by the relevant legislation and
demands intervention of the court on review?
Disposition: The appeal is allowed

Legal Reasoning:

 The interpretation of the Board and the Court of Appeal are both
reasonable. The Board’s interpretation is no less reasonable than that of the
Court of Appeal and it is not apparently unreasonable. The Board=s decision
should be upheld. The court should show deference to the Board=s decision.
The Board can be wrong just not patently unreasonable.

Re Cormier and Alberta Human Rights Commission (1984, Alta. Q.B.)

Facts:
 The complainant argued that a company refused to hire him because of
his race. The commission rejected the complain of discrimination on the
ground that the position for which the complainant had applied would not
have established an employment relationship but rather an independent
contractor.

Disposition: The court found that the commission had misinterpreted the words
Aemployer@ and Aemployee@ and ordered it to hear to complaint on its merits.

Legal Reasoning:

 There was ambiguity in the legislation and it should be given a liberal

interpretation so far as is consistent with the purpose of the Act. The Act must
be read as a whole.
What happens if there is genuine ambiguity?

84. Courts responsibility to resolve it and avoid inconsistencies. (Cormier)

85. The administrator should resolve any ambiguities. (CUPE)

These cases emphasize statutory context and legislative purpose rather than common law
concepts. They also demonstrate 2 differences within the Afunctionalist@ tradition of
statutory interpretation:

34. Extent to which courts are willing to regard meaning of statutory language as
ambiguous.
o In Hearst, no ambiguity of meaning, Court took a functionalist and
purposive approach to the word Aemployee@ and held that the
protection of the statute was not limited to common law master-servant
relationship.
o In Cormier, words in the statute were regarded as ambiguous.
Ambiguity was resolved easily by using purposive approach.
o In CUPE, statutory language was ambiguous, and no none
interpretation was said to be correct.
35. Determination of where responsibility for interpreting administrative statute is
located: with the specialist agency or with the court.
o In Hearst and Cormier, while giving appropriate weight to the
judgment of those whose special dutyit is to administer the statute, the
court must decide for itself the proper interpretation of the legislation.
o In CUPE, Dickson did not think it was the responsibility of the court
to resolve the ambiguity in issue there, it was a matter for the Board.
Thomson v. Canada (Deputy Minister of Agriculture)

Facts:
 Thompson was offered a position in the Dept. of Agriculture, subject to
him obtaining a security clearance. CSIS investigated him and reported
unfavourably. Thompson appealed to the Security Intelligence Review
Committee (SIRC) which recommended that he be given security clearance.
The Deputy Minister refused to accept the committee=s recommendation on
the ground that his doubts about Thompson=s reliability had not been
removed. The Court of Appeal set aside the Minister=s decision and the
Minister Appealed.

Issue:
 Under s.52(2) of the Act are the Arecommendations@ of the committee
binding upon the Minister?

Disposition: The appeal is allowed

Legal Reasoning:
Cory J. (majority)

 The power to grant or deny security clearance as a condition of

appointment remains under the Crown=s control. This power of the crown
 can be abolished or limited by the Act. The Act must be read as a whole to
determine its aim and object. When the words used in the statute are clear
an unambiguous, no other step is needed to identify the intention of
parliament. Here the word is clear. The word Arecommendations@ should be
given its plain and ordinary meaning which is the offering of advice, and not a
binding decision. The Deputy Minister is responsible for the ongoing security
in his department and the final decision should be left with him regardless of
the decision of the committee.

L=Heureux-Dube (dissenting)

 Words do not have meaning by themselves, they derive it from their

context. Everything must be read in its immediate, proximate and broadest
context.
36. ImmediateCno reason to interpret it as advice.
37. ProximiateCfactor that recommendations was interpreted as advice in other parts
of the legislation, but it is not binding.
38. Broadest (this is the institutional reading)Cwe have changed the meaning by the
scheme of the Act. It would be inappropriate to ignore the result of a question
when it has been subject to a full hearing.
 The Deputy Minister was bound to follow the Arecommendations@ of the
SIRC.
 She agrees with Cory that to determine the meaning of a particular
provision the Act must be read as a whole to ascertain its aim and object.
 There are three aspects of statutory interpretation:
39. Language used.
40. Context of both the statutory provision and the law itself.
41. Purpose or intent of the legislation.
 Cory only considered the ordinary meaning. Looking beyond the language
to intent is even more important when the statutory provisions give legal
rights.
 She also looks at the French text.
 She feels that the Minister loses the discretion to refuse security
clearance where the initial decision to withhold it was based on a faulty CSIS
report.

Finlay v. Canada (Minister of Finance)

Facts:
 Finlay was a disabled and received welfare payments. He was overpaid
and then the government of Manitoba deducted 5% from his benefits to
reclaim the amount that he had been overpaid. Finlay argued that the Social
Services Allowance Act (S.A.A.) did not comply with the federal standards
prescribed in the Canada Assistance Plan (C.A.P.).

Issue:
 Do deductions to permit the recovery of overpayments violate the CAP
and the agreement between the Government of Canada and the Government
of Manitoba?
Disposition: The deductions do not violate the C.A.P. or the agreement

Legal Reasoning:
Sopinka J.

 It is not incompatible with the scheme established by the CAP that a

person in need who has been overpaid be required to pay the excess back.
 In arguing to share the costs of overpayment the federal government
wanted to ensure that provision would be made for the recovery of excess
payments.

McLachlin J. (dissenting)

 She found that it did violate the C.A.P. She compared the English and
French sections and found that the French section was clearer. It was equally
authoritative. She found that the province must provide enough money
compatible with Finlay=s basic requirements. (Page 731)
 Considerations provinces undertake under C.A.P. to provide basic
necessities.
42. The wording of C.A.P.
43. The purpose of the provisions.
44. The legislative debate.
45. The adequacy principle.
 The appropriate remedy is a declaration that the Manitoba scheme fails to
comply with the conditions of the federal contribution established by the
C.A.P.

Canada (Attorney General) v. Mossop

Facts:
 Mossop, a federal civil servant applied for a bereavement day to attend
the funeral of his same-sex partner=s father. The employer refused on the
ground that the relevant provisions of the collective agreement dealt with
spouses immediate family and spouse was defined as a member of the
opposite sex.
 Mossop complained to the Human Rights Commission that this was
discrimination.

Issue:
 How should section 3 of the Canadian Human Rights Act be interpreted?

Disposition: Mossop is not successful.

Legal Reasoning:
Lamer J.
 When parliament added the phrase family status to the Act it refused at
the same time to prohibit discrimination on the basis of sexual orientation in
the Act. When parliamentary intent is clear, courts and administrative
tribunals are not empowered to do anything else but apply the law. Absent a
 Charter challenge, the Charter cannot be used as an interpretive tool to
defeat the purpose of the legislation or to give the legislation an effect
Parliament clearly intended it not to have.

LaForest J.

 The dominant conception of family is the traditional family. There is

nothing to show that parliament intended to cover the situation of same-sex
couples.

L=Heureux-Dube J. (dissenting)

 She disagreed on the intent of the legislation. It is not the intent of putting
a family status in place and excluding sexual orientation. It is the intent to
protect people from discrimination. She goes from the majorities narrow
interpretation to a broader interpretation.
 Human rights legislation is quasi-constitutional and should be given a
large, purposive and liberal interpretation.

Chapter Ten:
Questions of Law: Standards of Review

Errors of Law

Canada (Attorney General) v. Mossop

John Doe v. Ontario (Information and Privacy Commissioner)

Errors of Law and Rights of Appeal

Bell Canada v. Canada (C.R.T.C.)

Pezim v. British Columbia (Superintdent of Brokers)

Law, Fact or Discretion?

Edwards v. Bairstow

Canada (Attorney General) v. Mossop

Facts:
 The facts were described in an earlier case brief.

Issue:
 Did the Canadian Human Rights Commission make an error of law?

Disposition: The Commission did make an error in law.

Legal Reasoning:
Lamer C.J.C.

 The decisions of the Human Rights Commission have a significant impact

upon society. This is different than a labour arbitrator who decides on much
narrower issues and has a narrower impact.
 Tribunals often have strong privative clauses but the Human Rights
Commission was not covered by such a clause. In the absence of such a
clause its decisions are not immune from judicial review.

LaForest J.
 The normal approach to interpreting a tribunal=s enabling statute should
be that the courts retain their general supervisory jurisdiction.

The court confirmed that the interpretation of legislation is a question of law and
whether the Tribunal=s interpretation of the words Afamily status@ was
erroneous in law should be determined by asking if it was correct. However, it
did not commit itself to the further proposition that, when reviewing the decision
of an administrative agency on a question of law, it is always appropriate for a
court to decide for itself the meaning of the statute, and to set aside as
erroneous in law a decision of the agency that is based on a different
interpretation.
The majority judgments suggest a number of factors that a reviewing court
should take into consideration when deciding whether a particular tribunal=s
interpretation of a particular provision in its enabling statute must be correct in
order to withstand judicial scrutiny on questions of law. They include, the
expertise of the agency (to be assessed by considering its permanence and the
width of its regulatory responsibilities, for example), the specificity of the
statutory language, and whether the issue of statutory interpretation in dispute
calls more for the skills, perspective and experience of the specialist agency,
than for those of a generalist court.

The Federal Court of Appeal has jurisdiction to review any error of law made by
a tribunal under the Canadian Human Rights Act. While curial deference will
apply to findings of fact such deference will not apply to findings of law in which
the board does not have any particular expertise. In this case the issue is
statutory interpretation which is a question of law subject to review on a standard
of correctness. The tribunal was not entitled to curial deference in interpreting
the law if the law they are interpreting is one of general and not one which they
had special expertise.

John Doe v. Ontario (Information and Privacy Commissioner)

Facts:
 After acquitting an accused of assaulting police officers, the judge
recommended that the officers be investigated with a view to possible
prosecution for perjury. An internal investigation found no ground for
proceeding against the officers, and the Public Complaints Commissioner, an
independent official, dismissed a complaint against them.
  The judge requested the Information and Privacy Commissioner to
release to him a copy of the report of the investigation of the officers=
conduct by the Ontario Provincial Police (OPP). The Commissioner agreed,
except for a small portion of the report that would reveal the identity of a
witness. The officers applied for judicial review of the Information and Privacy
Commissioner=s decision to order disclosure of the report.

Disposition: Their application is allowed.

Legal Reasoning:
Campbell and Dunnet JJ.

 There is no ambiguity in the Act and no need to resort to complex rules of

statutory interpretation. The commissioner fundamentally misconstrued the
scheme of the Act. His interpretation of the statute is one of the legislation
may not reasonably be considered to bear. In purporting to exercise a
discretion in the form of a balancing exercise, he gave himself a power not
granted by the legislation and thereby committed a jurisdictional error.

The court talked about curial deference and privative clauses:

Curial deference to the work of specialized tribunals does not, however, depend
entirely on the existence of a privative clause by which the legislature has
expressly directed the court to apply a non-discretionary form of deference. Even
when the legislature has provided a right of appeal to the courts, curial
deference should be given to the opinion of an administrative tribunal which
enjoys the requisite quality of specialized expertise on issues which fall squarely
within its area of expertise.

This case provided a good example of the pragmatic and functional approach.
The court went through the analysis and found that there should be deference.
The interpretation was unreasonable and was quashed. The act contained no
right of appeal, no privative clause and no finality clause.

Bell Canada v. Canada (C.R.T.C.)

Facts:
 In order to relive the industry from the potential hardship it may sustain as
a result of delay between application for an increase and the decision, the
Commission may approve an interim rate increase pending a final
determination. Like final rates, interim rates must be Ajust and reasonable@;
however, they are normally set quite quickly, and on the basis of much less
substantial evidence than would be required for a final decision.
 Bell=s profits in the interim were $206 more than were forecast. Bell was
order to pay it back. It appealed and succeeded on appeal. The Commission
appealed to the S.C.C.

Issue:
 Whether the appellant had jurisdiction to order the respondent to grant a
one-time credit to its customers?
Disposition: The appeal is allowed.
Legal Reasoning:
Gonthier J.

 CUPEjudicial review cannot be completely exclude by statute and that

courts of original jurisdiction can always quash a decision if it is so patently
unreasonable that its construction cannot be rationally supported by the
relevant legislation and demands intervention by the court upon review.
 A decision of an administrative tribunal can only be entitled to such
deference if the legislator has clearly expressed his intention to protect such
decisions through the use of privative clauses or clauses which state that the
decision is final and without appeal.
 Within the context of statutory appeal from an administrative tribunal,
additional consideration must be given to the principle of specialization of
duties.
 Although the purpose of the review committee is to interpret the tariff and
although such questions of interpretation fall within the Review Committee=s
area of special expertise, it does not follow that its decisions can only be
reviewed if they are unreasonable. However, the principle of specialization of
duties justifies curial deference in such circumstances.
 The appellant had jurisdiction to review the interim rates in force prior t
Decision 86-17 for the purpose of ascertaining whether they were just and
reasonable, had jurisdiction to order the respondent to grant the one-time
credit described in Decision 86-17 and has committed no error in doing so.

Pezim v. British Columbia (Superintdent of Brokers)

Facts:
 The British Columbia Securities Commission had found that the
respondents (Pezim and others) had failed to make timely disclosure in
respect of certain transactions as required by the Securities Act. As a result,
it suspended them from trading in shares for one year and ordered them to
pay costs.
 The respondents exercised their right under section 149 of the Securities
Act to appeal on questions of law to the Court of Appeal, with leave of the
court. They argued that the commission had erred in law in its interpretation
of the phrase Amaterial change@ in the affairs of a reporting issuer of
shares. The Court of Appeal allowed the appeal and the Superintendent and
the commission appealed to the Supreme Court of Canada.

Issue:
 What is the appropriate standard of review for an appellate court
reviewing a decision of a securities commission not protected by a privative
clause when there exists a statutory right of appeal and where the case turns
on a question of interpretation?

Disposition: The appeal is allowed

Legal Reasoning:
Iacobucci J.

 The primary purpose of the statute is the protection of the investor but
other goals include capital market efficiency and the ensuring of public
confidence in the system.
 The case falls between two extremesCone the one had with a statutory
right to appeal pursuant to s.149 of the Securities Act and on the other it is an
appeal from a highly specialized tribunal on an issue which goes t the core of
its regulatory mandate and expertise.
 Even when there is no privative clause and where there is a statutory right
to appeal, the concept of specialization of duties requires that deference be
shown to decisions of specialized tribunals on matters which fall squarely
within the tribunal=s expertise.
 Section 4 of the Act identifies the Commission as being responsible for
the administration of the Act. The Commission also has broad powers with
respect to investigations, audits, hearings and orders.
 Definitions in the Securities Act exist in a factual or regulatory context.
They are part of a the larger regulatory framework . They are not to be
analyzed in isolation but rather in their regulatory context. This is something
that requires expertise and thus falls within the jurisdiction of the
Commission. This is another basis for curial deference.
 Where a tribunal plays a role in policy development, a higher degree of
judicial deference is warranted with respect to its interpretation of law.
 Having regard to the nature of the securities industry, the Commission=s
specialization of duties and policy development role as well as the nature of
the problem before the court, considerable deference is warranted in the
present case notwithstanding the fact that there is a statutory right of appeal
and there is no privative clause.

Analysis:

46. Nature of the Statute

 Objectives.
 Purpose.
 Appointment powers.
 General powers it is given.

47. Nature of Judicial Review

 Legislative intent to confer jurisdiction.
 Role and function of whether there was a private clause. There
wasn=t one here.

48. Role of Commission

 Powers and duties of decision maker.
 Somewhere between high and low deference.
 Role of court exists but may not be total.
 There are broad powers with policy development.

49. The Court Found

 Highly specialized.
  Law-making.
 Broad functions.
 Fairly autonomous.

Edwards v. Bairstow

Facts:
 The respondents bought a plant and later sold it for a profit. The
Revenue claimed that the profits made by the respondent were liable to
income taax because the transactions from which they arose constituted Aa
trade adventure in the nature of trade.@
 The respondents contended that the profits were capital in nature and that
their transactions had been wrongly characterized by the Revenue.
 On appeal from the assessment, the general commissioners of income
tax held in favour of the respondents.
 The Revenue appealed on a question of law.

Disposition: The appeal is allowed

Legal Reasoning:
Viscount Simonds

 The facts do not justify an interference with the conclusion of the

commissioners.
 It is a question of law, not fact what the characteristics are and what the
statute means. It follows that the inference can only be regarded as an
inference of fact if it is assumed that the tribunal which makes it is rightly
directed in law what the characteristics are.
 The decision of the commissioners is only impeachable if it is erroneous
in law.

Lord Radcliffe

 The profit from the set of operations that comprised the purchase and
sales of the spinning plant was the profit of an adventure in the nature of
trade.
 The reason why courts do not interfere with commissioner=s finding or
determinations when they do involve nothing but questions of fact is not any
supposed advantage in the commissioners of greater experience in maters of
business or any other matters.
 The court is not a second opinion, where there is a reasonable ground for
the first.

Chapter Eleven

Preclusive Clauses and the Standard of Review

Three Approaches to the Definition of Jurisdictional Review

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor

Corporation

Life After CUPE: Two Steps Back and One Forward?

Union des employes de service, Local 298 v. Bibeault

Canada (Attorney General) v. Public Service Alliance of Canada [1991]

Canada (Attorney General) v. Public Service Alliance of Canada [1993]

Dayco (Canada) Ltd. v. C.A.W. Canada

Jurisdictional Errors: Patent Unreasonableness

CAIMAW v. Paccar of Canada Ltd.

National Corn Growers Assn. v. Canada (Import Tribunal)

Lester (W.W.) (1978) Ltd. v. United Assn. of Journeymen etc. of the Plumbing
and Pipefitting Industry, Local 740

Domtar Inc. v. Quebec (commission d=appel en matiere de lesions

professionnelles)
Finality and Other AWeak@ Preclusive Clauses

Dayco (Canada) v. CAW-Canada

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco

Construction Ltd.

Canadian Union of Public Employees, Local 963 v. New

Brunswick Liquor Corporation
The facts were discussed earlier.

When the administrative tribunal is acting within its jurisdiction it will lose
jurisdiction only if it acts in a patently unreasonable manner. Not only would
the board not be required to be correct in its interpretation but the board is
entitled to err and any such error would be protected from review by the privative
clause. If the board=s interpretation is so patently unreasonable that its
construction cannot rationally be supported by the relevant legislation and
demands intervention by the court, then the court will review the decision.
Qualifying CUPE - how was CUPE distinguished when the courts wanted to
move away and still keep CUPE intact?

86. Labour and public sector law, governed by a highly specialized decision-maker.
87. Existence of a privative clause- the court will take a privative clause into account
but it is not conclusive. Virtually anything can be elevated to a question of
jurisdiction. Access to the courts cannot be denied. The courts will always look at
the merits.
88. Ambiguity in interpretation, which was genuinely put there with no obvious
answer (i.e. the legislators want the agency/tribunal board to figure things out.)
89. Broad powers, the diversity and nature of the responsibilities.
90. Is the interpretation question at the heart of the Board=s specialization?

Union des employes de service, Local 298 v. Bibeault

Facts:
 This was the case where the school hired new janitors after the old
janitors were on strike. The Quebec Labour Commissioner and Labour Court
ruled that the new employees were covered by the union under the
successor-employer provisions@ in the Quebec Labour Code.

Disposition: The Supreme Court of Canada says that this is jurisdictional and the
standard of review is correctness.

Legal Reasoning:
Laskin J.
 Common law has no place in labour law. A sale in labour law is not the
same as a sale in contract law. The statutes purpose is to protect unions.
This may be a case of branding as jurisdictional that which is doubtfully so.
 Rule of lawCeveryone has a right to be protected from a patently
unreasonable decision.
 If the standard of review is correctness, the tribunal has to be correct.

The court set out the two instances in which an administrative tribunal will have
exceeded its jurisdiction:

91. If the question of law at issue is within the tribunal’s jurisdiction, it will only
exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal
which is competent to answer a question may make errors in doing so without
being subject to judicial review.

92. If however the question at issue concerns a legislature limiting a tribunal=s

powers, a mere error will cause it to lose jurisdiction and subject the tribunal to
judicial review. In this type of situation a court should adopt a pragmatic and
functional approach.

Curial deference is where a court won’t interfere in a decision of an administrative

tribunal where the legislator has clearly stated that the administrative tribunal’s decision
is final, unless the error goes to jurisdiction.
The significance of CUPE is that the SCC said this is the law. In Bibeault they gave gone
back-it appears that it may not be jurisdictional.

Canada (Attorney General) v. Public Service Alliance of Canada [1991]

Facts:
 The question raised by this appeal is whether the Public Service Relations
Board had jurisdiction to decide that teachers working in the Cowansville
Penitentiary pursuant to a government contract with Econosult were
employees in the Public Service within the meaning of the Public Service
Staff Relations Act.

Disposition:

Legal Reasoning:
Sopinka J.

 It is necessary to consider whether the Board in concluding that it could

entertain the application made by the appellant, was interpreting a statutory
provision which confers or limits jurisdiction.
 Essentially this requires a determination as to whether the interpretation
of s.33 was intended by parliament to be left to the Board or whether it was a
provision limiting jurisdiction. If it is the latter than the Board =s interpretation
is reviewable if it is wrong.
 In determining whether there is a simple error in interpreting a provision
conferring or limiting jurisdiction, a pragmatic, functional approach must be
adopted. Adopting a pragmatic and functional approach to the construction of
these provisionsCParliament did not intend to confer jurisdiction on the Board
with respect to the labour relations of employees who are not members of the
Public Service.
 The Board by an error of law assumed jurisdiction that it was not intended
to have. Its decision is reviewable.
 The Board=s function by s.33 is not to determine who is an employee but
rather whether employees who come within the definition provided, are
included in a particular bargaining unit.
 The Board had to be right since it had a limited jurisdiction, Acorrectness
standard.@

Cory J. (dissenting)

 He takes a different approach:

1. Did the Board have the authority to answer the question? Yes.
2. Was their decision reasonable? Yes.
 The Board did not exceed its jurisdiction. It acted within its area of
expertise and carried out its mandate when it found that the teachers were
members of the bargaining unit. Unlike the situation in Bibeault, the Board
was given wide powers and its decision required the utilization of expert skill
or knowledge that it was uniquely qualified to exercise. The decision of the
Board was not unreasonable.
Canada (Attorney General) v. Public Service Alliance of Canada [1993]

Facts:
 This case was about the government=s Work Force Adjustment Policy.

Issues:
 Whether the Board had jurisdiction to determine the reference submitted
by the respondent?
 If it did have jurisdiction did the Board make a patently unreasonable
decision in finding that the appellant contravened the terms of its collective
agreement with the respondent in contracting out work that had bee
performed by the bargaining unit.

Disposition: The appeal is dismissed.

Legal Reasoning:
Cory J.

 The statute went far to ensure the independent and expertise of the Board
members.
 In undertaking the review courts must ensure first that the board has
acted within its jurisdiction by following the rules of procedural fairness,
second that it acted within the bounds of the jurisdiction conferred upon it by
the empowering statute, and third, that the decision it reached when acting
within its jurisdiction was not patently unreasonable.
 There was a strong privative clause in the Act which cannot be ignored.
 The obligation not to privatize or contract out in violation of the Work
Force Adjustment Policy is an obligation affecting the entire bargaining unit
rather than any individual employee.
 A consideration of the Board=s empowering legislation makes it clear that
it has been given extensive powers to consider and resolve a wide variety of
labour problems.

L=Heureux-Dube J.

 She based her decision on a standard of correctness.

 The Board would have jurisdiction to determine whether or not an
obligation existed, but not to determine Ato whom@ that obligation was
owed.
Dayco (Canada) Ltd. v. C.A.W. Canada

Facts:
 The employer closed its plant and moved its operations to Mexico. The
collective agreement between the employer and the respondent union was
formally terminated. The employer subsequently refused to pay employees
who had retired prior to the shut-down the non-pension benefits (including
extended health care and dental insurance) that had been provided for in the
collective agreement. Prior to the termination of the agreement, the employer
and the union had agreed that the benefits of the current employees would
continue for another six months, but nothing was said about the retirees.
  The union grieved on behalf of the retirees, alleging that the employer
was in breach of the collective agreement, and an arbitrator was appointed.
The employer challenged the jurisdiction of the arbitrator, on the ground that
since there was no longer a collective agreement in existence, the grievance
was not arbitrable. The arbitrator found that the matter was arbitrable and
that he had jurisdiction to determine the grievance.

 The divisional court set decision aside. The Court of Appeal reversed the
decision and the employer appealed.

Issues:
 Whether the grievance is arbitrable?
 Was the arbitrators findings correct?

Disposition: The appeal is dismissed

Legal Reasoning:
La Forest J.

 It was too early to decide if privity was important.

 Courts should a s a matter of policy defer to the expertise of the arbitrator
in questions relating to the interpretation of collective agreements.
 This was a different caseCthe viability and subsistence of the collective
agreement was challenged.
 It is not necessary to be preoccupied with Aarbitrable@. It is generally
used in labour law as a synonym for Awithin jurisdicton.@
 When the Amatter@ must be measured against the collective agreement
to determine if it is arbitrable, the arbitrator will have the right to be wrong.
 The privative clause here only applies to the board and there is no
comparable provision with respect to the arbitrator.
 The rights that accrue under a contract can continue to exist after the
contract has expired.

CAIMAW v. Paccar of Canada Ltd.

Facts:
 CAIMAW was the certified bargaining agent for the employees of the
appellantCPaccar.
 There was a dispute over the collective agreement after a large number of
employees were laid off by Paccar. The parties attempted to get a new
collective agreement but could not. Paccar imposed its own terms on the
employees.
 Pacaar lost at the Labour Relations Board.
 The Court of Appeal dismissed their appeal.
 They appealed to the Supreme Court of Canada.

Issues:
 The main issue is whether the decision of the respondent Labour
Relations Board permitting an employer, after the termination of a collective
 agreement, to unilaterally alter the terms and conditions of employment is
patently unreasonable and therefore subject to review?
 Whether the Labour Relations Board had standing?

Disposition: The appeal is allowed

Legal Reasoning:
La Forest J.

 The Labour Relations Board derives its authority from the Labour Code.
 Section 27 requires the Board to make decisions have respect for the
public interest and to promote harmony in labour relations.
 This direction does not allow a court to substitute its judgment for that of
the Board as to what actions will Adevelop effective industrial relations.@
 The emphasis should be not so much on what result the tribunal has
arrived at, but on how the tribunal arrived at that result.
 The tribunal has the right to make errors, even serious ones as long as its
decision is not patently unreasonable and that its construction cannot be
rationally supported by the relevant legislation and demands intervention by
the court upon review.
 Labour relations policy is for the specialized tribunal.
 The decision of the board was not patently unreasonable.
 No Canadian labour relations legislation grants an employer explicit
power to unilaterally change the terms and conditions of employment.
Different jurisdictions have declared that it shall be an unfair labour practice
to effect such a change without first bargaining collectively in respect of those
changes or unless a strike or lock-out has occurred.

Sopinka J.

 Does not agree that it is always necessary for the reviewing court to
ignore its own view of the merits of the decision under review. Any
adjudication upon the reasonableness of a decision must involve an
evaluation of the merits. Reasonableness is not a quality that exists in
isolation.
 Curial deference does not come in until the court finds itself in
disagreement with the tribunal.

Wilson J. (dissenting)

 She did not agree that an employer could bargain in good faith towards a
new collective agreement while at the same time imposing detrimental terms
upon the employees which he knows have already been rejected.

L=Heureux-Dube (dissenting)

 The general references to Aan employer@ leave no doubt that the Board
is engaged in an attempt to fill the void in the Labour Code with respect to the
unilateral alteration of terms after the expiration of the collective agreement.
  It is established that an administrative tribunal exceeds its jurisdiction
because of error only if: (1) it errs in a patently unreasonable manner in
respect of a question which is within its jurisdiction; or (2) it commits a simple
error in respect of a legislative provision limiting the tribunal=s powers.
Unlike La Forest she did not think the Board=s decision was reasonable.

National Corn Growers Assn. v. Canada (Import Tribunal)

Legal Reasoning:

 In the presence of a privative clause, courts will only interfere with the
findings of a specialized tribunal where it is found that the decision of that
tribunal cannot be sustained on any reasonable interpretation of the facts or
the law.

Wilson (dissent)
 The court should not interfere with the Canadian Import Tribunal=s
interpretation of s.42 of the Special Import Measures Act. It came to be
recognized that the process of running a modern administrative state
required:

50. Officials be allowed a certain degree of discretion.

51. That the decisions of tribunals should not be subject to the same extensive form
of review as the decisions of courts, the type of evidence that can be led, can rely
on matters and facts not admitted into evidence.
 CUPE is the starting point for any discussion of the appropriate standard
of review of an administrative tribunal=s interpretation of its constitutive
legislation. Courts have come to accept that they may not be as well qualified
as an agency to provide interpretations of that agency=s constitutive statute
that make sense given the broad policy context within each agency works.

Lester (W.W.) (1978) Ltd. v. United Assn. of Journeymen etc. of the

Plumbing and Pipefitting Industry, Local 740

Facts:
 There were two companies Planet and Lester that bid on contracts. One
bid on union contracts, the other bid on non-union contracts. They had the
same management. This is known as Adouble breasting@.
 The Union brought an unfair labour practices complain.
 The Board granted a successorship declaration (with one member
dissenting).
 The Trial Division dismissed an application to overturn the Board.
 The Court of Appeal found the decision of the Board patently
unreasonable.

Disposition: The appeal is dismissed.

Legal Reasoning:
Wilson J. (dissenting)

 Section 89 is designed to prevent the loss of union protection by

employees whose company=s business is sold or transferred to another
business concern. This is a successor provision, common in all provincial
labour legislation.
 In applying the test of patent unreasonableness it is important to
remember that the test is a stringent one.

L=Heureux Dube J. (dissenting)

 The Board=s decision was not patently unreasonable in the context of the
Act.

McLachlin J.

 Assuming the tribunal had the initial jurisdiction to determine whether or

not a sale, lease, transfer or other disposition occurred, the next question is
whether its determination that a disposition in fact occurred was patently
unreasonable and thereby constitutes an excess of jurisdiction.
 The test for review is a severe test. The question is whether there are
errors which establish that the Labour Relations Board in this case was
acting beyond its jurisdiction. The courts must not defer to decisions that are
patently unreasonable.
 Newfoundland does not have common employer provisions.
 To determine whether the business or part of the business has been
disposed of, most boards examine the nature of the predecessor business,
and the nature of the successor business determines if the business of the
predecessor is being performed by the successor.
 The finding of successorship based on the common shareholdings and a
common business enterprise is clearly insufficient on the established
jurisprudence to bring the case within section 89 of the Act. Nor is it sufficient
to show that the same people own or work for both companies. What must be
established is that the first company must have conveyed some aspect of the
business to the second company.
 The evidence indicates that both companies cooperated by they
continued to operate independently and there was no evidence that the work
which would have gone to the union company was pass through the non-
union company.
 The absence of evidence establishing a transfer or disposition under s.89
of that Act renders the decision of the Board patently unreasonable.

Domtar Inc. v. Quebec (commission d=appel en matiere de lesions

professionnelles)

Facts:
 Lapointe, an employee of Domtar was injured three days before the plant
closed. Domtar offered to compensate Lapointe for the 3 days of lost wages,
 rather than the 14 days of his disability. The WCC agreed with the company
because the plant was closed for the rest of the time that Lapoint=s injury
would have prevented him from working.
 The appellate tribunal (CALP) disagreed, and ordered Domtar to pay 90%
of the wages for the 14 days that Lapointe would have lost through the injury,
had the plant been in operation. The dispute centred around the interpreation
of section 60 of the AIAOD.

Disposition:

Legal Reasoning:
L=Heureux-Dube J.

 The initial step advocated by the SCC focus on the concept of jurisdiction.
Bibeault explains the meaning of the concept of jurisdiction in the context of
judicial review as follows: In order to adequately deal with the question, Adid
the legislator intend the question to be within the jurisdiction conferred on the
tribunal?@
 A court examines not only the purpose of the statute creating the tribunal,
the reason for its existence, the area of expertise of its members and the
nature of the problem before the tribunal.
 The legislature did not intend to give the CALP the power to make a final
ruling on the meaning of section 60.
 Since the interpretation of section 60 is within the jurisdiction of the CALP,
the standard of review applicable here is whether the decision was patently
unreasonable.
 Its decision was not patently unreasonable since it did not go beyond the
limits laid down by the legislature.
 There are two tests: correctness and reasonableness.
 Within the reasonableness test, the board does not have to be correct but
reasonable. This means that you can have different outcomes for the same
case.

52. The court appears to be willing to review only on the correctness question that
goes to the essential mandate of the decision-maker.

53. The courts may review the qualifications of the decision-maker so as to place the
standard of review somewhere between the sliding scale, i.e., if experts curial
deference is more likely, if generalists, less likely to apply curial deference.

54. How do you determine the relative expertise of the experts?

 Legal degree?
 Part-time/full-time appointment?
 If he/she was appointed by government or another?
 How many decisions has the chairman made/how many
overturned?
 Miscellaneous relevant factors.

55. The court seemed to suggest they will review on correctness test if the decision of
the board is general in nature.
 56. Where the specialized jurisdiction of an administrative body is protected by a
privative clause the PU standard of review has a specific purpose; ensuring that
review of the correctness of an administrative interpretation does not serve, as it
has in the past, as a screen for intervention based on the merits of a given
decision.

57. For the purposes of judicial review, statutory interpretation has ceased to be a
necessarily exact science and the SCC has confirmed the rule of curial deference.

Dayco (Canada) v. CAW-Canada

Note:

The Court characterized as jurisdictional the question whether an employer=s refusal to

pay to retirees certain benefits after the expiry of a collective agreement can be referred
to an arbitrator. To withstand judicial review, the arbitrators ruling must therefore be
correct. It was not strictly necessary, therefore, for the Court to consider the effect of the
intensity of judicial review of section 44 of the Ontario Labour Relatons Act.
Nevertheless, the Court took this opportunity to address this issue explicitly for the first
time since CUPE.

La Forest J.
 The privative clause in s.108 applies only to the board, and there is no
comparable provision with respect to the arbitrator. The union contended that
the phrase ‘final and binding between the parties’ in s.44 constituted a
privative clause but this had limited privative effect in this appeal.
 Once it has been determined that a tribunal was correct in concluding that
the issue to be decided was properly before it according to its enabling
legislation, then a court can only intervene if the decision reached was
patently unreasonable.

United Brotherhood of Carpenters and Joiners of America, Local 579 v.

Bradco Construction Ltd.

Facts:
 The appellant union, representing the employees of the respondent
Bradco, alleged that, since Dobbin and Bradco were related companies, the
use of non union labour by Dobbin was a breach of the collective agreement
between the union and Bradco.
 The arbitrator found that Dobbin was related to Bradco. The companies
shared premises, used common facilities and, for all practical purposes, were
owned and managed by the same persons. He held that Bradco was in
breach when Dobbin employed non-union labour to work on the site where it
had a contract to build.
 An application for certiorari to quash the award was dismissed at first
instance.
 The Newfoundland Court of Appeal reversed the decision of the Trial
Division.
Issues:
 The issues raised by this appeal are the appropriate standard of review to
be applied to the arbitrator=s decision given the absence of a full privative
clause, the degree to which labour relations arbitrators or boards may admit
and rely on extrinsic evidence to interpret a collective agreement, and lastly,
whether the arbitrator erred in a reviewable manner either in finding
ambiguity in Article 4 of the collective agreement or in concluding that the
agreement had been breached by Bradco in the circumstances.

Disposition: The appeal is allowed.

Legal Reasoning:
Sopinka J.

 The legislative provisions in question must be interpreted in light of the

nature of the particular tribunal and the type of questions which are entrusted
to it.
 Where the relevant legislative provision is a true privative caluse, judicial
review is limited to errors of jurisdiction resulting from an error in interpreting
a legislative provision limiting the tribunals powers or a patently
unreasonable error on a question of law otherwise within the tribunal=s
jurisdiction.
 The rationale for deferring to an arbitrator =s interpretation of a collective
agreement does not necessarily afford deference to a finding of law made by
the arbitrator.
 Generally, these are not matters within the expertise of the arbitrator, and
in the absence of legislative intention that deference should be paid to the
findings of law made by an arbitrator, such findings would be reviewable on a
standard of correctness.
 The legislature did not intend s.88(2) to restrict judicial review of decisions
of the arbitrator except as to jurisdictional matters.
 Section 88(2) falls somewhere between a full privative clause and a
clause providing for full review by way of appeal. While it does not provide
that the decision of the arbitrator is protected from review on any ground of
law or fact, it similarly does not provide specifically for appeal or review on
these grounds. It simply provides that the arbitrator=s decision will amount to
a final settlement of the dispute. The question is what the legislature intended
by use of this phrase, and specifically whether the phrase mandates the
deference of the court to the particular decision made by the arbitrator in this
case.

Chapter Sixteen

Standing

Standing In Judicial Review Proceedings

 F
inlay v. Canada (Minister of Finance)

Public Interest Groups

E
nergy Probe v. Atomic Energy Control Board

Canadian Council of Churches v. Canada (Minister of Employment and

Immigration)

Business Competitors

Rothmans of Pall Mall Ltd. v. Minister of National Revenue (No. 1)

The Role of the Attorney General

Gouriet v. Union of Post Office Workers

Energy Probe v. Atomic Energy Control Board

The Status of Authority Under Attack

Ferguson Bus Lines Ltd. v. ATU, Local 1374

Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers

of America, Local-69

Standing and Intervention before Tribunals

Re American Airlines, Inc. and Competition Tribunal

Finlay v. Canada (Minister of Finance)

Facts:
 Finlay was a resident of Manitoba who wanted injunctive relief. He had
been overpaid on his social assistance and now his payments were cut and
he was below the poverty line. This was the result of an administrative error.
 The error was the fault of the provincial government. He argued that the
transfer payments from the federal government to the provincial government
were illegal. He is trying to force the provincial government to comply with the
plan. He goes after the federal government so that the province is forced to
comply with the plan.

Issue:
 Does Finlay have standing?

Disposition: Finlay is granted standing.

Legal Reasoning:

 Have to determine whether the issue is judiciable. Is this a matter that a

court will entertain. The court said this was the kind of matter it could
entertain. It expanded the nature of standing.
 The court then went on to discuss the role of the Attorney-General.
o AG is the only one entitled to bring a public-interest matter.
o Has discretion as to whether they should apply to the court for an
injunction.
o AG=s decision is often political.
 Finlay fail=s the traditional test:
o Decrease in payment was not sufficient to bring him into the
common law test. It was too indirect. The problem was really with the
province.
 The court then went on to talk about what happens if you fail the common
law test. There was another way that Finlay could get standing:
o Has to be judiciable.
o Must be serious issue and the citizen must have a genuine interest
(not just peculiar to you)
o No other reasonable effective method which case could come to
court.
 The court did not require that Finlay as the AG first.
 Make sure these cases get to court in the first place, in some cases the
Attorney General would be in a conflict of interest.
 Allows the court to get all the information and deal with all the issues.

Energy Probe v. Atomic Energy Control Board

Facts:
 Energy Probe is a lobby group. It made representations to the AECB.
When it made the decision Energy Probe was not happy and sought judicial
review. AECB challenged this. There was no statutory requirement that
hearings be held. The issue was whether Energy Probe should have
standing. The court looked at the three issues that were laid down in Finlay
for those situations where the applicant did not meet the common law test.
Energy Probe had standing even though it wasn=t an aggrieved person.

Disposition: The application is dismissed.

Legal Reasoning:
Reed J.

 Even without reference to Thorson, McNeil and Borowski, the applicant is

in a position to justify it being granted standing to apply for a writ of certiorari.
The fact that it is a serious public interest group and that it made
representations to the Atomic Energy Control Borard with respect to the
decision being challenged (even though pursuant to the practice of the Board
rather than pursuant to any statutory entitlement) would seem to justify the
Court exercising its discretion to grant the applicant standing.
Canadian Council of Churches v. Canada (Minister of Employment and
Immigration)

Facts:
 The Canadian Council of Churches, a federal corporation, represents the
interests of a broad group of member churches. Through an Inter-Church
Committee for Refugees it co-ordinates the work of the churches aimed at
the protection and resettlement of refugees.
 Parliament passed amendments to the Immigration Act that changed the
procedures for determining whether applicants come within the definition of
Convention Refugee.
 The Council sought a declaration that the amendment violated the
Charter.
 The Attorney General brought an action claiming the Council did not have
standing to bring an action.

Disposition: The Council=s application was dismissed and the Attorney

General=s appeal was allowed.

Legal Reasoning:
Cory J.

 In Finlay it was recognized that the traditional concerns about widening

access to the courts are addressed by the conditions imposed for the
exercise of judicial discretion to grant public interest standing set out in the
trilogy.
 The need to grant public interest standing in some circumstances does
not amount to a blanket approval to grant standing to all who wish to litigate
an issue. The granting of public interest standing is not required when, on the
balance of probabilities, it can be shown that the measure will be subject to
attack by a private litigant.
 The best ones to attack the claim are the refugees not the council.

Rothmans of Pall Mall Ltd. v. Minister of National Revenue (No. 1)

Facts:
 This case involved a claim by the appellant that it should have been
Aheard@ before the Department of National Revenue adopted a new
Ainterpretation@ of the word Acigarette@ for revenue purposes. The change
had resulted from an approach to the department by two other cigarette
markets. The appellant itself was not interested in brining out a cigarette of
the length facilitated by the change in the Ainterpretation.@

Issue:
 Whether the appellant had Astatus or locus standi@ to obtain any of the
relief sought?

Disposition: The appeal is dismissed.

Legal Reasoning:
Le Dain J.

 The appellant did not have a genuine grievance entitling them to

challenge the legal proceedings the interpretation which the respondent
officials have given to the definition of Acigarette@ in section 6 of the Excise
Act for purposes of their administrative application of the Act.
 The present case is not one that raises any question of the limits of
statutory authority. The most that is raised is a question of administrative
interpretation that the authorities are obliged to make in their application of
the governing statute.
 There is no duty to act judicially or fairly in a procedural sense. In so far
as mandamus is concerned, there is no public duty of any kind that the
appellants have a right to enforce.

Gouriet v. Union of Post Office Workers

Facts:
 Gouriet made an attempt to prevent the Union of Postal Workers from
causing its members not to handle mail between England and Wales, and
South Africa for a week. The basis for the relief that was sought that to so
interfere with mail would constitute a criminal offence. The Attorney General
refused to lend Gouriet his name for the purpose of the relator proceedings
so Gouriet issued a writ in his own name.
 The case eventually reached the House of Lords on appeal form a
decision of the Court of Appeal holding the plaintiff entitled to an interim
injunction against the union so that he could seek declaratory relief at the
ultimate trial of the action. The Court of Appeal did dismiss the plaintiff=s
claim to a permanent injunction.

Disposition: The appeal is dismissed.

Legal Reasoning:
Lord Edmund-Davies

 There is a massive body of law supporting the proposition that only the
Attorney General can seek and obtain injunctive relief in relation to criminal
acts, whether threatened or committed which do not also involve the invasion
of private rights of person and property, though it is clearly desirable that he
should take extreme care before deciding to exercise it.
 But it is not the law that every criminal act must lead to a prosecution.
 He had standing to protect his private rights.

Energy Probe v. Atomic Energy Control Board

Facts:
 This was the case where it was alleged that one of the members of the
board had a pecuniary interest in the outcome of the case.

Issue:
  Whether the Attorney General should be granted full standing?

Disposition: The Attorney General should be granted full standing.

Legal Reasoning
Reed J.

 The Attorney General had a direct interest in the outcome of the case.
 The Attorney General was appearing to protect a Crown interest which at
one level is not qualitatively different from the right given to any person to
appear before a court to make representations when his interest will be
affected by a decision of the Court.
 Secondly, the issue before the Court is one of general public importance
and of such a nature that the Court deems it beneficial to hear the argument
of the Attorney General on the issue in order to ensure that all arguments are
adequately canvassed.

Ferguson Bus Lines Ltd. v. ATU, Local 1374

Facts:
 This involved an application to review and set aside a determination by
the Canada Labour Relations Board that the employees represented by the
Atu were engaged in a federal undertaking and therefore subject to its
jurisdiction and that there had been a sale of a part of the relevant business
to Ferguson which thereby became bound by the existing collective
agreement between the previous owner and ATU. Before the Federal Court
of Appeal, the Borad attempted to justify its ruling on the constitutional status
of the undertaking and its determination that a sale of part of the business
had taken place.

Disposition: The application is granted.

Legal Reasoning:
Mahoney J.A.

 The decision of the Supreme Court of Canada in Paccar does not, vest
the board with a respectable excuse to demand to be heard in every case
where one of its decisions is alleged to be patently unreasonable.
 The board had no constitutional right to be heard.

Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers

of America, Local-69

Issue:
 At issue was the legal status of executive discussion by the whole of the
Ontario Labour Relations Board of cases before particular panels of the
Board. In this context, a question arose as to whether the Board should be
allowed to defend this practice.
Disposition: The Board is granted standing.
Legal Reasoning:
Osler J.

 We don not regard the word Amay@ as giving us discretion to refuse the
Board standing as a party. We consider that, both as a matter of right and in
any case as a proper exercise of our discretion, the Board should be heard
on the matter of the questioned procedure.