1 Administrative Law Overview relationship between courts and administrative bodies (executive) - administrative decisions subject to review from

the courts o judicial review Judicial Review - an individual challenges a governmental decision in the courts (common law tradition) Who is subject to judicial review - administrative/statutory decision makers o eg., cabinet, tribunals - someone who traces their authority to a statute is subject to admin law and judicial review Separation of Powers - legislature o delegates decision making power to the executive - executive - courts o interprets terms to which the legislature has delegated to the executive  terms of the statute that delegate where there is ambiguity and silence - Sovereign o as a person and as an office o office that endures beyond the person o representative of the sovereign Governor General o power of the sovereign diminished over time  checks and balances put in place Parliament - historically not democratic; rule by lords (property owners) - separate from the sovereign - ultimate authority of law subject to the constitution - lays out the powers of administrative action Privy Council - top federal civil servants who advise the PM s Office No clear cut separation of powers - parliament (legislative) o putting parliamentary agencies in place (executive function) o eg., information commission, privacy commissioner, elections Canada, human rights commissions - administrative bodies (executive) o legislating bylaws and regulations (legislative function)  subsidiary legislation o tribunals established by admin bodies (judiciary function) - courts (judicial) o interpretation and application of legislation (legislative function) Sources of Admin Law - statutes and subsidiary legislation (bylaw and regulations)

2 common law o standard of review analysis  to what degree the court should defer to the decision of an administrative actor o procedural fairness  all statutory decision makers must afford procedural fairness y how much fairness: depends on the context  right of notice and reply  right to decision by an impartial decision maker constitution o Constitution Act 1867; s7 of the Charter  division of powers: federal or provincial  s7 y life liberty and security of person y principle of fundamental justice o includes procedural fairness policies and practices of administrative decision makers

Hierarchy - constitution statutes common law policies/practices Day to Day Practical Relevance - policies/practices statutes common law constitution Distinct from Criminal Law - does not involve the application of penal sanctions, ie, the deprivation of liberty - different level of procedural fairness; not as high as criminal procedure o right of notice and reply o right to a decision by an impartial decision maker Private Actors - not subject to administrative law unless carrying out a statutory power or governmental function - eg. Technical Standards & Safety Authority (TSSA) and the downsview explosion o criticism: inadequacy of its inspection program  TSSA not independent from industry (it was prior to 1996)  should operate within a ministry for greater transparency y and therefore would be subject to administrative law Key Concepts - statutory decision maker - tribunals v agencies - judicial review o application/challenge pursuant to statutory right of appeal or common law o appeal to the courts - deference standard of review o courts will be cautious in overturning administrative actors in matters of substantive review - questions of law  decline to defer; - questions of fact  likely to defer

3 questions of mixed fact/law  very difficult to distinguish rules vs discretion o whether one should use rules(clear cut) or discretion (principle or guideline) polycentricity o consideration of wide ranging issues o wide ranging implications fairness (procedural; substantive) o decision making process vs outcome

pragmatic and functional review =standard correctness, reasonableness, patent unreasonable correctness and reasonableness Public Law - who decides what should happen when a decision is going to be made when it has implications for others besides the person making the decision o e.g., police officers stops you for a traffic infraction - normative o who should decide  to award a Nobel prize  to go to war  to set interest rates  to expropriate a piece of property  to appoint a superior court judge o defer to certain institutions to make decisions that affect us o in some cases, decisions are delegated to quasi-autonomous independent bodies from parliament  deference to expertise and impartiality; bodies that are not subject to public sway Who should decide Legislature - representation and accountability Administration - expertise, speed, organizational capacity Courts - independence, direct participation by the affected parties Each actor is defined also by its distinctive method of decision making - courts adjudicative process Concepts & Debates - is admin law about giving tolls to government to carry out the collective will of the people - controlling and hckeing the abuse of governmental power - judicial review ensures tha t governmental power is not abused Two key concepts (AV Dicey) rule of law and parliamentary sovereignty expert (late 1800s)

4 Parliamentary Sovereignty o positive and negative concept  power of parliament to make any rule it wishes so long as it accords with its own procedure  courts may not rule on the legality of what parliament has decided  s 52 of Constitution Act y gives court the ability declare a law of no force and effect y Dicey would criticize this section since he is a proponent of parliamentary supremacy o formalist conception of sovereignty  sovereignty as an office or status that you have or you do not  the sovereign is not a matter of degree Dicey had concern over tyranny of the majority and the increase of voting rights to the working class should not give wide discretion to administrative actors otherwise parliamentary supremacy would be undermined

Dicey: The rule of law - no one should suffer in body or in goods but for a distinct breach of law o civil liberty and property rights emphasis o entitled to know what the rules are before those rules are enforced against you  notice o rules cannot be retroactive  clear, predictable o criticism:  always some element of discretion - government and citizens alike are subject to the general law of the land o no one is above the law o criticism:  something different about a public office  different rights and responsibilities due to the nature of the office  rights and activities unique to government; special rights and powers as well as restraints ie Charter only applies to state actors - the law applying to government should be administered in the ordinary courts o reference to Superior Courts of England and Wales o SCC in Canada o independent from parliament o tenure for life o state guaranteed salary o administrative independence o institutional safeguards that do not apply to any other decision making body o as opposed to the French approach  separate court system for administrative issues - formalist approach o laws must be made by a set law making process - decision making o rule of law requires procedural fairness - separation of powers o role of independent courts in separation of powers

5 J. Willis The Administator as Judge The Citizen s Right to an Impartial Tribunal - Canadian commentator on administrative law - rule of law in modern society - rule of law can still be achieved even if Dicey s criteria is not satisfied - need to balance rule of law concerns against the complexity of modern government o limited access to courts  greater access to justice with dedicated tribunals o need for specialized expertise  judges are generalists  require specialized decision makers o non-judicial tribunals can be made independent and impartial  eg., OMB not appointed for life, but have a set salary, variety of institutional safeguards, 8 year term o more limited judicial review remains available  role should be limited to give respect to the specialized capabilities of administrative decision makers Willis: Models of Administrative Agencies Income Tax Appeal Board - in between Revenue and ordinary courts - a poor man s travelling court - gives greater impartiality when the revenue department makes a ruling that a taxpayer disagrees with - separate tribunal that exists within the government apparatus but separate from the civil servants applying the Income Tax Act o composed of 3 lawyers; no connection to revenue o specialist in tax o private sector lawyers o sole function to resolve dispute between revenue and the taxpayer - decisions may be appealed to the Federal Court - take decisions out of courts to enhance impartiality Workman s Compensation Board - workers give up the ability to sue for workplace injuries in exchange for guaranteed compensation of accepted claims o greater likelihood that injuries will be compensated as opposed to proving fault in tort - employers avoid lawsuits, pay premiums to support scheme - courts overburdened with labour/worker compensation disputes - political deal arising out of limitations of access to justice Public Utilities Board - a government in miniature - implements regulatory policy sketched out in broad statutory standards eg., according to public convenience and necessity or in the public interest - Dicey criticism: in the public interest wide discretion - regulation of public utilities highly technical and specialized field o concern that the generalist courts will get it wrong o expert decision makers are vulnerable to - specialized branch of government whose decision should not be reviewed in the courts

6 always limits to discretion

The Deference Question How should courts decide whether to defer to an administrative actor? - via reference to clear binary rules? - via consideration of relevant factors - via complete discretion of the individual judge Rules vs Degrees of Discretion - no one shall be admitted to law school who has less achieved than an 80% average or a 75th percentile on the LSAT.  binary  inflexible who lacks high academic qualifications.  not clear binary  standard that entails some discretion and guidance who has not demonstrated exceptional academic potential, extra-curricular commitment, relevant work experience, and/ or maturity.  list of factors, each factor carries its own component of discretion  discretion should not be based on other factors  exhaustive list  can constrain and contain discretion  favoured by the SCC when courts should defer to an administrative actor y 4 factors o presence or absence of privative clause o nature of the question decided by the decision maker o expertise of decision maker o overall context and purpose of statutory scheme who in the opinion of the admissions committee should not be admitted.  absolute discretion  however should not be abused - but note: application of even the clearest rule involves discretion Background to Judicial Review the superior courts (of each province) have inherent jurisdiction under the common law for judicial review primary remedies (the common law prerogative writs ): o certiorari o prohibition o mandamus o habeas corpus there are also statutory courts that carry out judicial review according to their statute: eg Federal Court of Canada (est. in 1971); Ontario Divisional Court (1970) finally, there are statutory rights of appeal to specified courts or tribunals

For the next class: Workman s Compensation - comparable entity today and how is it different and why

7 The Worker's Compensation Board, WSIBs predecessor was formed in 1914 through the passage of the Workmen's Compensation Act. In 1998 the Workplace Safety and Insurance Act was passed in Queen's Park. This resulted in the formation of the Workplace Safety & Insurance Board or WSIB which took over the functions of the previous board
No-fault collective liability The present name, WSIB, charts a new course. Before, the focus was on compensating those injured or ill, due to work-related causes. Today our mandate includes promoting the prevention of work-related injuries and illnesses. Through the changes introduced by the Workplace Safety and Insurance Act (1998), we now oversee Ontario's system of workplace safety education and training. We continue to administer the province's no-fault workplace insurance for employers and their workers. As part of this system, we provide disability benefits, monitor the quality of health care and assist in early, safe return to work for workers injured on the job or who contract an occupational disease.

Income Tax Appeal Board - now the Tax Court of Canada - tax appeals no longer heard by the Tax Appeal Board - wider jurisdiction within the realm of tax - attempt to maintain informality option - more separate from CRA - judges as opposed to administrators - access and speed vs independence Workmen s Compensation Board The Worker's Compensation Board, WSIBs predecessor was formed in 1914 through the passage of the Workmen's Compensation Act. In 1998 the Workplace Safety and Insurance Act was passed in Queen's Park. This resulted in the formation of the Workplace Safety & Insurance Board or WSIB which took over the functions of the previous board No-fault collective liability The present name, WSIB, charts a new course. Before, the focus was on compensating those injured or ill, due to work-related causes. Today our mandate includes promoting the prevention of work-related injuries and illnesses. Through the changes introduced by the Workplace Safety and Insurance Act (1998), we now oversee Ontario's system of workplace safety education and training. We continue to administer the province's no-fault workplace insurance for employers and their workers. As part of this system, we provide disability benefits, monitor the quality of health care and assist in early, safe return to work for workers injured on the job or who contract an occupational disease. - greater focus on prevention, public education - internal appeal process o WSIAT o administrative tribunal Public Utilities Board - Ontario Energy Board o regulates distributors o rate setter; context of a monopoly o achieve balance incentive to invest and consumer need o privatization of electricity and other energy sources - less of a shift towards an adjudicative process; courts have less expertise in this area

8 Background to Judicial Review - substantive review and procedural fairness - superior courts have inherent jurisdiction under the common law for judicial review o do not rely on a statute for their powers o derive their jurisdiction from the common law courts of England and Wales o divisional courts however usually engage in judicial review - if there is no administrative body appointed, may revert back to superior court for an answer - Primary remedies (the common law prerogative writs) Judicial Review Procedure Act o certiorari  courts says to the decision maker; show me that you have the authority to make this decision  requires a decision maker to produce a file which provides for the authority to which the decision maker is purporting to act o prohibition  power of court to prohibit a decision maker from carrying on a course of action pursuant to a statute o mandamus  requires a decision maker to carry out a particular action pursuant to a statute o habeas corpus  show me the body -if you have detained someone, must bring that person before the court y eg. prison administration  court may demand if the administration is holding someone so that it may ask questions of that person - there are also statutory courts that carry out judicial review according to their statute eg Federal Court of Canada (1971); Ontario Divisional Court (1970) o each court can exercise certain remedies - statutory rights of appeal to specified courts or tribunals Contextual Framework: who/where? - who exercised the power? where is the power located in terms of its statutory source/regulatory context Substantive Decision making: what/why? - what was the decision? why was it taken? Procedural Fairness: how? - how procedurally fair was the decision taken or the power exercised Remedy - are potential remedies available and of use - damages are not public law remedies Substantive Review: Standard of Review Analysis - results and outcome as opposed to the process that led to that decision Dunsmuir v New Brunswick, 2008, SCC 9 two key aspects for substantive review - how to decide on the standard of review standard of review analysis o whether court should defer to the decision maker  correctness standard no deference; reasonableness standard deference - how to apply the chosen standard

Notably, on procedural fairness, the decision overturns the common law requirement that public officers not be dismissed without a hearing - Knight o public officer who was to be dismissed was entitled to a hearing o requirement overturned o old: pragmatic & functional approach - originates in CUPE [1979] - from Baker [1999], pragmatic and functional approach was applied for all administrative decisions - now known as standard of review analysis Pre-Dunsmuir: Pragmatic and function approach - too complex and abstract of an approach Four factors: what standard of review to apply based on the four factors 1. relevant provisions and purpose of statute 2. presence of a privative clause and/or right of appeal in the statute 3. expertise of the decision-maker 4. nature of the question: fact, law, mixed fact and law, discretionary? o mixed fact/law: when the decision in question was such that law and fact were inextricably entwined Facts: -

D was a public servant and statutory office holder with the NB Department of Justice D was dismissed by NB without cause being alleged and without a hearing on dismissal, D was given 4.5 months salary in lieu of notice NB relied on s. 20 of Civil Services Act: Subject to the provisions of this Act and any other Act [termination] shall be governed by the ordinary rules of contract o whether this statute precluded review of the dismissal by an adjudicator

D grieved the dismissal under the NB Public Service Labour Relations Act o s. 97(2.1) of that Act stated: Where an adjudicator determines that an employee has been discharged or otherwise disciplined for cause and the collective agreement or arbitral award does not contain a specific penalty for the infraction that resulted in the employee being discharged or otherwise disciplined, the adjudicator may substitute such other penalty for the discharge or the discipline as to the adjudicator seems just and reasonable in all the circumstances. - whether this statutory provision allows D to challenge the decision or whether the Civil Services Act trumps the NB Public Service Labour Relations Act D asserted that the government had in reality dismissed him for cause and that he was entitled to seek reinstatement the government challenged the adjudicator s authority to go behind the dismissal to ascertain whether it was in reality for cause adjudicator rejected the government s challenge and determined that D s dismissal was related to his work performance (though it was not disciplinary) and was in fact for cause adjudicator ordered that D be reinstated because he was dismissed without a hearing

10 o o relied on Knight as a matter of procedural fairness public officer entitled to a hearing prior to being dismissed

on NB s application for judicial review, Rideout J. applied the standard of correctness and set aside the adjudicator s decision as incorrect in law o looks at the four factors and decides not to defer the NB Court of Appeal applied the standard of reasonableness, rather than correctness, and set aside the adjudicator s decision as unreasonable o defer to the decision maker however the adjudicator interpreted statute unreasonably

SCC: -

adjudicator s interpretation of the Act should be reviewed on a (new) standard of reasonableness o defer however still overrule the adjudicator s decision adjudicator s interpretation of the Public Service Labour Relations Act was unreasonable in separate opinions, Binnie J and Deschamps J adopted a reasonableness and a correctness standard, respectively, but agreed with the result that the adjudicator s decision should be deferred

Basic Principles - SCC majority: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers . o rule of law as a component of parliamentary sovereign o parliament is sovereign but the courts must review whether the admin actor has the power to make the decision it has o whether the admin actor has gone beyond its statutory power - SCC majority: [28] By virtue of the rule of law principle, all exercises of public authority must find their source of law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law, or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. o procedural fairness and substantive review o legality on a correctness standard o reasonableness matters you defer but review o fairness procedural fairness Adopting a new approach - majority: [32] . the operation of judicial review in Canada has been in a constant state of evolution over the years . Despite efforts to refine and clarify it, the present system has proven to be difficult to implement. The time has arrived to re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable. Pre-Dunsmuir

11 three standards of review o correctness (least deferential) o reasonableness (simpliciter) o patent unreasonableness (most deferential) Dunsmuir - Correctness - New Reasonableness Concept of Reasonableness - majority: [47] Reasonableness is a deferential standard animated by the principle that certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.... - In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. o justification, transparency, and intelligibility: reasons given for a decision Concept of Correctness - majority: [50] . When applying the correctness standard, a reviewing court will not show deference to the decision maker s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer . o analysis of the reasoning that leads to the substantive outcome 3 standards to 2 - reasonableness as a spectrum Binnie J s critique - Binnie J: [139] Contextualizing a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference. In practice, the result of today s decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one intersection to another . o confusion over reasonableness standard Factors in the Standard of Review Analysis A. Does the statute or existing jurisprudence indicate the standard? B. If not, look to the relevant factors: 1. privative clause (or right of appeal) 2. nature of the question 3. expertise 4. statutory purpose Role of Precedent -

12 majority: [57] An exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard . e.g. constitutional questions regarding the division of powers between Parliament and the provinces ; other constitutional issues

Standard of Review Analysis - majority: [64] The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. Privative Clauses - purports to limit scope of judicial review - NB Public Service Labour Relations Act (PLSRA) privative clause: o 101(1) Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court. o 101(2) No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, judicial review, or otherwise, to question, review, prohibit or restrain the Board, an arbitration tribunal or an adjudicator in any of its or his proceedings. - presence or absence of a privative clause is only one of four factors in determining whether or not to defer - majority: [52] The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. This does not mean, however, that the presence of a privative clause is determinative . - Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction. - Binnie J: [143] . Chief Justice Laskin during argument once memorably condemned the quashing of a labour board decision protected by a strong privative clause, by saying what s wrong with these people [the judges], can t they read? A system of judicial review based on the rule of law ought not to treat a privative clause as conclusive, but it is more than just another factor in the hopper of pragmatism and functionality. Its existence should presumptively foreclose judicial review on the basis of outcome on substantive grounds unless the applicant can show that the clause, properly interpreted, permits it or there is some legal reason why it cannot be given effect. o assigns greater weight to the privative clause than the majority Statutory Right of Appeal - not mentioned by the majority. - Binnie J: [123] In the absence of a full statutory right of appeal, the court ought generally to respect the exercise of the administrative discretion, particularly in the face of a privative clause.

13 o a full statutory right of appeal would weigh in favour of correctness Deschamps J: [163] . deference is not owed on questions of law where Parliament or a legislature has provided for a statutory right of review on such questions.

Nature of the Question - majority: [51] . As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. o if fact, discretion, policy, mixed fact and law reasonableness - majority: [53] Where the question is one of fact, discretion or policy, deference will usually apply automatically . We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated. [54] . Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity . - majority: [60] . courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator s specialized area of expertise . Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Questions of Jurisdiction - majority: [59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE [1979] . Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter . o whether tribunal had the authority to make the inquiry Expertise - majority: [54] . Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context . Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away from the strict position where it was held that an administrative decision maker will always risk having its interpretation of an external statute set aside upon judicial review. Expertise/Purpose - majority states: A discrete and special administrative regime in which the decision maker has special expertise as a factor leading to a reasonableness standard [para 55]

Determination of Review Analysis Determination of Standard - look to past precedent - resort to four factors if there is no precedent o correctness or reasonableness (spectrum) o previous standard may live on from statute or precedent (ie. patent unreasonableness)

14 Application of Standard Outcome of Judicial Review - judicial review will vary according to the standard employed Whether the methodology applies only to adjudicative tribunals or to all administrative decision makers? - interpretation: applies globally (confirmed in Khosa SCC), not just tribunals Alternative Approach of Deschamps and Rothstein JJ y Deschamps J: [158] . Any review starts with the identification of the questions at issue as questions of law, questions of fact or questions of mixed fact and law. Very little else needs to be done in order to determine whether deference needs to be shown to an administrative body. - [161] . when the issue is limited to questions of fact, there is no need to enquire into any other factor in order to determine that deference is owed to an administrative decision maker. Appropriate Standard - majority + Binnie J.: appropriate standard was reasonableness: o strong privative clause o labour relations context  what the appropriate role of the courts  courts traditionally viewed hostile to labour unions and workers  attempted to insulate decisions of labour tribunals from the courts  conflict of the courts in the labour relations context  strong interest of having the conflict resolve quickly  labour arbitration is desirable since it is consensual o legislative purpose of fast and cheap dispute resolution o the legal question was not both of central importance to the legal system and outside the adjudicator s expertise  question of law; statutory interpretation to decide extent of the authority bestowed upon the adjudicator  questions of law can still lead to deference - Deschamps, Charron and Rothstein JJ. would have applied a correctness standard o little or no deference o emphasis on question of law Application of Standard reasonableness - majority: adjudicator s decision, based on his interpretation of the two statutes, was unreasonable - i.e. it did not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law [para 47]) - majority [para 75]: o The decision of the adjudicator treated the appellant, a non-unionized employee, as a unionized employee . His interpretation of the PLRSA creates a requirement that the employer show cause before dismissal. - but is this an accurate statement? Result - the adjudicator: (a) rejected the employer s argument that he had no authority to look behind the employer s characterization of the dismissal as not for cause, (b) concluded that it was a disguised dismissal for cause, and

15 (c) ordered reinstatement on the basis that D was denied a hearing.  based on Knight Key question: did the adjudicator have the authority to look behind the employer s characterization of the dismissal as not for cause? Civil Services Act, s. 20: Subject to the provisions of this Act or any other Act, termination of the employment of a deputy head or an employee shall be governed by the ordinary rules of contract. o employer wants to be governed by the ordinary rules of contract; not the Knight decision o subject to the provisions of any other Act PSLRA, s. 100.1(2): An employee who is not in a bargaining unit may present to the employer a grievance with respect to the discharge, suspension or a financial penalty. PSLRA, s. 100.1(3): Where an employee has presented a grievance and the grievance has not been dealt with to the employee s satisfaction, the employee may refer the grievance to the Board who shall refer the grievance to an adjudicator appointed by the Board. PSLRA, s. 97(2.1): Where an adjudicator determines that an employee has been discharged or otherwise disciplined by the employer for cause and the collective agreement or arbitral award does not contain a specific penalty for the infraction that resulted in the employee being discharged or otherwise disciplined, the adjudicator may substitute such other penalty for the discharge or discipline as to the adjudicator seems just and reasonable in all the circumstances. o does this language give the adjudicator the authority to decide whether the dismissal was for cause  not clear  deference applies to legal interpretations arrived at by the decision maker  was this a reasonable interpretation that was defensible in terms of the law y where the statutory language is not clear y court s role is to determine whether the decision was within the range of reasonable interpretations

Critique - a reasonable interpretation that the adjudicator could reasonably conclude that he had the authority to decide whether the dismissal for cause Result - adjudicator: The employer can use the power to terminate on notice but not as a disguised manner of dismissing for cause. Where the dismissal is truly on notice, the only ground of grievance is that the period of notice is too short. However, if the employer either explicitly or under the guise of dismissing on notice is dismissing for cause, the employee can contest the cause and, if successful, seek reinstatement. - SCC majority: The employer can use the power to terminate on notice even when in reality the employer is terminating for cause. In such instances, the only ground of grievance is that the period of notice is too short. However, if the employer purports to dismiss for cause, the employee can contest the cause and, if successful, seek reinstatement. - both appear to be reasonable interpretations; however the SCC rejects the adjudicator s interpretation as outside the range of reasonableness - difference between something as correct or reasonable Substantive review - Privative (or preclusive ) clauses and statutory rights of appeal

16 The constitutional limits of privative clauses o Re Residential Tenancies Act [1981] o Crevier [1981]

Privative Clauses - statutory provisions that purport to oust the jurisdiction of the superior courts to review decisions of an administrative body - nevertheless, the courts may intervene in spite of a privative clause to protect the constitutionalized role of the superior courts or to ensure that an administrative body has not exceeded its jurisdiction - a full privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded . - yet a full privative clause may also exist: where the legislation employs words that purport to limit review but fall short of the traditional wording [in which case] it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference . o Pasiechnyk v. Saskatchewan (Workers Compensation Board), [1997] 2 S.C.R. 890 at para. 17 Full Privative Clause - Ontario Labour Relations Act, s. 116: o No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

Saskatchewan Workers Compensation Act, s. 22(2): o The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. whether the wording precludes any and all review by the court

Partial Privative Clauses - Immigration Act, s. 76(2) (an exclusive jurisdiction clause): o The Refugee Division has ....sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.  sole and exclusive jurisdiction y meant to convey that other tribunals do not have jurisdiction to decide over this particular issue - signals a degree of deference - New Brunswick Human Rights Act, s. 21(1) (a finality clause): o All orders and decisions of a Board of Inquiry are final and shall be made in writing, together with a written statement of the reasons therefor.... o final and binding  decision maker may not revisit its decision once it is made  weighs in favour of deference

17 Statutory Rights of Appeal - may depend on provisions in: o the enabling Act of the decision-maker o a subject-specific Act, e.g. Human Rights Code  that governs this area of decision making o general legislation, e.g. Federal Court Act; Judicial Review Procedures Act - may indicate: o time limits o to whom to appeal  another tribunal, specific court o notice of appeal to specific parties  the tribunal, minister o basis for appellate jurisdiction  question of law/fact or both o extent of appellate jurisdiction  the power that the reviewing court has  power of the court y confirm, vary or rescind the decision below y order rehearing Ontario Health Protection and Promotion Act, s. 46: o (1) Any party to the proceedings before the [Health Services Appeal and Review Board] under this Act may appeal from its decision or order to the Divisional Court in accordance with the rules of court . o (5) An appeal under this section may be made on questions of law or fact or both and the court may confirm, alter or rescind the decision of the Board or the court may refer the matter back to the Board for rehearing . o broad statutory right of appeal : law or fact or both

Immigration and Refugee Protection Act, s. 74 and 162(1): - 74. Judicial review is subject to the following provisions: (d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge [of the Federal Court who granted leave to appeal a decision of a Division of the Board] certifies that a serious question of general importance is involved and states the question . o limitation of the right of appeal o appeal with leave from judge - 162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. o partial privative clause o each division of the board has exclusive jurisdiction o subject to a right of appeal with leave provincial legislature has constitutional limits as to what kinds of tribunals it can create Constitutional Limits to Provincial Tribunals: Re Residential Tenancies Act (1981) 1 SCR 714 (Ont) - establishment of Ontario Residential Tenancies Commission - powers to make orders evicting tenants from residential premises and to require landlords and tenants to comply with obligations under the Act

18 provincial authority to establish Commission challenged by Attorney General of Canada and by both landlord and tenant organizations - s 96 Constitution Act o appointment by the GG of judges to superior courts o federally appointed o creation of ORTC offends s 96  usurping the appointments power of the federal government  displacing the role of the superior courts  ultra vires constitutional authority of the provincial legislature Re Residential Tenancies Act Under s. 92(14) of the British North America Act (now the Constitution Act, 1867) the provincial legislatures have the legislative powers in relation to the administration of justice in the province. This is a wide power but subject to subtraction of ss. 96 to 100 in favour of the federal authority. Under s. 96 the Governor General has the sole power to appoint the judges of the Superior Courts. Under s. 97 the judges who are to be appointed are to be selected from the respective bars of each province. Section 92(14) and ss. 96 to 100 represent one of the most important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. (para 27) o traditional view: provincial tribunals could not be established o moderate view: so long as the courts maintained their authority to review questions of o Hogg: judicature provision do not limit the creation of provincial tribunals at all - three questions re: the constitutionality of Ontario s Residential Tenancies Commission: 1. Does the power or jurisdiction conform to the power or jurisdiction exercised by superior courts at the time of Confederation? a. historical inquiry b. if yes, then 2. Can the power, viewed in its institutional setting, still be considered a judicial function? a. what is the nature of the function of the tribunal b. is the tribunal acting like a court in applying rules to resolve disputes between parties c. if yes, then 3. Is the function of the tribunal sufficiently wide-ranging or altered so as to negate the courts exclusive jurisdiction? a. contextual inquiry b. ORTC was carrying on adjudicative activities i. were the adjudicative activities incidental - here, the Commission was outside provincial authority - AGO: courts are too expensive, cumbersome new method of decision making - more accepting of provincial tribunal so long as the courts retain the ability to review the tribunals decision on questions of jurisdiction Crevier (1981) 2 SCR 220 (Que) - establishment of the Quebec Professional Tribunal to hear appeals from professional disciplinary committees - broadly-worded privative clause precluded any recourse to the superior court against members of the Tribunal -

19 Laskin CJC: TEST 1. Was the power exercised by superior courts at the time of confederation? Yes 2. Is it a judicial power? Yes: The [Tribunal] is not so much integrated into any scheme as it is sitting on top of the various schemes and with an authority detached from them... (para 17) role of the tribunal is to hear appeals and decide questions of law/fact and resolve disputes in an adjudicative setting 3. Has the power changed sufficiently? No. - However the scheme might have been saved had the statute s privative clause preserved the courts supervisory authority on questions of jurisdiction. = unconstitutional - judicature provision limit the authority of the province to create an adjudicative tribunal and to insulate those decisions from review on questions of jurisdiction

Crevier This court has hitherto been content to look at privative clauses in terms of proper construction and, no doubt, with a disposition to read them narrowly against the long history of judicial review on questions of law and questions of jurisdiction. Where, however, questions of law have been specifically covered in a privative enactment, this Court has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction . The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. (para 24). - cannot preclude review on questions of jurisdiction

Limits of Privative Clauses - what possible justifications exist for judicial intervention in the face of a privative clause? o federal-provincial division of powers; especially the existing balance of power in the appointments process (Constitution Act 1867, s. 96) o need to ensure executive does not exceed scope of its jurisdiction as delegated by the legislature o danger of coordinated legislative-executive abuse of individual rights but how much power should shift to the courts? next class: - expertise and statutory purpose Expertise and Statutory Purpose - eg of deteference to a specialized tribunal/disciplinary committee in spite of a braod right of appeal in the statute o Southam 1997 o Ryan 2003 Southam [1997] 1 SCR 748 - Southam owned the two daily newspapers that served Vancouver and the surrounding region - Many local newspapers also served this region - Southam sought to undercut them by starting a competing flyer service and bi-weekly paper

20 Southam then bought up local papers in the region in 16 months, it owned/ controlled 13 community papers, a real estate advertising publication, three distribution services, and two printers Southam later discontinued its flyer service and bi-weekly paper Director of Investigation and Research of federal Competition Tribunal applies for an order that Southam divest itself of three local papers Application made on basis that their acquisition by Southam was likely to lessen competition substantially in the retail print advertising and real estate print advertising markets in the Lower Mainland o mandate: to ensure that prices of retail print and real estate print advertising are competitive Competition Tribunal granted order only with respect to the real estate print advertising market on the North Shore o disagrees with Director o Distinction in the order was drawn on the basis that daily and local papers were not in the same market Federal Court of Appeal overturned the Tribunal s delineation of markets and substituted its own decision more in line with the Director s decision

SCC FCA did not show sufficient deference to the tribunal

Iacobucci J - question of mixed fact and law : questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests . In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact (para 21-23). o questions of law are highly general  no deference; correctness standard o questions of fact are highly specific o mixed: when you apply the facts to the law - issue: whether there was a substantial lessening of competition o difficult to assign to either solely a question of law or fact Questions of Mixed Law and Fact - Dunsmuir majority (para 53): the same [reasonableness] standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated . Iacobucci J expertise and statutory purpose: The aims of the Act are more economic than they are strictly legal . The efficiency and adaptability of the Canadian economy and the relationships among Canadian companies and their foreign competitors are matters that business women and men and economists are better able to understand than is a typical judge. Perhaps recognizing this, Parliament created a specialized Competition Tribunal . (para 34) Iacobucci J standard of review cont.:

21 Expertise, which in this case overlaps with the purpose of the statute that the tribunal administers, is the most important of the factors that a court must consider in settling on a standard of review . the Tribunal s expertise lies in economics and in commerce . The preponderance of lay members [on the Tribunal] reflects the judgment of Parliament that, for purposes of administering the Competition Act, economic or commercial expertise is more desirable and important than legal acumen. (para 35-36) o composition of tribunal: 4 fed court judges, 8 lay persons o when deciding questions of law: 4 judges o when deciding questions of fact or mixed fact/law: all 12 members participate in the decision o legislative intent

Reasonableness Standard (third standard introduced after correctness and patent unreasonableness) - Iacobucci J. re new middle ground deferential standard of reasonableness simpliciter - note that the discussion of this aspect (esp. para 39-45) is now subject to Dunsmuir: o distinction based on immediacy or obviousness of the defect (para 42) is now clearly gone  no longer applicable post-Dunsmuir o unclear whether admonition against courts re-weighing factors (para 47 and 51) survives Dunsmuir Iacobucci J defers to Tribunal s conclusions re whether the papers were in the same market: . It is reasonable, if only reasonable, to suppose that advertisers are sufficiently discerning about the media they employ that they are unlikely to respond to changes in the relative prices of the two kinds of newspapers by taking their business from the one to the other . It is perfectly consistent to distinguish between the broadcast media and the print media on one ground and to distinguish further between two kinds of print media on another ground. Broadcasters attract advertisers who want to convey an image (para 53-55) - retail print advertising o local papers o daily newspapers o finding of tribunal: serve different markets  not sufficiently substitutable; no concern of lessening of competition since they are in different markets Iacobucci J. defers to Tribunal s re weighting : It is possible that if I were deciding this case de novo, I might not dismiss so readily as the Tribunal did what is admittedly weighty evidence of inter-industry competition. it is very revealing that Southam s own expert, an American newspaper consultant, identified the community newspapers as the source of Southam s difficulties on the Lower Mainland . In that sense, the Tribunal s finding is difficult to accept. However, it is not unreasonable. The Tribunal explained that Southam was mistaken about who its competitors were . (para 64) - is the answer reasonable vs is the answer correct Iacobucci J. judicial self-discipline: I wish to observe that a reviewer, and even one who has embarked upon review on a standard of reasonableness simpliciter, will often be tempted to find some way to intervene when the reviewer himself or herself would have come to a conclusion opposite to the

22 tribunal s. Appellate courts must resist this temptation . Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system of judicial review is to be fashioned. (para 65) Ryan [2003] 1 SCR 247 (NB) - decision by New Brunswick Law Society s Discipline Committee to disbar lawyer o representing client dismissed from employment o over the course of 5yrs, deceived clients into believing he had been working on their case - NB Court of Appeal substituted the remedy of indefinite suspension, subject to conditions - NB CA applied standard of reasonableness but said: on the spectrum this standard is closer to correctness than patent unreasonableness. This is particularly so, as here, when you have the most serious of sanctions being considered SCC Iacobucci J: - in spite of a broad statutory right of appeal, the Committee was entitled to deference in light of its expertise, the statutory purpose, and the fact that the question was one of mixed fact and law o expertise o stat purpose  preamble of the Act  self-regulative body o mix fact and law - original decision to disbar was not unreasonable - also: there are only three standards of review, not a spectrum of innumerable standards; but assume Dunsmuir has now changed this Class Example Bio-Sewage Plant Authorization Act of Ontario What is relevant to the following factors: Privative Clause - s 23 decisions of the commission are in any event, final o weak or partial privative clause; finality clause o commission is not to revisit its own decision o weighs in favour of deference Right of Appeal - s 23 appeal to the Divisional Court on a question of law o weak right of appeal: little deference Expertise - s 22 one member: legal expertise; other members: extensive experience in sewage treatment - in this case: 2 rural planners and a law student - 1-3 members might be legal - s 21 professional merit, personal integrity adjudicative independence Statutory Purpose - s 1 promotion of a commercial market for biosewage products in Ontario and - the assurance of responsible conduct by businesses allowed to operate within that market - s 12 b-c

23

Pezim [1994] 2 SCR 557 (BC) (additional reading only) - interpretation of the term material change by the BC Securities Commission re: suspension of two securities brokers - interpretation (and suspension) overturned by BC Court of Appeal on correctness standard, noting statutory right of appeal - Iacobucci J: need for considerable deference given the complexities of securities regulation, the expertise of the Commission, and fact that the decision went to the core of its mandate Post-Dunsmuir debate re: expertise and rights of appeal Rothstein J (separate reasons), Khosa, 2009 SCC 12: 87. [Pezim s] approach of judicially imputing expertise, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature s recognition of relative tribunal expertise. - 88. I do not believe that the longevity of Pezim should stand in the way of this Court s recent attempts to return conceptual clarity to the application of standard of review. . 90. where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. Binnie J (+6), Khosa, 2009 SCC 12: 23. Rothstein J. writes that the Court s depart[ed] from the conceptual origin of standard of review in Pezim . Pezim was a unanimous decision of the Court which deferred to the expertise of a specialized tribunal in the interpretation of provisions of the [B.C.] Securities Act , despite the presence of a right of appeal and the absence of a privative clause. . - 26. Pezim has been cited and applied in numerous cases over the last 15 years. Its teaching is reflected in Dunsmuir. With respect, I would reject my colleague s effort to roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess. Substantive review Nature of the question/ disaggregation - Pushpanathan [1998] - Dr. Q [2003] - Smyth [2008] (Ont CA) Disaggregation (additional reading) - Lvis [2007] - VIA Rail [2007] Recall Dunsmuir Deference will usually apply automatically : - questions of fact - questions of discretion or policy - questions where the legal and factual issues are intertwined and cannot be readily separated where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity

24 Courts will continue to substitute their own view on: - constitutional questions - questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator s specialized area of expertise true questions of jurisdiction or vires Pushpanathan [1998] 1 SCR 982 (Can) general question of law correctness standard - IRB order to deport permanent resident following conviction for a serious narcotics offence - deportation conditional on his not being a refugee - refugee claim denied by Immigration & Refugee Board because claimant found guilty of acts contrary to the purposes and principles of the United Nations (i.e. drug trafficking) = an exception to the right to claim refugee status pursuant to the UN Refugee Convention o refugee protection is not extended to individuals convicted of such acts Bastarache J. (SCC): - Immigration and Refugee Board erred in law by characterizing narcotics offence as contrary to the purposes and principles of the United Nations - here, standard of review is correctness re: the IRB s interpretation of this exception to a basic human rights guarantee in the Refugee Convention o distinct question of law which had to be decided by a correctness standard - IRB interpretation of treaty: treaty provision involved basic human rights guarantee Expertise - displayed in various ways: specialized knowledge, familiarity with certain kinds of procedures, method of implementation of the distinctive statutory regime - admin decision makers are specialists relative to the courts who are generalists - field sensivity: greater familiarity/exposure how the Act should be implemented

weak privative clause: - 76(2) The Refugee Division has ....sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. - did not preclude all review limited right of appeal (from Federal Court): - 83(1) A judgment of the Federal Court... on an application for judicial review may be appealed to the Federal Court of Appeal only if the Federal Court has at the time of rendering judgment certified that a question of general importance is involved and has stated that question. - trial court certified the question

limited expertise in legal interpretation: The expertise of the Board is in accurately evaluating whether the criteria for refugee status has been met and, in particular, assessing the nature of the risk of persecution . Only 10 percent of the members of the Board are required to be lawyers and there is no requirement that there be a lawyer on every panel. While this may not be a liability for the purposes of assessing the risk of persecution it renders unthinkable reposing the broad definition of a basic human rights guarantee exclusively in the hands of the Board. (para 47) - questions the IRB s overall expertise in the interpretation of this particular question - expertise assessed in light of the nature of the question

25

why focus on the particular question of law and not on the whole decision of the IRB? Para 47: - why does the court disaggregate: court only focuses on one element of the decision o depends on how the parties have framed the issues in the litigation this case does not involve any significant impregnation of legal principle with fact, as demonstrated by the ease with which the reviewing court was able to extract a question of general importance for the purposes of s. 83(1). Here, the legal principle is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value. o question of law easily separated from the factual issues at stake with this determination, the tribunal is in fact seeking to stifle the application of its own expertise, rather than exercise it . o expertise of the IRB is in deciding refugee claims, not in the particular question of law which affected the outcome of refugee claim o IRB did not have expertise in deciding this question of law however it affected the outcome o IRB must decide whether there is a risk of persecution so, is the focus put on the question of law primarily because: - this is what was certified for appeal based on s. 83(1)? - the legal question has wide precedential value ? o general question of law upon which the tribunal does not have expertise which attracts correctness - the tribunal is limiting the scope of its own authority? Nature of Which Question - depending the question being asked, a different standard of review may be used - law correctness; fact reasonableness Dr. Q [2003] 1 SCR 226 (BC) - isolates a question of fact; reasonableness standard employed - decision by Inquiry Committee of College of Physicians that Dr. Q guilty of infamous conduct - finding that Dr took physical and emotional advantage of a patient based on the Committee s assessment of oral evidence + supplementary evidence - BC Supreme Court overturned the finding as unsafe on basis that the evidence was not sufficiently cogent o does not mention standard of review; deference - BC Court of Appeal upheld BC SC decision as not clearly wrong o fails to consider deference question as well McLachlin CJ (SCC): - trial judge inappropriately (implicitly) instructed herself to apply a correctness standard and engaged in a wide review of the evidence o looked at the evidence afresh and substituted her own decision - she in effect substituted her own views on the credibility of witnesses - BCCA should not have deferred to the trial court - nature of the problem a finding of credibility ; quintessentially a question of fact o between Dr Q and patient o weighs in favour of deference - nature of the question weighed against other factors that discounted deference (broad right of appeal; fact that the Committee was no more expert than a court on the question)

26 the Committee s interpretations of the evidence were not unreasonable whether the tribunal s conclusions were reasonable: plenty of evidence to support the committee s answer as reasonable

Smyth v. Perth and Smith Falls District Hospital [2008] (Ont CA) isolate question of jurisdiction - Hospital s Medical Advisory Committee recommended to Board of Directors that Dr. Smyth not be reappointed to the hospital (as required annually) o passed a resolution that he undergo an anger management program - S, the Hospital, and the MAC agreed to arbitration of all the disputes and matters and differences as identified in the arbitration agreement - the arbitration agreement referred to the factual circumstances in dispute and whether S had complied with a Board resolution directing S to undergo a conflict resolution program - the arbitrator ruled that S would not be reappointed but could resign - S sought to set aside the arbitration award pursuant to s. 46(1)(3) of the Arbitration Act, which allows a court to set aside an award where it deals with a dispute that the arbitration agreement does not cover o arbitration: a decision by two parties to take their dispute outside the court system and have their dispute resolved by an arbitrator - S argued, and Kershman J of the SCJ set aside the award on basis that, the arbitrator improperly heard evidence on the disposition of S s application for reappointment

MacPherson JA (Ont CA): - Kershman J implicitly applied a correctness standard; this was appropriate because S raised a jurisdictional issue, as described in Dunsmuir o language of the Arbitration Act was jurisdictional - however, the arbitration agreement had referred to S s application for reappointment: this arbitration will be the full and final determination with respect to Dr Smyth s reapplication for privileges at the Hospital - the arbitrator decided correctly that he had jurisdiction MacPherson JA: - besides the issue of jurisdiction, the decision was reasonable: o The arbitrator was a senior and experienced doctor and administrator chosen by the parties. He received substantial affidavit evidence and heard oral testimony from the witnesses, including Dr. Smyth. He prepared an 11-page arbitral award. He specifically addressed the two issues [He] then summarized the situation and his views in forthright fashion . (para 23-24): o 4 factors helpful in deciding whether a decision was reasonable Fact Scenario Nature of the Question - how would you characterize the question if you wanted the decision overturned, upheld? If you wanted the decision overturned - question of jurisdiction - upheld suspension so long as the plant not exceed 5 tonnes of production did not have jurisdiction with respect to production under 10 tonnes due respect for natural health

27 o not in the Act procedural fairness always subject to correctness

If you wanted the decision upheld - question of fact or mixed law and fact leading to a standard of reasonableness deference - suburban development priorities outweigh the commercial interest in this case mixed fact/law question - reasonable grounds that one of the criteria in s 12 has not been complied - 12 c what would be judged to be in the public interest - reasonable grounds that the public interest have not been complied with Substantive review discretionary decisions Roncarelli [1959] Baker [1999] Suresh [2002] Discretion & Policy re-call Dunsmuir (majority) re: nature of the question [53] Where the question is one of fact, discretion or policy, deference will usually apply automatically . We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated. Roncarelli [1959] SCR 121 (Que) - Maurice Duplessis: Premier of Quebec 1936-39 and 1944-59 - repression of Jehovah s Witnesses - Duplessis ordered liquor commission to revoke liquor license of Roncarelli - R had posted bail for Jehovah s Witnesses charged under municipal bylaws - Act Respecting Alcoholic Liquor, s 35: The Commission may cancel any permit at its discretion o wide power to issue or cancel liquor licenses or permits o discretionary administrative action was not traditionally reviewable by the courts - limits to discretion introduced Rand J: It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling... should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute.... o a statute has a purpose and delegates powers for that purpose o power must trace back to the purpose o implicit in the delegation of discretionary powers is the understanding that the discretion be used for the purpose of furthering the object of the statute . In public regulation of this sort there is no such thing as absolute and untrammelled discretion , that is that action can be taken on any ground for any reason that can be suggested to the mind of the administrator.... Discretion necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate.... Cartwright J (dissent, citing earlier Ashby case): A tribunal that dispenses justice, i.e. every judicial tribunal, is concerned with legal rights and liabilities, which means rights and liabilities conferred or imposed by law ; .

28 In contrast, non-judicial tribunals of the type called administrative have invariably based their decisions and orders, not on legal rights and liabilities, but on policy and expediency . A judicial tribunal looks for some law to guide it; an administrative tribunal, within its province, is a law unto itself. privilege vs rights distinction o rights review o privilege not reviewable

Discretion & Polycentricity - previously: silo approach discretionary decisions treated differently from other types of decisions discretionary decisions could previously be overturned for: o bad faith  had to show intent; difficult to prove o wrongful delegation of powers o fettering of discretion and refusal to address individual cases o acting under dictation of another o use of discretion to achieve a purpose not contemplated by grant of discretion o consideration of irrelevant factor or failure to consider relevant factor - since Baker [1999], discretionary decisions are subject to same standard of review analysis as other substantive decisions Baker [1999] 2 SCR 817 (Can) - substantive review and procedural fairness - deference in light of a discretionary decision - 5 factors that dictate the general level of fairness a person is entitled to expect - order to deport Ms Baker from Canada after 11 years in the country (illegally) - discretionary decision by immigration officials whether to allow Ms Baker to remain on humanitarian or compassionate considerations - children s aid, psychiatrist, lawyer provided supporting documentation - Ms Baker suffered from mental illness and had had four children in Canada - application denied by officer Caden on advice from (junior) officer Lorenz - requested reasons for decisions o given notes of officer Lorenz Was the denial of the application reasonable? Baker: notes of officer Lorenz PC is unemployed on Welfare. No income shown no assets. Has four Cdn.-born children four other children in Jamaica HAS A TOTAL OF EIGHT CHILDREN - Says only two children are in her direct custody. (No info on who has the other two). - There is nothing for her in Jamaica hasn t been there in a long time no longer close to her -children there no jobs there she has no skills other than as a domestic children would suffer can t take them with her and can t leave them with anyone here. Says has suffered from a mental disorder since 81 is now an outpatient and is improving. If sent back will have a relapse. - Letter from Children s Aid they say PC has been diagnosed as a paranoid schizophrenic children would suffer it returned - Letter of Aug. 93 from phychiatrist from Ont. Govm t.

29 Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when was 25 yrs. old. Is now an out-patient and is doing relatively well deportation would be an extremely stressful experience. Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PC s mental condition would suffer a setback if she is deported etc. This case is a catastrophy. It is also an indictment of our system that the client came as a visitor in Aug. 81, was not ordered deported until Dec. 92 and in APRIL 94 IS STILL HERE! The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. There is also a potential for violence see charge of assault with a weapon. o

Baker Arguments - did not consider best interest of the child (international treaty) Convention on the Rights of the Child - entitled to an oral hearing --rejected - legitimate expectation rejected - duty to give reasons: reasons were inadequate o courts: notes were sufficient - bias - substantive review should be reasonable Was the decision reasonable? - in Canada illegally - no assets, little contribution to the Canadian economy - however not enough weight to the h+c grounds o mentioned that she had 4 cdn born children  passing consideration  identifies the h/c grounds but discounts them Baker: decision on substantive review - standard of review = reasonableness : 4 factors of pragmatic and functional approach o no privative clause; limited right of appeal o some expertise of minister in immigration matters o high level of discretion delegated by Parliament, but with great significance for individuals o highly individualized and fact-based determination - notes of officer Lorenz reveal that exercise of discretion went beyond permissible bounds of statute and public international law o failure to give appropriate consideration to the factor of best interests of the child  the key value of concern in the h/c consideration - notes were dismissive in this value - best interest of the child o sources of law  purposes of the Immigration Act  Convention on the Rights of the Child

30 minister guidelines y do not mention best interest of the child however o imports provision of an international source in interpretation of a domestic law  no force of law until implemented by statute  cannot draw upon convention: not binding dissent Suresh [2002] 1 SCR 3 (Can) - judicial review of discretionary decisions - order to deport permanent resident on grounds of danger to the security of Canada o danger to the security of Canada: also includes danger to allies of Canada or assets in foreign states o danger to the Sri Lankan state - Mr Suresh was a senior figure in the Tamil Tigers (armed wing of the Tamil independence movement in Sri Lanka) - relevant substantive questions: o was Mr Suresh s presence in Canada a danger to the security of Canada ?  discretionary question for the Minister  if yes, should he still be deported on the basis of the following question: o did Mr Suresh face a substantial risk of torture on return to Sri Lanka? - what is the appropriate standard o in Baker reasonableness o Suresh: deportation invoked s 7 of the Charter: life, liberty, security of the person at stake  consequences of decision were severe - SCC commented on (but did not decide) the standard of review, emphasizing deference: o wide ministerial discretion in statute o right of appeal only with leave from FCTD o superior expertise of security agencies (citing Rehman [2001] UK HL) o statutory purpose requires polycentric balancing of humanitarian concerns against security - first question (national security): patent unreasonableness o highest level of deference - second question (risk of torture): suggests high deference, but does not commit to patent unreasonableness o deference - a quick retreat from Baker? o intervention in discretionary decisions (Baker) o national security context (Suresh) o deference takes its colour from context - what standard(s) would Dunsmuir lead to? o existing jurisprudence of Suresh o would patent unreasonableness apply o patent unreasonableness lives on in statutes not existing case law o circumstances of the case will determine deference  Baker: drain on welfare vs Suresh: danger to the security of Canada  risk is more serious in the case of Suresh  Discretion & Polycentrism - Polycentric tasks: We may visualize this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions

31 but will rather create a different complicated pattern of tensions. This would certainly occur, for example, if the doubled pull caused one or more of the weaker strands to snap .This is a polycentric situation because it is many centered each crossing of strands is a distinct centre for distributing tensions o Lon Fuller The Forms and Limits of Adjudication Bastarache J (Pushpanathan): [36] Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes .. That legal principles are vague, open-textured, or involve a multifactored balancing test may also militate in favour of a lower standard of review (Southam) . o policy = deference . These considerations are all specific articulations of the broad principles of polycentricity well known to academic commentators who suggest that it provides the best rationale for judicial deference to non-judicial agencies . [S]ome problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Discretion & Polycentrism - are all discretionary decisions polycentric? o discretion: wide range of options available to the decision maker o polycentrism: multiple considerations o in Baker  highly discretionary, however individualized (not polycentric) - are all polycentric decisions discretionary? o discretion dictated from the language of the statute (Dunsmuir) o not all polycentric decisions will be discretionary  statute may lay out certain factors that must be met in order to reach a decision precedent applies to administrative tribunals where you have a decision from the courts however precedent does not apply within a tribunal: tribunals are bound by courts of their jurisdiction; do not create precedent within the tribunal Substantive review - Questions of jurisdiction o CUPE [1979] o recall Dunsmuir (para 59) o Health Protection and Promotion Act o ATCO [2006] Substantive Review: Jurisdictional Errors - no deference: correctness - cannot exercise power unless such power has been delegated by statute - ultra vires: beyond the power - intra vires: within the power - jurisdictional versus non-jurisdictional questions of law - e.g. dog-catcher who has the power to capture any stray dog or cats or, in exceptional cases of danger to public safety, any creature : o dog-catcher captures a dog

32  was the dog stray?  power to interpret own statute o dog-catcher captures an elephant  was this an exceptional case of danger to public safety  Dunsmuir: liberal view of what a decision maker intended to decide about its own powers  power to interpret their own statute o dog-catcher takes into custody an errant child who was found playing with matches in the park  not a jurisdictional question: question of law  legislature intended the dog catcher to interpret the word creature o dog-catcher gives a parking ticket  no way legislature intended to give the dog catcher the authority to issue parking tickets do the facts require the decision maker to interpret its own statute o if yes question of law preliminary question and collateral issues framed in terms of jurisdiction which involves a jurisdictional question or excess of jurisdiction

Jurisdictional questions - direct route to correctness standard - if correct intra vires - if incorrect ultra vires - use caution before classifying something as jurisdictional (Dunsmuir) Standard of Review - correctness or reasonable Apply the Standard - if correctness o correct or incorrect - if reasonableness o reasonable or unreasonable CUPE [1979] 2 SCR 227 (NB) - history of courts evading full privative clauses - end of preliminary questions doctrine and collateral issue doctrine - greater respect for privative clauses - generally defer to interpretation of decision makers of ambiguous language - labour dispute during strike re: replacement workers and picketing of stores - secondary picketing - management was hiring replacement workers - NB Labour Relations Act: - 102(3) ... employers may strike and during the continuance of the strike (a) the employer shall not replace the striking employees or fill their position with any other employee, and (b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer. 102(3)a - with any other employee o what do you mean by employee?

33 o does it apply to only filling the position or replacing the striking employees as well management interpretation: any other employee applies to both labour board which favours the union interpretation: cannot replace the striking employees with anyone

Dickson J: - whether the legal question was preliminary or collateral is not determinative The courts, in my view, should be alert not to brand as jurisdictional, and therefore subject to broader curial (judicial) review, that which may be doubtfully so (para 10). o similar to reasoning in Dunsmuir - statutory language may have more than one meaning here it bristles with ambiguities (para 4) - courts should show deference to Board s interpretation of its parent statute: o strong privative clause (para 14) o role and special expertise of the Board (para 15) o purpose of the statutory scheme (para 24-7) = origins of the pragmatic and functional approach Recall Dunsmuir: Questions of Jurisdiction - majority: [59] Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE [1979] . (like preliminary questions doctrine) - majority: [59] . Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction . Nolan v Kerry 2009 SCC 39 - decision of a pension board - Rothstein J: be cautious over jurisdiction - courts should usually defer when a tribunal is interpreting its own standard [d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity." 54 Dunsmuir - Administrative tribunals are creatures of statute and questions that arise over a tribunal's authority that engage the interpretation of a tribunal's constating statute might in one sense be characterized as jurisdictional. However, the admonition of para. 59 of Dunsmuir is that courts should be cautious in doing so for fear of returning "to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years". - The inference to be drawn from paras. 54 and 59 of Dunsmuir is that courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness of standard when interpretation of that statute raises a broad question of the tribunal's authority. Health Protection and Promotion Act - main actor? o boards of health  currently 37 in Ontario; members appointed by relevant municipality and the province o also: Medical Officers of Health/ Health Units

34 each board of health appoints a medical officer of health to head its local health unit main adjudicative actor? o Health Services Appeal and Review Board  review exercises of power by medical officers of health o also: Divisional Court powers/ responsibilities of health boards: o respond to health hazards; counter the spread of communicable disease; promote public health o programming issues: set up systems to respond to health issues powers/ responsibilities of medical officers of health: o inspect premises; make orders re health hazards or communicable diseases how do we determine which questions fall within their jurisdiction and which fall without? 

5. Every board of health shall superintend, provide or ensure the provision of health programs and services in the following areas: 1. Community sanitation, to ensure the maintenance of sanitary conditions and the prevention or elimination of health hazards. 1.1 The provision of safe drinking water by small drinking-water systems. 2. Control of infectious diseases and reportable diseases, including provision of immunization services to children and adults. 3. Health promotion, health protection and disease and injury prevention, including the prevention and control of cardiovascular disease, cancer, AIDS and other diseases. . . 4. Family health, including, i. counselling services, ii. family planning services, iii. health services to infants, pregnant women in high risk health categories and the elderly, iv. preschool and school health services, including dental services, v. screening programs to reduce the morbidity and mortality of disease, vi. tobacco use prevention programs, and vii. nutrition services. 4.1 Collection and analysis of epidemiological data. 4.2 Such additional health programs and services as are prescribed by the regulations . s.13: power to make order re health hazard 13. (1) A medical officer of health or a public health inspector, in the circumstances mentioned in subsection (2), by a written order may require a person to take or to refrain from taking any action that is specified in the order in respect of a health hazard. (2) A medical officer of health or a public health inspector may make an order under this section where he or she is of the opinion, upon reasonable and probable grounds, (a) that a health hazard exists in the health unit served by him or her; and (b) that the requirements specified in the order are necessary in order to decrease the effect of or to eliminate the health hazard. . Interpretation issues: - is there a health hazard - reasonable and probable grounds - where he or she is of the opinion - are necessary

35 s. 22: power to make order re communicable disease 22. (1) A medical officer of health, in the circumstances mentioned in subsection (2), by a written order may require a person to take or to refrain from taking any action that is specified in the order in respect of a communicable disease. (2) A medical officer of health may make an order under this section where he or she is of the opinion, upon reasonable and probable grounds, (a) that a communicable disease exists or may exist or that there is an immediate risk of an outbreak of a communicable disease in the health unit served by the medical officer of health; (b) that the communicable disease presents a risk to the health of persons in the health unit served by the medical officer of health; and - health unit is a question of jurisdiction (geographic) (c) that the requirements specified in the order are necessary in order to decrease or eliminate the risk to health presented by the communicable disease. . HPPA: review provisions - right to advance notice and a hearing o s. 35: application to court for order to compulsory isolation of a person o s. 43: application to justice of the peace for warrant to access a private residence - right to notice and an appeal o s. 43: appeal to Health Services Appeal and Review Board o s. 46: appeal from this Board to Divisional Court on questions of law or fact or both Jurisdictional or non-Jurisdictional s. 1(1): ... health hazard means, (a) a condition of a premises, (b) a substance, thing, plant or animal other than man, or (c) a solid, liquid, gas or combination of any of them, that has or that is likely to have an adverse effect on the health of any person; s. 1(1): communicable disease means a disease specified as a communicable disease by regulation made by the Minister; - not as discretionary as health hazard determination ATCO [2006] 1 SCR 140 (Alb) - regulation by Alberta Energy and Utilities Board of ATCO, the monopoly supplier of natural gas to Calgary - approval by Board of ATCO s sale of lands and buildings, subject to condition that revenues be split between shareholders and consumers/ ratepayers - did the AEUB have the authority to attach this condition - statutory powers of Alberta Energy and Utilities Board: o Gas Utilities Act, s 26 (2): No owner of a gas utility... shall ... (d) without the approval of the Board, (i) sell, lease, mortgage or otherwise dispose of or encumber its property... o Alberta Energy and Utilities Board Act, s 15(3): Without restricting (1), the Board may do all or any of the following: (d) with respect to an order made by the Board... make any further order and impose any additional conditions that the Board considers necessary in the public interest. o appears to be a discretionary and polycentric decision Binnie J (3-judge dissent):

36 the Board believes it not to be in the public interest to encourage utility companies to mix together the two types of undertakings. In particular, the Board has adopted policies to discourage utilities from using their regulated businesses as a platform to engage in land speculation to increase their return on investment outside the regulatory framework. By awarding part of the profit to the utility the Board rewards utilities for diligence in divesting themselves of assets that are no longer productive or that could be more productively employed elsewhere. However, by crediting part of the profit on the sale of such property to the utility s rate base the Board seeks to dampen any incentive for utilities to skew decisions in their regulated business to favour such profit taking unduly . . Such a balance, in the Board s view, is necessary in the interest of the public which allows ATCO to operate its utility business as a monopoly. (para 88) Board has statutory authority to impose any conditions that the Board considers necessary in the public interest ; better able than a court to make this decision high degree of deference

Bastarache J (4-judge majority): - applies correctness standard by characterizing decision as jurisdictional rather than discretionary/ polycentric - strict (dubious?) approach to statutory interpretation - e.g. says the statutory language can lead to only one conclusion but also that The Board s seemingly broad powers to make any order and to impose any additional conditions has to be interpreted within the entire context of the statutes which are meant to balance the need to protect consumers as well as the property rights retained by owners (para 7) o statutory purpose used to trump  nature of the question  expertise - characterizes as case involving confiscation of property rights and infringement of economic freedom in a free market economy but ATCO is a monopoly that was always subject to regulation - but how is this not a polycentric question? - orders Board to approve sale and allocate all revenues to ATCO, thus substituting Court s view for the Board s in a complex field of economic regulation contrast with e.g. Southam compare reasons of Bastarache J in Pushpanathan (text p 794) . While judicial procedure is premised on a bipolar opposition of parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties. Where an administrative structure more closely resembles this model, courts will exercise restraint. Correctness on Jurisdictional Questions - of course, no administrative agency may act beyond the bounds of its powers as defined by the legislature - but (1) the legislature may want the agency itself, not the courts, to determine the boundaries of the agency s jurisdiction, and (2) courts may contort policy choices that they dislike into jurisdictional questions so as to justify correctness - ask: is this really a question beyond the intended scope of the agency s powers (including any statutory power to determine its own jurisdiction or make discretionary or policy decisions consistent with the broad purpose of the scheme)? Substantive review

37

Applying the Dunsmuir framework: (1) what standard of review? y Flora [2008] (Ont CA) (2) what outcome based on application of the standard? (to be cont. next class) y Cabral De Madeiros [2008] (FC) y Coffey [2008] (MBCA) Liver Transplants -Who should decide? Whether transplants are distributed according to: - medical need, - prospects for survival, - degree of contribution to quality of life, or - choice of the donor? Flora v. General Manager, OHIP [2008] (Ont CA) - Ontario doctors concluded that F was not a suitable candidate for a liver transplant - decision based on Milan criteria , which evaluate size of liver tumour(s) and degree of spread beyond liver - gives priority to recipients with higher chance of survival (due to shortage of cadaveric livers) - evaluation confirmed by medical experts in Ontario and in Germany - F traveled to the UK where private clinic performed a living transplant program serviced overseas clients ineligible for cadaveric livers in UK; cost: $450,000 - private clinic applied more relaxed version of Milan criteria - prior to UK procedure, Canadian medical expert concluded that Milan criteria not met for living transplant; his application for treatment was denied - animating rationale for Milan criteria: given the serious and significant risks to the donor only those patients with high survival prospects would be selected for the procedure (para 18) - OHIP decision to deny reimbursement was upheld by Health Services Appeal and Review Board on basis not an insurable service under Ontario Health Insurance Act - Board heard written and oral testimony from F s doctors: o high risk of cancer recurrence o if F had met Milan criteria, he would be put on Ontario wait list for cadaveric liver - conflicting evidence from UK doctors re: Milan criteria and likelihood of success - (statutory) appeal dismissed by Divisional Court: Board s decision was reasonable - based on relevant Regulatory test, Board rejected that the treatment was an insured service - did so on basis that procedure was not generally accepted in Ontario as appropriate for person with same medical circumstances - F argued that this was a question of law, to be answered correctly by Board o whether or not the procedure was generally accepted in Ontario as appropriate - Ont CA: Dunsmuir confirms that the factors continue to be relevant o no privative clause; broad right of appeal  less deference o question was not policy-based, but was a fact-laden and case-specific question of mixed fact and law  reasonableness o relative expertise of Board in assessing medical evidence; experience with Act - existing jurisprudence (Divisional Court) also supports reasonableness

38 Dunsmuir - statute which specifically provides for standard? - existing jurisprudence? - four factors o nature of the question o privative clause/right of appeal o expertise o statutory purpose Class Example: Appropriate Standard - reasonableness or correctness Bio Sewage Plant Authorization Act of Ontario statute - does not provide for standard existing jurisprudence - assume none Four factors privative clause - Decisions of the Commission are, in any event, final. s23 - weak privative clause o little deference right of appeal - may appeal from the Commission s decision to the Divisional Court on a question of law. Decisions of the Commission are, in any event, final. s23 - narrow statutory right of appeal question of law only o little or no deference on questions of law o deference on questions of fact and mixed law and fact nature of the question b) the conduct of the owner or operator of the plant affords reasonable grounds to believe that he or she will carry on business with due regard for the protection of the natural environment and human health; (c) the permit is judged to be in the public interest having regard to the needs and wishes of the residents of the municipality in which the plant is located did Jill carry on business with due regard for human health? Mixed Fact and Law - apply a standard in the statute to the facts provided Reasonableness Deference suburban development priorities of Ontario outweigh the commercial interests in this case - no reference to the statute

39

expertise - law student - two rural planners - The Minister shall designate one member of the Commission as its chair. The chair may direct that a hearing be held before a panel consisting of either one member or three members of the Commission, as he or she may designate. At least one member of the panel must have legal expertise or experience and the remaining members, if any, should have extensive experience in sewage treatment, rural planning, or environmental regulation s22 stat purpose promotion of a commercial market for bio-sewage products in Ontario and the assurance of responsible conduct by businesses allowed to operate within that market. Summary of Correctness usually, but not always, where there is a (distinct/ separable) question of law or jurisdiction (rather than a question of fact, mixed fact and law, or discretion or policy) court substitutes own view; emphasis on correct interpretation of statute, common law, or constitution e.g. Pushpanathan [1998] interpretation by Immigration and Refugee Bd. of treaty provision involving human rights

Summary of cases adopting deferential standard - CUPE [1979] patent unreasonableness: upholds Labour Board s interpretation of an ambiguous statutory provision - Southam [1997] reasonableness: upholds Competition Tribunal s characterization of whether daily and community newspapers were in the same market - Baker [1999] reasonableness: overturns denial of application on humanitarian & compassionate grounds - Suresh [2002] patent unreasonableness: concerning Ministers opinion that individual posed danger to security - Ryan [2003] reasonableness: upholds decision of Discipline Committee to disbar lawyer - Dr Q [2003] reasonableness: upholds Inquiry Committee s decision based on its findings of credibility - ATCO minority [2006] patent unreasonableness: upholds Board s discretionary decision on distribution of revenues from sale of assets by gas utility Cabral De Madeiros v. Canada (Min of Citizenship and Immigration) [2008] (FC) - decision by immigration officer that applicants could safely return to Portugal based on state protection from family violence - weight given to general documentation that was reviewed about conditions in portugal as opposed to specific documentation of similarly situated cases and the evidence of the victim support advisor - follows past decisions to adopt reasonableness: significant deference is owed in particular [to] decisions regarding the weight to be given to evidence presented (para 15) - application of standard - what does reasonableness mean in this context o context of 18.1(4)d of the Federal Court Act o factual determinations were perverse or capricious

40 upholds the decision: the Officer took into account all of the critical documentary evidence and preferred general country conditions documentation on state protection against family violence to more specific and case-oriented documentation (para 16) also: While I might have reached a different conclusion that is not relevant the Officer s analysis was thorough and his conclusion was open to him (para 17)

Coffey v. College of Licensed Practical Nurses of Manitoba [2008] (MBCA) - decision by disciplinary committee to reprimand nurse for professional misconduct - reprimand based on circulation of inaccurate information about College staff salaries outside the membership - adopts reasonableness standard after reviewing the four factors: o no privative clause; broad right of appeal o statute directs College to govern its members in the public interest o question of mixed fact and law: a heavily fact-laden question, with some legal aspects o panel is best positioned to know what conduct will bring the profession into disrepute application of standard - cites Ryan (and Dunsmuir): is there no line of analysis within the reasons that could reasonably lead the tribunal from the evidence to the conclusion at which it arrived ? (para 47) The reasons of the Panel demonstrated that it considered the evidence before it (para 48) and each of its essential findings can be linked to the evidence (para 53) That there might possibly be some evidence on one or more of these matters that might tend to point in a different direction is not relevant. It is clearly the role of the Panel, and not of this court, to weigh and evaluate all the evidence (para 53). Professional misconduct and conduct unbecoming are not defined in the Act. I do not think that it is necessary that they be defined, either in the Act or in its decision for the Panel to have been justified in reaching its conclusions. Substantive review - summary of the standard of review analysis - application of the standard: correctness - application of the standard: reasonableness Summary: standard of review analysis The analysis must be contextual. it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. Is there a relevant precedent? existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard . what is the nature of the question? - Is it a question of fact, discretion or policy? - Is it a question where the legal issues cannot be easily separated from the factual issues? = generally a standard of reasonableness ; deference will usually apply automatically - Is it a question of law? = many legal issues attract a standard of correctness

41 Is it a question regarding the constitutional division of powers or other constitutional issues? = correctness If it is a (distinctive/ separable) question of law: Is the tribunal interpreting its own statute or statutes closely connected to its function, with which it has particular familiarity? = deference will usually result Is the question at issue one of general law that is of central importance to the legal system as a whole and outside the adjudicator s specialized area of expertise? = correctness; Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Is it a (distinctive/ separable) jurisdictional question? i.e. Is it a true question of jurisdiction , understood in the narrow sense of whether or not the tribunal had the authority to make the inquiry , where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter ? = correctness Is there a privative clause and/ or a right of appeal? Is there a strong privative clause? = a strong indication of reasonableness, but not determinative (must preserve constitutional role of the superior courts ; ensure that administrative bodies do not exceed their jurisdiction ; and read [a privative clause] in its appropriate statutory context ) Is there a weak privative clause (e.g. exclusive jurisdiction clause or finality clause)? = some indication of deference Is there a right of appeal? (not mentioned by majority in Dunsmuir) = weighs against deference depending on the language of the appeal provision What is the purpose of the tribunal? as determined by interpretation of enabling legislation If it is a question of law, does it involve the interpretation of a statute that is closely connected to the tribunal s function? What is the tribunal s expertise? If it is a question of law, does it fall within the adjudicator s specialized expertise? Dunsmuir: Correctness [50] the standard of correctness must be maintained in respect of jurisdictional and some other questions of law . When applying the correctness standard, a reviewing court will not show deference to the decision maker s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer . Dunsmuir: Reasonableness [47] Reasonableness is a deferential standard animated by the principle that certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and -

42 intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Summary or Correctness - usually, but not always, where there is a (distinct/ separable) question of law or jurisdiction - court substitutes own view; emphasis on statutory interpretation little or no deference / exacting review (Dr Q [2003]); significant probing or testing (Southam [1997]) - Dr Q o infamous conduct by a doctor who entered into a sexual relationship with one of his patients o trial judge inappropriately applied a correctness standard to finding of credibility  credibility: factual issues which call for a reasonableness standard and deference o The reviewing judge's analysis of the corroborative evidence confirms that she assessed the Committee's findings of credibility from the perspective of correctness, rather than reasonableness. For example, when addressing the Committee's [page244] reliance upon the discrepancy between Dr. Q's letter to the College and the number of times he had actually had lunch with Ms. T, the reviewing judge argued that "one explanation for Dr. Q.'s less than forthright description of his lunch relationship with Ms. T. is that the letter was written without dealing with specific allegations pursuant to legal advice" (para. 13). Yet when the standard of review is reasonableness, the reviewing judge's role is not to posit alternate interpretations of the evidence; rather, it is to determine whether the Committee's interpretation is unreasonable. When considering the Committee's conclusion that Ms. T's ability to describe distinct bodily markings suggested an intimate relationship between Ms. T and Dr. Q, the reviewing judge noted that Ms. T had some experience as a surgical nurse and asserted that, "[i]n my view, her description is no more vivid than one might expect from someone who has experience with surgical scars if such a scar had been described to her as Dr. Q testified he had done" (para. 20). With respect, when applying a standard of reasonableness simpliciter, the reviewing judge's view of the evidence is beside the point; rather, the reviewing judge should have asked whether the Committee's conclusion on this point had some basis in the evidence o how a reviewing court reviews evidence - e.g. Pushpanathan [1998] (interpretation by Immigration and Refugee Board of treaty provision involving human rights); Mossop [1993] (interpretation by Human Rights Tribunal of family status as a prohibited ground of discrimination o contrary to the purposes of the UN o substituted its own interpretation o important human rights issues at stake Correctness on Jurisdictional Questions - no administrative agency may act beyond the bounds of its powers as defined by the legislature - but (1) the legislature may want the agency, and not the courts, to determine the boundaries of the agency s jurisdiction, and (2) courts may contort policy choices they dislike into jurisdictional questions merely to justify correctness (see CUPE [1979]; dissent by Abella J in Lvis [2007])

43 ask: is this really a question beyond the intended scope of the agency s powers (including any statutory power to determine its own jurisdiction or make discretionary decisions consistent with the purpose of the scheme)?

Correctness on Non-Legal Issues - court might (rarely) substitute own view on factual questions or on questions where the legal and factual issues cannot be readily separated - court might substitute own view on discretionary/ policy questions, arguably displacing the agency s regulatory role o eg., ATCO - look for questions of mixed law & fact that a court treats as a question of law in order to justify a correctness standard o eg (arguably) dissent in VIA Rail [2007] ( undue obstacle ) - highly questionable in the face of a strong privative clause on legal or policy issues within the mandate and expertise of the agency (eg ATCO [2006]) Summary of Cases Adopting Deferential Standard - CUPE [1979] patent unreasonableness: upholds Labour Board s interpretation of an ambiguous statutory provision - Southam [1997] reasonableness: upholds Competition Tribunal s characterization of whether daily and community newspapers were in the same market o courts may not reweigh factors - Baker [1999] reasonableness: overturns denial of application on humanitarian & compassionate grounds - Suresh [2002] patent unreasonableness: concerning Ministers opinion that individual posed danger to security - Ryan [2003] reasonableness: upholds decision of Discipline Committee to disbar lawyer - Dr Q [2003] reasonableness: upholds Inquiry Committee s decision based on its findings of credibility - ATCO minority [2006] patent unreasonableness: upholds Board s discretionary decision on distribution of revenues from sale of assets by gas utility Dunsmuir: Reasonableness [48] . What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view . [48] . Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law . We agree with David Dyzenhaus where he states that the concept of deference as respect requires of the courts not submission but a respectful attention to the reasons offered or which could be offered in support of a decision . [49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers . In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

44 Canada (Cit. and Immig.) v. Khosa, 2009 SCC 12: reasonableness [59] Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, at para. 47) . - [59] . There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. o justification, transparency, intelligibility: reasons given by a decision maker or could be given Summary of Reasonableness a range of possible, acceptable outcomes - reasonableness takes its colour from context o (instructor s view: i.e. it is a spectrum of practically infinite variations such that there s really no point trying to figure out where on the spectrum you are) - there may be more than one reasonable interpretation of a statute or decision in a case - do not re-weigh the evidence or substitute own view - ensure that the law and facts were appropriately considered by the decision-maker - focus on whether the reasons of the decision-maker, and the information/ evidence, support the decision justification, transparency and intelligibility Practice Fact Scenario - The pig farm and the wedding hall o dispute between Harrison Ltd and the Municipality of Clean Rivers o decision of the Normal Farm Practices Protection Board to excuse Harrison Ltd. from municipal by-law o appeal from Board s decision by Municipality, arguing that Board had no jurisdiction to overturn by-law or, in the alternative, that Board erred in its interpretation of the Act What is the appropriate standard? - no standard stated in the statute or in case law - jurisdiction: the statute provides the board with the power to decide what is a normal farm practice s 1 and s 6(1) - look to the four factors o nature of the question  question of mix law and fact y applying the statute to a set of facts o privative/right of appeal  strong right of appeal o expertise  board is interpreting its own statute o statutory purpose  Min of Agr directives, guidelines or policy s 9 - correctness standard: general importance to the legal system as a whole and outside the specialized expertise

45 o not likely that these two requirements are met reasonableness based on the four factors

Apply the Standard - unreasonable: board is directed under the statute to consider whether the bylaw reflects a provincial interest o not considered o did not consider the MDS guidelines o required to explain that the doubling factor should not interfere with the conclusion that this was a normal farm factor o should explain the MDS guidelines factors - reasonable: Scenario Court of Appeal decision - Hill and Hill Farms Ltd. v. Bluewater (Municipality) (2006), 82 O.R. (3d) 505 (CA). http://www.ontariocourts.on.ca/decisions/2006/september/C43637.pdf - standard of review = reasonableness o broad statutory right of appeal called for correctness o nature of the question, expertise, and broad powers (to appoint experts, decide informally, adopt flexible remedies) called for deference Board s decision was unreasonable o s. 9 of Act requires Board s decisions to be consistent with Ministry guidelines o Board paid no heed to this and thus failed to consider a factor is was required to weigh Rodrigues v. Ontario (WSIA Tribunal) (Ont CA) - appeal by WSIAT from Divisional Court decision - majority of Division Court had overturned WSIAT conclusion that contributions to R s benefits plan were not pre-accident earnings under the Workplace Safety and Insurance Act - WSIB Operational Policy did not include the relevant benefits contributions in a comprehensive list of contributions that qualify as earnings - WSIAT was required by the Act to apply WSIB Policy - Borins J.A. (majority, CA): o emphasizes strong privative clause; expertise; binding nature of the Policy  uses the four factors in the application of the standard  reasonableness taking its colour from context y context: four factors o decided by a very experienced of WSIAT Vice-Chair o decoded in a careful and comprehensive manner o detailed reasons included a review of the Act and Policy plus five further rationales for WSIAT s interpretation (see para. 14) o the reasons were not clearly irrational and the evidence of legislative history was irrelevant  text of the statute clearly states that the policy is binding; policy is comprehensive y no ambiguity, therefore not necessary to consider legislative history - Gillesse J.A. (dissent, CA): o background shows that the benefits contributions were all part of the same wage package , paid on an hourly basis o evidence of the legislative history indicated that it had been a mistake to exclude the relevant contributions from the Act s definition of earnings

46 WSIAT counsel had submitted that the contributions should be treated as earning after the first year of employment o failure to consider this relevant evidence, put before the Tribunal, made its interpretation unreasonable (see para 57) text of the statute clearly states that the policy is binding; policy is comprehensive - no ambiguity o statutory interpretation - text - context - object and purpose - legislative history - other instruments - textual vs teleological approach o emphasis on text vs object/purpose Dunsmuir: shift to a single deferential standard - majority: [44] Though we are of the view that the three-standard model is too difficult to apply to justify its retention, now, several years after Southam, we believe that it would be a step backwards to simply remove the reasonableness simpliciter standard and revert to pre-Southam law. As we see it, the problems that Southam attempted to remedy with the introduction of the intermediate standard are best addressed not by three standards of review, but by two standards, defined appropriately. Past Criticisms - criticisms by Lebel J in Toronto v CUPE [2003] 3 SCR 77: o why apply all factors of the pragmatic and functional approach where one or more factors clearly indicates a correctness standard? o how distinguish PU from correctness?  magnitude of the defect or obviousness of the defect? o how distinguish PU from reasonableness?  both recognize prospect of statutory ambiguity  can there be degrees of irrationality or degrees of obviousness? While a defect may be readily apparent because it is severe, a severe defect will not necessarily be readily apparent; by the same token, a flaw in a decision may be immediately evident, or obvious, but relatively inconsequential in nature (para 123) calls for a single deferential standard sets the stage for Dunsmuir s reform re: standard of review analysis and move from two deferential standards to one (reasonableness) Biosewage Example Reasonable or Unreasonable? Summary of Reasonableness a range of possible, acceptable outcomes - reasonableness takes its colour from context o (instructor s view: i.e. it is a spectrum of practically infinite variations such that there s really no point trying to figure out where on the spectrum you are) - there may be more than one reasonable interpretation of a statute or decision in a case

47 do not re-weigh the evidence or substitute own view ensure that the law and facts were appropriately considered by the decision-maker focus on whether the reasons of the decision-maker, and the information/ evidence, support the decision justification, transparency and intelligibility

Application - reasonable - unreasonable Disaggregation - question of jurisdiction, constitution, question of law which attracts a correctness standard - Pushpanathan : disaggregation of a question of law structured in the Dunsmuir framework Optometrist Example What is the standard? - precedent/statute: none - no privative clause - expertise: interpreting their own statute - purpose: regulating the profession o cite Ryan - nature of the question o mixed fact and law:  decision to order Dr J to apply for an initial license and attach conditions  interpret the statute and look at the particular facts  apply the law to the facts o reasonableness - authority: question of jurisdiction o Dunsmuir; CUPE caution in classifying a question as jurisdictional o 15(7) grants the authority - reasonableness standard Application of the standard? - unreasonable o ethics course  not required though for those obtaining an initial license  do not even offer one o should have turned their mind to other factors listed in s 18 Jurisdiction and constitutional challenges - whether administrative bodies have the authority to decide constitutional questions o what does the legislature intend in terms of giving a tribunal to interpret the Charter or other related instruments - can administrative decision-makers declare statutory provisions inapplicable on constitutional or human rights grounds? o Cooper [1996] o Martin [2003] o Tranchemontagne [2006]

48 A question for legislatures (and courts) - should an agency be able to refuse to apply a provision in its statute on Charter or human rights grounds? o would allow individuals to make all available arguments in the first instance o litigants may not realistically be able to go to court o but, tribunal may lack the expertise to resolve (especially, to dismiss) Charter/ HR code issues o if more time is required to resolve such cases, is access to the tribunal reduced for everyone else? Cooper [1996] 3 SCR 854 (Can) (additional reading) - cautious approach to administrative boards and tribunals deciding Charter issues - CHRC and tribunal lack authority to decide a Charter challenge - challenge of mandatory retirement age for pilots - CHRC denied the complaint - did the commission have the authority to rule on the Charter aspect of the decision - two-part test re: an administrative tribunal s authority to determine constitutional challenges: o does the statute give the tribunal, expressly or implicitly, the authority to decide questions of law (assumed to include Charter challenges)? o if so, does the statute remove, expressly or implicitly, the authority to decide constitutional challenges? - La Forest J (majority): o Canadian Human Rights Commission (and by extension Canadian Human Rights Tribunal) lacks the authority to determine the constitutionality of its enabling statute o Commission is not an adjudicative body; practical considerations weigh against implying such authority  limited expertise of the commission  commission role is to screen out human rights complaints  inefficiencies of these issues being dealt with by the commission - Lamer CJ (concurring): o to preserve the supremacy of the legislature (and courts) over the executive, legislatures cannot delegate such authority to administrative bodies o domain of the courts, courts are independent o parliamentary supremacy and ensuring that the executive does not erode that supremacy by appointing administrative actors who may decide upon constitutional issues o Charter did not exist at the time the Canadian Human Rights Act was written - McLachlin J (dissent): statutory powers & duties of the HR Commission, and nature of the scheme, reveal an implicit legislative intent to delegate such authority The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Many more citizens have their rights determined by these tribunals than by the courts. Martin [2003] 2 SCR 504 (NS) - claim for compensation from two individuals who suffer from chronic pain syndrome - in the Act, excludes compensation for chronic pain syndrome - tribunal upheld a Charter challenge: discrimination on the basis of disability s 15 - does the NS Workers Compensation Appeals Tribunal have jurisdiction to hear a Charter challenge?

49 here, the Tribunal upheld a Charter challenge to a provision of the Workers Compensation Act which denied benefits where the worker s disability arose from chronic pain syndrome Gonthier J (unanimous judgment): o the statute expressly gives the Tribunal the authority to decide questions of law relating to the relevant provision; therefore, Tribunal is presumed to have the authority to apply the Charter  may determine all questions of fact and law  right of appeal on questions of law o this authority allows a tribunal to decide that a provision is inapplicable, but not to declare the statute invalid o three reasons  constitution is the supreme law of the land y determining questions of law includes supreme law  practical benefit for having the admin decision maker decide these questions first y field experience, relevant expertise in the specialized area y may assist in determining constitutional questions; helps the courts understand the context in which the constitutional challenge was brought  subject to review on a correctness standard, no deference  limited remedy; decision has no binding force Gonthier J: here, the statute was explicit, but to determine whether there is an implied authority to decide questions of law look to: o statutory mandate of tribunal and whether deciding questions of law is necessary to fulfill mandate effectively  mandate would be impeded otherwise o interaction of tribunal with other aspects of scheme o whether tribunal is adjudicative o practical considerations, including capacity to consider questions of law Gonthier J. cont.: o nothing in the Act rebuts the presumption re: authority to hear Charter challenges, arising from the Tribunal s authority to decide questions of law o courts should construe narrow implied presumption to remove authority to decide constitutional challenges o implicitly should be interpreted broadly in the first step of the Cooper test and narrowly in the second part

Tranchemontagne [2006] 1 SCR 513 (Ont) - Ontario Human Rights Act o quasi-constitutional o whether the authority has been rebutted based on express or implicit language in the statute? - challenge (as discriminatory) to statutory provision that denied disability benefits to those whose disability was alcoholism - does the Ontario Social Benefits Tribunal have the authority to apply the Ontario Human Rights Act? - SCC agreed that the Social Benefits Tribunal had the statutory authority to decide questions of law, but split on whether legislature had removed authority to apply Human Rights Act - Disability Support Program Act, s 67(2): 67(2) The Tribunal shall not inquire into or make a decision concerning,

50 (a) the constitutional validity of a provision of an Act or a regulation; or (b) the legislative authority for a regulation made under the Act. - did the legislature intend to extend to quasi-constitutional - Bastarache J (4-judge majority): this provision does not remove the SBT s authority to apply the HR Act so as to find a statutory provision inapplicable - Abella J (3-judge dissent): o s 67(2) creates a category of questions of law that the legislature has explicitly removed from the SBT s jurisdiction: any legal question the answer to which might result in the SBT finding a provision of its own legislation inoperative o expresses concerns about the institutional capacity of the SBT to resolve human rights challenges, and about possible encroachment on the human rights system 1. Initial claim before tribunal: a. claim rejected Will individual go to court?

b. claim accepted

Will AG go to court?

2. Initial claim before court:

a. claim rejected

Revert to tribunal for remainder of decision.

b. claim accepted

Will AG appeal? Otherwise, revert to tribunal .

Procedural fairness intro/ legal sources - Charter - especially s. 7 - statutory o home statute or other statute o Statutory Powers Procedure Act, R.S.O. 1990, c. S-22 - common law: o Nicholson [1979] (SCC) o Homex Realty [1980] (SCC) Procedural Fairness Intro - you receive this letter from the Law School: o The School has reason to believe that you have acted improperly and against the School s interest. A decision has been taken after careful consideration to expel you from the School. The decision is not subject to any appeal or other reconsideration. We wish you the very best in all your future endeavours. - why would this be unfair? o traditional notice and reply not present o no notice of the law school s concerns o no information outlining the concerns o no opportunity to reply to the concerns

51 o o o no reasons for the decision no opportunity to appeal possible bias  against the school s interest

common law duty to act fairly: - audi alterem partem o the other side must be heard o right to notice and to reply - nemo iudex sua causa o no one shall be judge in his or her own case o independence/ rule against bias - different levels of fairness depending on the context: criminal vs administrative o oral hearing, internal appeal o procedural fairness entitlements depending on the context what is the legal source of the duty? - Charter, statute, common law threshold question: does the duty arise? - whether the source is applicable content question: what does the duty require in a particular context? - what level of fairness is required - 5 factors from Baker case studies in procedural fairness: dismissal of public officers, public inquiries, closed proceedings independence and impartiality Main sources of Procedural Rules - in general order of precedence: o Charter of Rights and Freedoms (esp. s. 7 and 8-14) o Canadian Bill of Rights (esp. s. 1(a) and 2(e)) decision-makers under federal statutes only o statutes  Statutory Powers Procedure Act (Ontario)  parent statute of the decision-maker or other statutes o common law o rules/ procedures of the decision-maker Charter of Rights and Freedoms - 1. The [Charter] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. - 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. s. 7 analysis involves four steps: - is the life, liberty, or security of the person (or a combination of these) engaged? not our focus - what are the principles of fundamental justice in the relevant context? our focus (in admin law contexts) o included procedural fairness (natural justice) - has there been a deprivation that failed to accord with these principles? our focus (in admin law contexts)

52 is the deprivation justified under s. 1? not our focus

Canadian Bill of Rights (1960) 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination the following human rights and fundamental freedoms, namely: o (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law. 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed and applied so as to . o (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.  could only argue procedural fairness if your rights and obligations are in stake  not entitled to procedural fairness if dealing with a privilege Statutory Powers Procedure Act R.S.O. 1990, c. S.22 - general statute on requirements for tribunal hearings (oral, written, or electronic) - enacted in 1971, following the Ontario Royal Commission Inquiry Into Civil Rights (the McCruer Commission) - similar statutes in Alberta (1966), Quebec (1996), and B.C. (2004) - roots in the U.S. Administrative Procedure Act 1946 - SPPA applies to tribunals (s. 3(1)): o that exercise a statutory power of decision  a power or right, conferred by or under a statute, to make a decision deciding or prescribing: (a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or (b) the eligibility of any person or party to receive, or to the continuation of, a benefit or license, whether the person is legally entitled thereto or not. (s. 1) y include rights and privileges o and that are required by statute or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision . (s. 3)  affects adjudicative tribunals exemptions from SPPA (s. 3(2)): - the legislature and its committees o separation of powers - courts that are subject to the Rules of Civil Procedure - arbitrators (Arbitrations Act; Labour Relations Act) o consensual arrangement - coroners inquests - commissions of inquiry (Public Inquiries Act) - persons exercising an investigatory function that does not lead to a final binding decision o non-dispositive decisions - tribunals empowered to make regulations, rules, or by-laws in so far as that power is concerned key provisions: s. 4: panels/ role of Chair

53

Panels, certain matters 4.2(1)A procedural or interlocutory matter in a proceeding may be heard and determined by a panel consisting of one or more members of the tribunal, as assigned by the chair of the tribunal s. 5: definition of a party Parties 5.The parties to a proceeding shall be the persons specified as parties by or under the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding s. 6: reasonable notice of hearings Notice of hearing 6.(1)The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal s. 8: circumstances where specific level of notice required Where character, etc., of a party is in issue 8.Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto key provisions: s. 9(1): requirement for open proceedings (may be varied for reasons of public security or to protect intimate private or personal information) Hearings to be public, exceptions 9.(1)An oral hearing shall be open to the public except where the tribunal is of the opinion that, (a) matters involving public security may be disclosed; or (b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public s. 10: right to counsel and to call and cross-examine witnesses Right to representation 10. A party to a proceeding may be represented by a representative Examination of witnesses 10.1A party to a proceeding may, at an oral or electronic hearing, (a) call and examine witnesses and present evidence and submissions; and (b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding s. 11: witness right to counsel

54

Rights of witnesses to representation 11. (1) A witness at an oral or electronic hearing is entitled to be advised by a representative as to his or her rights, but such representative may take no other part in the hearing without leave of the tribunal. Idem (2) Where an oral hearing is closed to the public, the witness s representative is not entitled to be present except when that witness is giving evidence s. 12: power to issue summonses Summonses 12. (1) A tribunal may require any person, including a party, by summons, (a) to give evidence on oath or affirmation at an oral or electronic hearing; and (b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal, relevant to the subject-matter of the proceeding and admissible at a hearing

s. 14: immunity for witnesses compelled to testify (use immunity in future civil or criminal proceedings other than prosecution for perjury) Protection for witnesses 14.(1)A witness at an oral or electronic hearing shall be deemed to have objected to answer any question asked him or her upon the ground that the answer may tend to criminate him or her or may tend to establish his or her liability to civil proceedings at the instance of the Crown, or of any person, and no answer given by a witness at a hearing shall be used or be receivable in evidence against the witness in any trial or other proceeding against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence. s. 17(1): obligation to give written reasons for final decision, if requested by a party Decision 17.(1)A tribunal shall give its final decision and order, if any, in any proceeding in writing and shall give reasons in writing therefor if requested by a party s. 20: obligation to keep record of proceeding Record of proceeding 20.A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include, (a) any application, complaint, reference or other document, if any, by which the proceeding was commenced; (b) the notice of any hearing; (c) any interlocutory orders made by the tribunal; (d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding; (e) the transcript, if any, of the oral evidence given at the hearing; and

55 (f) the decision of the tribunal and the reasons therefor, where reasons have been given. tribunal can only base its decision on what is before it since a party cannot challenge that material s. 25.0.1 and 25.1: power to make orders/ rules governing the tribunal s practice and procedure liberal construction of the rules (s. 2) Control of process 25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules under section 25.1. Rules 25.1 (1) A tribunal may make rules governing the practice and procedure before it Resolving conflicts between rules - statute > common law (but common law may supply the omission of the legislature ) o if silent or ambiguous - statute or common law > subordinate rules (i.e. regulations, bylaws, policies) - statute or common law or subordinate rules passed under a statute > the tribunal s own rules (e.g. SPPA, s. 25.1(3) and (6)) - SPPA > other statutes (unless the other statute provides expressly to the contrary see SPPA, s. 32) Prior to Nicholoson - distinction between judicial and administrative proceedings - if administrative, no procedural fairness - similar to rights v privilege distinction Nicholson [1979] 1 SCR 311 (Ont) common law - police board had the power to dismiss an officer before the completion of 18 months service (after which a statutory process for dismissal took effect) - dismissed after 15 months of service without any process or reason - Martland J (dissenting): o officer s status was probationary o The only interest involved was that of the Board itself  privilege, not a right o the decision was administrative, entailing no legal duty to explain the decision or given the officer an opportunity to be heard - Laskin CJC: o police board was not required to act judicially, but had duty to act fairly (not arbitrarily) in exercising the power  even though the statute did not require any process o emphasizes the seriousness of the consequences for the individual  one of the five factors in Baker  as opposed to binary distinctions between administrative v judicial; rights v privileges y very difficult to parse out y borderline cases might result in an injustice

56  move towards a factor based approach individual entitled to notice and an opportunity to make submissions, whether orally or in writing o The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination (instrumental value). Once it had the appellant s response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always presuming good faith. Such a course provides fairness to the appellant, and it is fair as well to the Board s right, as a public authority Status in office deserves this minimal protection, however brief the period for which the office is held. (EMP edited version, p 6) justification for procedural fairness o enhances good decision making, increases accuracy o intrinsic value  more willing to accept decision if they believe the decision was made fairly duty of fairness not observed level of fairness o opportunity to reply should have been given remedy o same decision maker, same result o

Homex Realty [1980] 2 SCR 1011 (Ont) (additional reading) - dispute between Homex and the Village of Wyoming over who should pay for the installation of municipal services on a Homex subdivision development - Village Council eventually passed a by-law, without advance notice to Homex, that withdrew the land s designation as a subdivision - the Planning Act required a municipal council to give notice after passage of a by-law but was silent on whether notice was required before passage Estey J: The courts long ago developed the general proposition that wherever a statute authorizes the interference with property or other rights and is silent as to whether or not the agency in question is required to give notice prior to the intervention in such rights, the courts will supply the omission of the legislature and require the agency in question to afford the subject an opportunity of being heard before it proceeds: Cooper v. Wandsworth Board of Works [1863] . (EMP Edited Case p 3). Estey J: circumstances of the Council s decision were sufficiently individualized to attract a duty of fairness the by-law had some characteristics of a community interest by-law but it also represented the purported culmination of an inter partes dispute conducted on adversarial lines between Homex and the Council . I draw no inference from [the Municipal Act] provisions that no prior notice may be required where the action in question is essentially inter partes in nature . (EMP Edited Case p 4) Estey J: Homex was denied its right to be heard because it was not given an opportunity to assess its final position after becoming fully aware of the Council s final position however, the Court exercised its residual discretion to deny any remedy to Homex suggests bad faith by Homex in its efforts to avoid costs of municipal services that were agreed to by the original owner of the subdivision Council s only motive was to protect its residents from the costs undertaken by original owner of the subdivision

57

Procedural fairness - common law threshold cont. o Cardinal [1985] (SCC) o Inuit Tapirisat [1980] (SCC) - legitimate expectations as an aspect of procedural fairness o Mount Sinai Hospital [2001] (SCC) o additional readings: Reference re CAP [1991] (SCC); Vietnamese Assn of Toronto [2007] (Ont Div Ct) Threshold Question - since 1979, SCC has moved away from the distinction between judicial functions (duty of fairness applies) and administrative functions (duty of fairness does not apply) - rather, the duty is presumed to apply where the decision affects an individual s rights, privileges or interests (broadly defined) - in many cases, the duty is found to apply at the threshold stage, but is then given a limited or flexible procedural content (e.g. Nicholson, where the Court left it for the police commissioners to decide whether to hold a hearing) Cardinal [1985] 2 SCR 643 (BC) - prison director s decision to disassociate (segregate) inmates for the maintenance of good order and discipline - decision maintained despite recommendation by Segregation Review Board that the prisoners be released into general prisoner population - director did not give reasons or an opportunity for the prisoners to be heard - threshold question: o Le Dain J:  there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual (para 14) y must not be a legislative decision y the rights privileges interests of an individual  There can be no doubt.. that the Director was under a duty of procedural fairness in exercising the authority with respect to administrative disassociation (para 14) - content question: o The question [of] what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context must be approached [with caution] in the context of prison administration . (para 15)  context will determine content o there was no duty to give reasons, or an opportunity to be heard, when the original segregation decision was made o but such a duty arose when the Segregation Review Board s recommendation for release was rejected o what if this more elaborate process would lead simply to the same (substantive) decision being taken? - Le Dain J:

58 The denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice.... It is not for the court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. (para 23) duty of procedural fairness entailed o to give reasons for rejecting the review board decision and to allow the prisoners to respond o

Threshold Question - emphasis now is on exceptional categories where the duty will not apply: (1) where the decision is non-dispositive (2) where the decision is legislative/ general in nature (3) in case of emergency (4) where the duty is removed or restricted by statute - note: as one expands the meaning of rights, privileges or interests , the more difficult it becomes to distinguish general policy decisions (where the duty does not apply) from individualized decisions (where the duty applies) Non-Dispositive Decisions - procedural fairness applies where a dispositive or final decision is made - procedural fairness does not apply to preliminary stages that offer suggestive advice/ recommendations to the decision-maker o e.g. a Minister may receive input from civil servants; a municipal council may consider reports from outside experts; an adjudicative tribunal may hear evidence from an independent investigator - as always, there are exceptions o when the ultimate decision maker will defer to the preliminary decision maker: de facto decisions o investigative process which attracts publicity public inquiries - when might a merely advisory/ recommendatory decision nevertheless attract a duty of fairness? o where the statute says so o where the decision has significant consequences for an individual: o e.g. arising from publicity impact of a public inquiry s hearings/ findings for reputations of individuals o e.g. arising from the decision-making structure role of a Human Rights Commission investigation in deciding whether a Tribunal will be established o original decision is non-dispositive but the ultimate decision maker will just defer/rubber stamp the findings of the original decision maker (Re Abel); where recommendations are always followed  procedural fairness applies to the Advisory Review Board (Re Abel) Legislative or General Decisions - procedural fairness does not apply to decisions of a legislative or general nature o Cardinal [1985] (Le Dain J):  there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of

59 a legislative nature and which affects the rights, privileges or interests of an individual (para 14) the exception may extend beyond legislatures per se to general policy-makers (e.g. Cabinet, Ministers) o Martineau [1980] 1 SCR 602 (Can) (Dickson J):  A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.  any decision maker making a ministerial decision on broad grounds of public policy

Inuit Tapirisat [1980] 2 SCR 735 (Can) legislative or policy exception - decision by federal Cabinet not to overrule a decision by the Canadian Radio-TV and Telecomm Commission - CRTC had allowed Bell Canada to raise telephone rates without attaching a proposed condition that Bell improve service in northern communities - National Transportation Act, s 64(1) then authorized the Governor-in-Council (i.e. Cabinet): o in his discretion, either upon petition of any party or of his own motion to overrule a CRTC order or decision whether such order or decision is made inter partes or otherwise and whether such regulation is general or limited in its scope and application - Estey J (unanimous): o cabinet is a delegate of parliament and in effect legislative and thus subject to the legislative exception o cabinet does not make individualized decisions o is the decision of a general policy nature o when not parliament, is the minister/cabinet making a general policy decision o Cabinet owed no duty of procedural fairness o Cabinet could decide of its own motion , indicating no need for it to involve others in the process  statute overrules need for procedural fairness o impracticality today of imposing a notice and hearing requirement on Cabinet (in spite of past practice under the Railway Act)  take away from time and resources o Cabinet retains discretion on whether/ how it hears submissions from the public o IT argues that the content of the procedural fairness should be  should receive copies of the record before CRTC  right of reply to the submission given to the civil servants o Cabinet privilege  civil servant submissions to cabinet are protected o Where... the executive branch has been assigned a function performable in the past by the Legislature itself and where the res or subject-matter is not an individual concern or a right unique to the petitioner or appellant, different considerations may be thought to arise. The fact that the function has been assigned as here to a tier of agencies (the CRTC in the first instance and the Governor in Council in the second) does not, in my view, alter the political science pathology of the case.  cabinet is not subject procedural fairness unless the subject matter is an individual concern

60 Class Example Whether common law procedural fairness requirement will apply to the decision - is the decision legislative in nature - does the decision affect the rights, interests and privileges of an individual - do any of the exceptions apply o where the decision is non-dispositive o where the decision is legislative/ general in nature o in case of emergency o where the duty is removed or restricted by statute - decision affects Jill s interest o livelihood, reputation - do any of the exceptions apply to the commission/minister o non-dispositive? o legislative/general in nature o emergency? o duty not removed by statute - would not apply to the inspector since his decisions were non-dispositive Whether the SPPA will apply o that exercise a statutory power of decision  a power or right, conferred by or under a statute, to make a decision deciding or prescribing: (a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or (b) the eligibility of any person or party to receive, or to the continuation of, a benefit or license, whether the person is legally entitled thereto or not. (s. 1) y include rights and privileges o and that are required by statute or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision . (s. 3)  affects adjudicative tribunals - yes for commission; no for minister o continuation of a benefit or license 3(1)b and opportunity for a hearing met  clearly applies to the commission  exceptions do not apply to the commission  SPPA applies to Ontario statute and the Bio Sewage statute is an Ontario statute o however the SPPA does not apply to the Minister s decision  subject to the exception 3(2)  does not hold a hearing Legitimate Expectations - equivalent to the civil law doctrine of estoppel - where an official makes a commitment/promise and then person discovers that the promise is not kept/terms of the commitment have changed - might have the effect of crippling government flexibility in policy vs fairness to individual to whom a promise/commitment has been made - situations where a person relies on official practices or representations that later change, to the detriment of the person o common in licensing context - fairness to individual v. governmental flexibility to revisit decisions in the public interest

61 in such circumstances, the doctrine of legitimate expectations may give rise to a higher entitlement to procedural fairness than would otherwise be the case, but not to substantive rights process, not outcome, can be varied based on this principle o outcome can only be varied through substantive review analysis

Mount Sinai Hospital [2001] 2 SCR 281(Que) - hospital applying for licensing authorization to operate o moving from St Agathe to Montreal - long term care facility - expanded services to short term and emergency services - hospital wanted licensing authorization modified to reflect its expanded services - government minister approved ; subsequent minister denied the modification after the relocation - basis for denying modification: discretion to deny modification if not in the public interest o highly discretionary o difficult to challenge on substantive review o minister: modification requires additional services that involve additional funding that the government is unable to provide budgetary consideration - hospital argues legitimate expectation o argues that it should also affect outcome not just process - commitment by Minister to revise and renew hospital licence if the hospital relocated to Montreal - hospital fund-raised and relocated, but the licence was denied by a new Minister after a change of government majority - not a case where the minister was modifying a license, therefore statute in question does not apply - new license being issue, different statutory provisions applies - when the minister was discussing with the hospital its relocation, the minister actually exercised his discretion to grant the license - I think an activity can be authorized without an implied or acquired permit per se. In other words, there may be permission in the sense of what is authorized but not in the sense of a permit as an object. In any event, I would prefer here to say that the activities were authorized (i.e., permitted) but that the permit itself did not yet exist. The Center was therefore acting under its long-term care permit with the government's acquiescence with respect to any issue related to the legality or illegality of that activity. It was not acting under an acquired or implied modified permit. It brought the request for modification at the time the parties agreed to, once the move to Montreal was made. It did this because it did not yet have that permit. While that request may well have been a request for something the Center saw itself as entitled to, it was not a purely empty or formal request for that which it already possessed. - this discretion was exercised when the Minister promised the Center that it would receive the modified permit, encouraged the move to Montreal, endorsed the financing campaign focussed on the role of the Center as a long-term and short-term care hospital, and continued to fund the short-term care services despite the mismatch between those services and the Center's permit Bastarache J (majority): - treats decisions of the Ministers as single decision and orders that the hospital is entitled to licence based on the original commitment

62 no need to apply doctrines of legitimate expectations or public law estoppel

Binnie J (concurring): - patently unreasonable decision to deny the license - deals with the decision as substantive review analysis, however comments on legitimate expectations - the new minister made a patently unreasonable decision to deny the licence - affirms that the doctrine of legitimate expectations does not create substantive rights - rather, existence of a legitimate expectation makes it more likely that procedural fairness, or a higher level of procedural fairness, will be required 1. no procedural protection is available to individuals for a purely ministerial decision, on broad grounds of public policy a. only requirement to consult 2. public bodies exercising legislative functions may not be amenable to judicial supervision 3. the line between substantive and procedural may be difficult to draw in some cases, but: An undue focus on formal classification and categorization of powers at the expense of broad principles flexibly applied may do a disservice here. The inquiry is better framed in terms of the underlying principle mentioned earlier, namely that broad public policy is pre-eminently for the Minister to determine, not the courts. (para 35) distinction between public law estoppel vs legitimate expectation - does the doctrine create substantive rights o estoppel: yes o LE: no - knowledge of promise o estoppel: required o LE: not required Public Law Estoppel - doctrine of estoppel may be available against a public authority in narrow circumstances - requirements of estoppel go beyond those of legitimate expectations and are more difficult to establish - doctrine of estoppel must be adapted from private law context in order to accommodate the need for legislative supremacy and regulatory flexibility - knowledge of promise is required for public law estoppel unlike LE - PROMISE WAS MADE, BROKEN, DAMAGE SUFFERED BUT SUBJECT TO LEGISLATIVE INTENT PRECLUDING PUBLIC LAW ESTOPPEL o broad discretionary power allows the minister to override past promises Binnie J (para 47-48): Here the Minister is mandated in broad terms to act in the public interest, and if the public interest as he defines it is opposed to the award of the modified permit, then I do not think a court should estop the Minister from doing what he considers to be his duty. What is at issue is not so much the Minister s ability to change policies but the fate of individuals caught in the transition between successive and inconsistent ministerial decisions on the same subject. As a matter of statutory interpretation, it seems clear that the legislature intended the Minister, not the courts, to determine the appropriate transitional arrangements .

63

Procedural Fairness - What is the Source? - Is the threshold satisfied for the source? - what is the content of procedural fairness o general level of fairness o specific content Content of procedural fairness - relevant factors to determine the content of the duty o Baker [1999] (SCC) - e.g. right to notice/ disclosure based on a municipal by-law o Pleasures Gentlemen s Club [2008] (Ont CA) Content of Procedural Fairness - where the duty of fairness applies, the next question is what the duty requires in a particular context - this content of the duty will vary widely - one arrives at the general level of content by assessing and applying the five factors in Baker - e.g. fairness options in different contexts: o notice of the decision (after-the-fact or in advance) o an opportunity to make written submissions o an opportunity to comment on the draft decision o access to written reasons from the decision-maker o disclosure of relevant information held by the decision-maker (or, rarely, by other parties) o an oral hearing (usually with representation by counsel) o an opportunity to call/ cross-examine witnesses o a right of appeal (narrow or broad) Baker [1999] 2 SCR 817 (Can) o seminal case on how one arrives at the content of procedural fairness o order to deport Ms Baker from Canada after 11 years in the country (illegally) o discretionary decision by immigration officials whether to allow Ms Baker to remain on humanitarian and compassionate grounds o Ms Baker suffered from mental illness and had had four children in Canada o her application was denied by officer Caden on advice from (junior) officer Lorenz Ms Baker argued that procedural fairness required: - an oral interview before the decision-maker - notice to her children and the other parent of the interview - a right for the children and the other parent to make submissions at the interview - notice to the other parent of the interview and of that parent s right to have counsel present - reasons for the decision - she also argued that notes taken by officer Lorenz showed unacceptable bias L Heureux-Dub J: five factors are relevant to the determination of the content of procedural fairness: 1. nature of the decision and the process 2. nature of the statutory scheme/ terms of the statute 3. importance of the decision to the individual or individuals affected

64 4. legitimate expectations of the individual 5. procedural choices of the agency itself The nature of the decision being made and the process followed in making it (para 23) The more the process provided for, the function of the tribunal, the nature of the decisionmaking body, and the determinations that must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required . - note: this incorporates the old judicial-administrative distinction as one factor in the analysis - process, function, nature of the decision making body, and determinations The nature of the statutory scheme and the terms of the statute pursuant to which the body operates (para 24) The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty . Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issues and further requests cannot be submitted . - where there is finality in the decision - dispositive vs non-dispositive decisions The importance of the decision to the individual or individuals affected (para 25) The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated - note: in many cases, the content question boils down to a conflict between this factor and the state s interest in effective and expeditious decision-making The legitimate expectations of the person challenging the decision (para 26) If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness . Similarly, if the claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded. - i.e. in Canada legitimate expectations is part of the doctrine of procedural fairness and does not create substantive rights Mount Sinai Hospital The choices of procedure made by the agency itself (para 27) - issue of deference particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances - eg., SPPA gives those tribunals the power to govern their own rules and procedures o respect for their choice of procedural rules o still subject to the common law requirement of procedural fairness o one factor to look at in determining the level of fairness required [although not determinative] important weight must be given to the choice of procedures made by the agency itself and its institutional constraints - note: here we see deference to the agency itself rather than the legislature (contrast 2. above, especially)

65 the list of five factors is not exhaustive (para 28): The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision . - note: like other questions, the question of procedural content is contextual and variable; more about building persuasive arguments than getting the right answer application of the factors in this case: 1. the decision was different from a judicial decision because it involved considerable discretion and the consideration of multiple factors a. not adjudicative, public officials with discretion making the decision 2. within the statutory scheme, the decision was an exception to the general principles of immigration law; however, there was no appeal procedure (although judicial review was available with leave) 3. the decision has exceptional importance to the lives of those with an interest in its result the claimant and his or her close family members 4. no legitimate expectation to special procedures was created by the Convention on the Rights of the Child 5. the Minister has considerable flexibility under the statute to decide on the proper procedure; immigration officers do not, in practice, conduct oral interviews in all cases L Heureux-Dub J disagrees with the earlier holding of the Federal Court of Appeal that the duty of fairness owed in this context is minimal Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered (para 32) o minimal, meaningful, high level of fairness o general content of fairness which will guide the specific content

specific content of procedural fairness in this case: - must allow the applicant to make written submissions, but.. o no requirement for an oral hearing or interview ( particularly given the fact that several of the factors point toward a more relaxed standard (para 34)) - duty to give reasons for the decision (satisfied by the provision of officer Lorenz notes) - also, the officer s notes displayed a reasonable apprehension of bias Procedural fairness specific content - e.g. right to notice/ disclosure based on a municipal by-law o Pleasures Gentlemen s Club [2008] (Ont CA) - do requirements of notice/ reply require an oral hearing? o Singh [1985] (SCC) o Khan [1997] (Ont CA) o Suresh [2002] (SCC) (additional reading) Analytical Framework Procedural Fairness - what are the relevant sources of procedural rights or requirements? - is the threshold test satisfied for the source in question? - what general level of fairness is required based on the five Baker factors?

66 what is the specific content of the procedural rights or requirements in the particular case (see next slide)?

Content of Procedural Fairness - e.g. fairness options in different contexts: - notice of the decision (after-the-fact or in advance) - an opportunity to make written submissions - an opportunity to comment on the draft decision - access to written reasons from the decision-maker - disclosure of relevant information held by the decision-maker (or, rarely, by other parties) - an oral hearing (usually with representation by counsel) - an opportunity to call/ cross-examine witnesses - a right of appeal (narrow or broad) Pleasures Gentlemen s Club [2008] (Ont CA) - example of a requirement for greater disclosure of the grounds for revocation of a license, as a component of a By-law requirement for prior notice of a hearing - the source of the procedural requirement: municipal bylaw entitled to a hearing before your license and notice - decision by Hamilton City Council, on recommendation of licensing committee, to revoke licence to operate adult entertainment parlour - Club sought judicial review, arguing that City breached its right to a fair hearing - City By-law regulates adult entertainment parlours; proposes reduction from four to two via expiry or revocation of existing licences - City s Issuer of Licences may recommend revocation of licence to licensing committee where licensee has not carried on business within a reasonable period of time - licensees have procedural rights under By-law, including right to a hearing prior to revocation plus written notice of hearing (including grounds for revocation) the notice of hearing stated here: The grounds for the hearing are: (a) The following documents: (i) Certified copy of expired liquor licence. (ii) Certified copy of cancellation notice of liquor licence application. (iii) Inspection reports of Standards & Licensing Inspectors. (iv) City of Hamilton Adult Entertainment Parlour Licence. (v) City of Hamilton Sale of Lands for Tax Arrears notice. (b) By-law 01-156 . this is a list of documents but not reasons/grounds; very little content to the notice counsel to Club requested particulars of evidence to be introduced at hearing from City City responded with general outline of evidence (see para. 11) at the hearing, counsel objected to lack of notice of evidence, but hearing proceeded at the hearing, it emerged that information provided by the City was false or misleading (see para. 14) city had not communicated to her that there was concern she had the license but was not operating at the hearing, owner of Club indicated intention to open the club immediately, even without liquor licence

67 City licensing committee voted unanimously to revoke licence to operate for failure to carry on business within reasonable time Divisional Court dismissed application for JR on basis that adequate particulars of evidence had been given and no bias or bad faith was established

Rouleau J.A.: - no need to consider the standard of review re: procedural fairness (para. 23) - lists Baker factors however does not offer detailed application o would be expected to provide analysis on exam however - City s failure to provide proper disclosure violated the right to a fair hearing and tainted hearing from outset - By-law requires that basis for proposed revocation be provided prior to the hearing - City s notice of the hearing did not refer to the grounds for revocation, but to a series of largely irrelevant documents and sections of the By-law (para 30) The subsequent letter from the city came two days before the hearing and served only to further mislead the appellant about the nature of the evidence . [I]t failed to clear define the issue to be determined (para 31) o should have stated what the grounds for revocation were in the notice If proper disclosure had been made, the appellant would have known well before the hearing date that the failure to open was the basis of the recommendation . It is not for this court to speculate as to whether the result would have been the same had there been timely and adequate disclosure: Cardinal v. Kent Institution . - remedy: decisions of licensing committee and City Council are set aside; effect is to reinstate licence to operate In Class Example Five Baker Factors nature of the decision and the process - process, function, nature of the decision making body, and determinations - by the Minister o administrative, policy-laden, highly individualized - by the Commission o adjudicative nature of the statutory scheme/ terms of the statute - for the minister: appeal is available to the commission - for the commission: appeal is available on questions of law to divisional court o decision is determinative importance of the decision to the individual or individuals affected - livelihood, economic, business interest - similar to Pleasure s gentleman club legitimate expectations of the individual - no official promise arising from what was said (the following is a trap: o Jill contacted the Ministry of Environment and was encouraged to plead her case before the
Good Rural Living Commission which, Jill was told, would almost certainly reimburse her for lost revenue so long as she presented a compelling case

68 no prejudgment of the issue present

procedural choices of the agency itself - broad discretion to control its hearings - mention SPPA s 25 General Level of Fairness - adjudicative, limited appeal, important decision, no legitimate expectation, choice of procedure - moderate; moderate to high - not one factor is determinative Singh [1985] 1 SCR 177 (Can) - oral hearings o concerns of credibility o argument for oral advocacy - example of a procedural requirement for an oral hearing what source of procedural rights and requirements? o Charter, Bill of Rights - appeals by refugee claimants to Immigration Appeal Board from Minister s decision denying claims based on advice of the Refugee Status Advisory Committee - follows earlier examination of claimants under oath by senior immigration officer - immigration officer interviews person under oath, transcript given to minister/committee; committee makes recommendation to minister - no oral hearing for claimants where IAB decides there are no reasonable grounds to believe a claim could be established o only face to face contact was at the initial interview stage SCC: -

Wilson J (for 3 judges) finds violation of s. 7 of Charter Beetz J (for 3 judges) finds violation of s 2(e) of Bill of Rights, expresses no opinion on Charter o refers specifically to a right to a fair hearing where an interest is at stake o applies to federal statutes

Wilson J: - Minister and IAB had followed the statutory procedures - where the statute is sufficiently clear, cannot resort to common law therefore can only look to Bill of Rights or Charter - statute did not allow additional procedural requirements to be read in under the common law - thus: is there a violation of s 7? - focus on the refugee claimant s rights under the statute as basis for engaging s. 7: o In my view, to deprive him of the avenues open to him under the Act to escape from that fear of persecution must, at the least, impair his right to life, liberty and security of the person in the narrow sense advanced by counsel for the Minister. (para 44) - content of the duty of procedural fairness (pursuant to the principles of fundamental justice PFJ)? - written submissions may, in appropriate circumstances, be an adequate substitute for an oral hearing, but not in all o In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing (para 59)

69

Are s 7 rights at stake, then ask is credibility an issue primary concern is the inadequacy of the claimant s opportunity to be heard Wilson J -- content of the duty cont: o . The applicant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister s case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of fundamental justice as set out in s. 7 of the Charter. (para 61) thus, the scheme violates s 7; not saved by s 1

Beetz J: - allows appeal based on Bill of Rights, s. 2(e): o no law of Canada shall be construed and applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. - no dispute that the process involves determination of the claimants rights and obligations - rejects AG s argument that claimants were afforded a fair hearing - without an oral hearing, claimants not heard by the Advisory Committee, by the Minister, or by the IAB summary: - using s 7 for the establishing the right to an oral hearing as a requirement of pfj since life, liberty, security of the person is at stake and where credibility issues arise Khan (1997), 34 OR (3d) 535 (CA) - K failed a law school exam, but claimed that a fourth booklet had been lost - failure of the exam contributed to K s failure of second year, which required her to complete an additional semester before graduating - appeal to the Faculty Exam Committee was rejected without an oral hearing, for these reasons: o exams are subject to strict procedures o exam booklets had not been lost in past o K had indicated there were only three booklets o little was written in the third booklet - appeal to the University Senate was also rejected Laskin J.A. (majority): - procedural fairness required: o an oral hearing to evaluate K s credibility o an opportunity for K to correct or contradict the factors relied on by the Committee o consideration by the Committee of whether the procedures followed in this exam were proper Finlayson J (dissent): - concern about administrative burden - Committee members were aware of the quality of K s work in the first three booklets - consequence for the individual was merely to prolong her studies by a semester

70 Ministerial security certificate/ order to deport permanent resident on grounds of danger to the security of Canada

decision made based on report by immigration officer, informed by CSIS information S was allowed to make written submissions and file material, but not given access to the report or the CSIS information SCC: s. 7 interest was engaged: Suresh had established prima facie case that, if deported, he would likely be tortured principles of fundamental justice: at the least, these require compliance with the common law requirements of procedural fairness Baker factors applied to arrive at content of PFJ in this context: decision/ process resembled judicial decision-making, but was also highly discretionary statutory scheme re: danger opinion (s. 53(1)(b)) did not lay out any procedural rights consequences of deportation are serious; add to this refugee status of S plus likelihood of torture Government s ratification of Convention Against Torture s, which prohibits deportation to torture, indicates a commitment to procedural safeguards procedural choices of the Minister (highly discretionary under the Act) do not outweigh the need for procedural protection given the serious situation of refugees who face torture if deported Government s ratification of Convention Against Torture s, which prohibits deportation to torture, indicates a commitment to procedural safeguards procedural choices of the Minister (highly discretionary under the Act) do not outweigh the need for procedural protection given the serious situation of refugees who face torture if deported Procedural fairness Dismissal of public officers - Dunsmuir [1990] (SCC) - Keen v. Canada [2009] (FC) Ridge v Baldwin - three categories of public officer appointments o master and servant rules (private law of employment) o officer employed at pleasure o officer can be dismissed for cause - duty of procedural fairness and requirement for a hearing for the third category i.e. for cause o hearing prior dismissal o oral hearing o remedy available: reinstatement - intended to protect independence of the public officers: ensure separation of powers Background: Knight [1990] 1 SCR 653 (Sask) - power of school board to dismiss director of education without cause/ appointed by statute at at pleasure - requirement of procedural fairness extended to category 2: i.e., employed at pleasure of the Crown o oral hearing required for dismissal public officers employed at pleasure - SCC: duty to act fairly applies because (1) the decision is final and specific , (2) the position has a statutory flavour and goes beyond a private employment relationship, and (3) there is a significant impact on the individual

71

L Heureux-Dub J: The justification for granting to the holder of an office at pleasure the right to procedural fairness is that, whether or not just cause is necessary to terminate the employment, fairness dictates that the administrative body making the decision be cognizant of all relevant circumstances.... One person capable of providing the administrative body with important insights into the situation is the office holder himself.... - recall also Nicholson [1979] (SCC) Collective Agreements - provide elaborate processes involving dismissal including a grievance procedure Dunsmuir v NB [2008] 2008 SCC 9 - not subject to a collective agreement - if you are a public officer the primary basis for protection is the contract/collective agreement o Knight reversed: no hearing required for public officers employed at pleasure o not clear whether Ridge v Baldwin reversed ie dismissable for clause - D was a public servant and statutory office holder with the NB Department of Justice - D was dismissed by NB without cause being alleged and without a hearing - on dismissal, D was given 4.5 months salary in lieu of notice - NB relied on s. 20 of Civil Services Act: Subject to the provisions of this Act and any other Act [termination] shall be governed by the ordinary rules of contract. - D grieved the dismissal under the NB Public Service Labour Relations Act - s. 97(2.1) of that Act stated: o Where an adjudicator determines that an employee has been discharged or otherwise disciplined for cause and the collective agreement or arbitral award does not contain a specific penalty for the infraction that resulted in the employee being discharged or otherwise disciplined, the adjudicator may substitute such other penalty for the discharge or the discipline as to the adjudicator seems just and reasonable in all the circumstances. - D asserted that the government had in reality dismissed him for cause and that he was entitled to seek reinstatement - adjudicator ordered that D be reinstated because he was dismissed without a hearing (citing Knight) - SCC: Knight is overturned for its establishment of a common law duty of fairness where a public employer dismisses a public officer who is subject to a contract of employment - D was appointed at pleasure as a public officer under statute and his dismissal as an employee was governed by the ordinary rules of contract - no independent right to a hearing based on common law rules of procedural fairness majority: [104] while public law is rightly concerned with preventing the arbitrary exercise of delegated powers, the good faith exercise of the contractual rights of an employer, such as the right to end the employment relationship on reasonable notice, cannot be qualified as arbitrary. Where the terms of the employment contract were explicitly agreed to, it will be assumed that procedural fairness was dealt with by the parties . - [105] . the good faith exercise of a common law contractual right to dismiss with(*out?) notice does not give rise to concerns about the illegitimate exercise of public power. Moreover, as will be discussed below, where public employers do act in bad faith or engage in unfair dealing, the

72 private law provides a more appropriate form of relief and there is no reason that they should be treated differently than private sector employers who engage in similar conduct. no public law duty of procedural fairness where the public officer is employed at pleasure

sources of procedural fairness - statute - contract - common law o any public officer is entitled to the procedural fairness protections as long as there is a sufficient statutory flavor (Knight) - if the statute/contract does not provide for the requirement for the hearing, there is no further right found in the common law (Dunsmuir) - Ridge v Baldwin is preserved: procedural requirement for dismissable for cause SCC (para 113 and 115-16): - assume that public employment relationships are contractual - exception: judges, ministers, and others who fulfill constitutionally defined roles - exception: duty of fairness may flow by necessary implication for a statutory power re: the employment relationship - for public officers appointed at pleasure , procedural fairness is required to ensure that public power is not exercised capriciously o still a duty of procedural fairness however it is more limited than that which was required by Knight The Isotope Crisis - reactor operating since 1957 - produces a significant portion of the world s medical isotopes used for the treatment of cancer patients - CNSC issues the license for Chalk River and concludes that Chalk River is not complying with safety requirements - government upset over this decision: ordered the commission to allow the reactor to resume operation commission refuses - under statute, minister has the authority to issue a binding directive - parliament pass legislation specifically ordering the reopening of the reactor Keen v Canada (AG) 2009 FC 353 - by an Order-in-Council, K was dismissed as President of the Canadian Nuclear Safety Commission o Order in Council: courts are loathe to look behind the processes of cabinet - dismissed as president, maintains membership in the commission however resigns - K subsequently resigned as a member of the CNSC and sought judicial review of her dismissal as President - Members of the CNSC are appointed by the Governor in Council and hold office for 5-year terms during good behaviour . - President of the CNSC is designated by the Governor in Council; no statutory indication of a term limit or conditions. (see Nuclear Safety and Control Act, S.C. 1997, s. 10 and 12) o statutory silence regarding appointment of president

73 prior to K s dismissal, Minister of Natural Resources sent letter to K seeking her submissions prior to his possible recommendation to the Governor in Council that K be terminated as President, but allowed to keep her position as a member of the CNSC K sought specific allegations of any personal misconduct or poor performance on her part

Hughes J (FC): - all federal public officers are deemed to hold office during pleasure unless otherwise expressed by statute or other instrument (Interpretation Act, R.S.C. 1985, c. I-25, s. 23) o silence deemed to mean she holds her office during pleasure - appointment during good behaviour refers to the test for judicial incapacity so as to undermine public confidence in the judicial office - as President of the CNSC, K served at pleasure and her right to procedural fairness was satisfied by the Minister s letter prior to issuance of the Order-in-Council - K was not dismissed as a member of the CNSC and so was not entitled to procedural fairness in relation to her resignation as a member of the CNSC - appointment at pleasure is intrinsically precarious (citing Pelletier, [2008] 3 F.C.R. 40 (FCA)) - in the face of statutory silence such persons have a right to notice of an intention to dismiss and to make representations prior to a final decision to dismiss (citing Dunsmuir, para. 115-16) o not cons defined role o not by statutory implication o statute is silent: deemed to be appointed at pleasure  procedural fairness applies but not at the level of a hearing Procedural fairness specific content - right to notice and reply at the investigatory stage o Tanaka [1996] (NWT Supreme Court) - disclosure (of in-house legal advice) o Pritchard [2004] (SCC) o e.g. from Walkerton Inquiry - right to counsel o Irvine [1987] (SCC) Tanaka v. Certified General Accountants Assn (NWT) [1996] NWT Supreme Court. - no duty of fairness in non-dispositive decision o investigatory decision - complaint of professional incompetence against T, an accountant - judicial review by T of decision by Vice-Chair of the Assn s disciplinary committee to establish a committee of inquiry into the complaint o sufficient basis in the complaint to warrant an investigation - decision was based on information provided by the complainant against T and an investigation by the Vice-Chair - T was informed by the Assn of the complaint and its substance only after the decision to establish a committee of inquiry Donihee J: - unfair to make decision without input from Tanaka threshold met - limited duty to obtain T s reply during the Vice-Chair s initial investigation - significant impact on professional reputation of decision to establish committee of inquiry

74 It is misleading to simply state that either there is or is not a duty of fairness in the investigatory stage, since the wide divergence of the type of powers being utilized by investigating bodies may lead to different results . (para. 35, citing Casey) those [cases] which have found there to be a duty of fairness [in an investigation] have tended to be those where a conclusion or a finding as to the rights of the individual would ensue. (para 35) notice should have been given to T, seeking T s response to the complaint purpose is simply to assist the investigator to come to a reasoned decision and to avoid errors remedy: direct a fresh investigation by someone other than the Vice-Chair

In Class Example Five Baker Factors nature of the decision and the process - process, function, nature of the decision making body, and determinations - by the Minister o administrative, policy-laden, highly individualized - by the Commission o adjudicative nature of the statutory scheme/ terms of the statute - for the minister: appeal is available to the commission - for the commission: appeal is available on questions of law to divisional court o decision is determinative importance of the decision to the individual or individuals affected - livelihood, economic, business interest - similar to Pleasure s gentleman club legitimate expectations of the individual - no official promise arising from what was said (the following is a trap: o Jill contacted the Ministry of Environment and was encouraged to plead her case before the
Good Rural Living Commission which, Jill was told, would almost certainly reimburse her for lost revenue so long as she presented a compelling case

no prejudgment of the issue present

procedural choices of the agency itself - broad discretion to control its hearings - mention SPPA s 25 General Level of Fairness - adjudicative, limited appeal, important decision, no legitimate expectation, choice of procedure - moderate; moderate to high - not one factor is determinative Content of Fairness Notice - no notice given that there were complaints and that an investigation had begun

75 common source of fairness non-dispositive decision o could argue Tanaka that there should be a limited duty of fairness - investigator: non-dispositive and insufficiently effecting the rights of the individual to warrant a higher duty of fairness o timing/content: did it allow an effective reply - minister s decision: investigator s report used as notice o no notice prior to suspension - commission decision o was reasonable notice given s6 SPPA  investigator report  statements of anticipated evidence o where the good character is question s8 of SPPA  reasonable information of any allegation s 8Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto Notice of hearing 6.(1)The parties to a proceeding shall be given reasonable notice of the hearing by the tribunal. Hearings to be public, exceptions 9.(1)An oral hearing shall be open to the public except where the tribunal is of the opinion that, (a) matters involving public security may be disclosed; or (b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the tribunal may hold the hearing in the absence of the public Oral Hearing - are there credibility issues at stake not informed of the substance of Wayne s complaint - issue of disclosure: provision of info to the affected individual that is information used in decision concerning the individual Disclosure in administrative law - in judicial review, an individual is typically entitled to disclosure of information relied on by the decision-maker (especially adjudicative decision-makers) - unlike in civil or criminal proceedings, an individual is typically not entitled to information held by third parties that was not otherwise considered by the decision-maker (i.e. there is no discovery ) - in-house legal advice offers an interesting problem re: disclosure of information relied on by the decision-maker Disclosure of in-house legal advice: Pritchard [2004] 1 SCR 809 - P complained of sexual harassment by her former employer - Ontario HR Commission declined to deal with the complaint -

76 on judicial review, P sought disclosure of an in-house legal opinion to the Ontario HR Commission not supplied with in house legal opinion given to the decision maker

Judicial Review Procedure Act, s. 10: When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made. o record  documentation lead to the decision  submission  witness statement  transcripts  reasons SCC: - in-house legal advice to an administrative board is protected by solicitor-client privilege - cannot be overridden by mere inference in a statute - however, policy advice given in an executive or non-legal capacity is not protected - here, the advice was legal and thus protected Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered. (para 20) e.g. from Walkerton Inquiry evidence - email in 1997 from John Tooley (supervisor, MOE Belleville office) in which Tooley indicated there was no requirement for private labs to notify the local MOE office of adverse results at water systems: o . In fact, I can almost guarantee that the laboratory does not notify the [MOE] District Manager in the vast majority of cases. The number of deteriorating, poor and unsafe results [that the MOE learns about] have dropped dramatically since our labs do not do the analyses. email was sent in advance of a meeting on notification requirements for drinking water testing email reply from Stella Couban (lawyer, MOE Legal Services Branch) after consulting with superiors at the LSB and presenting three options, of which the third was to enact a mandatory notification regulation: . I am not sure whether the concept of a regulation imposing a new requirement is even a starter with the current regime and its interest in lessening or reducing the amount of regulatory control.  policy or legal advice?

in her testimony to the Inquiry, Ms. Couban cited three problems with the option of a notification regulation: 1. it involved suggesting a new regulation in the current government climate 2. it would have resource implications for front-line MOE staff at a time when their resources had been cut fairly significantly

77 3. it would impose a new requirement on the private sector a move that would probably not have been a starter with the government at the time in-house legal advice protected by solicitor-client privilege?

Right to counsel in administrative law - individuals are typically entitled to be represented by an agent, which may include a lawyer or para-legal, in administrative decision-making - scope of the right to counsel (e.g. rights to call evidence or cross-examine witnesses) is often restricted to facilitate or expedite the process - in rare circumstances, lawyers may be precluded entirely (e.g. Quebec Small Claims Court) Irvine [1987] 1 SCR 181 (Can) - exemplifies a process with restricted procedural rights due to a special context: o People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice . Adam Smith The Wealth of Nations (Book I, Chapter X)  competition regulation: interest of the government to ensure competition in the market so the consumers benefit from the competition so that prices are reduced Three stages of decision making - Investigation by the director of the commission - full inquiry by a tribunal of the commission - decision by the ministers on whether to act on the report of the commission Irvine is primarily concerned with the first stage, the investigation by the director - could argue that it was non-dispositive, not the final decision made - director held hearings in private and could interview individuals in private - counsel for the director would examine witnesses in these private hearings - witnesses were not allowed to be present when other witnesses were being questioned - each witness is allowed to have a lawyer; lawyer can be present throughout the investigation - lawyer can only ask questions of their own client, cannot ask questions of any other person who testifies or cross-examine - argue that this process was procedurally unfair Irvine [1987] 1 SCR 181 (Can) - inquiry by Restrictive Trade Practices Commission (now Competition Commissioner/ Tribunal) into alleged price-fixing - investigation by Director of the Commission could occur in private and witnesses could be denied access to each other s testimony - right in the statute to be represented by counsel - hearing was held following compelled interviews of 29 persons and notices to their corporate employers - counsel for the persons/ companies under investigation could be present during the hearing - role of counsel was to conduct re-examination for clarification or explanation only; no crossexamination of other witnesses

78 Director s counsel carried out examination-in-chief of each witness Director s report supplied to the Commission which then decided whether to hold a full public inquiry following an inquiry, the Director could make recommendations to Ministers re possible criminal offences or other remedies

Estey J - stage 1 findings are not given to the public or minister limited distribution o Baker -seriousness of the consequences to the individual is limited - overall decision-making structure is not unfair; rationales: (1) special difficulties of trying to uncover market conspiracies where a small number of sophisticated players interest of the state in effective investigations (2) the Director s findings are given only to (a) those against whom allegations are made and (b) Commission; they are not given to the Ministers or the public (3) the Director s role is purely investigatory ; he or she does not make dispositive decisions based on the information that is acquired in private hearings o the report to the Ministers is made by the Commission as a whole after a full public inquiry o any decision to prosecute is left to the Attorney General of Canada There is a very limited duty of fairness at stage 1 purely investigatory stage which requires limited level of fairness role of the lawyers was sufficient to satisfy statutory and common law requirement of procedural fairness to have counsel might have a right to counsel but there are degrees of representation o cross examination o speak on one s behalf example of decision making context where the unique interest of the state justify limited procedural fairness rights example of right to counsel might be satisfied by limiting the role of counsel

Procedural fairness specific content - giving of reasons o VIA Rail [2001] o Lafontaine [2004] - was there a duty to give reasons o if yes, were reasons given and were they adequate to satisfy the requirement Baker [1999] 2 SCR 817 (Can) Duty to give reasons: In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required . (para 43) o duty was satisfied by the provision of Lorenz notes o reasons may be limited to accommodate the demands of expeditiousness in the decision making process

79 Content of the duty to give reasons: In my view, however, the reasons requirement was fulfilled in this case . The notes were given to Ms. Baker when her counsel asked for reasons . Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. (para 44) Rationale to Give Reasons - facilitate review by the courts o courts can consider reasons and see whether anything was missed, or if there was any error in the interpretation of the statute o give indication to others how the regulatory requirements are being interpreted and applied o self-disciplining mechanism for the decision maker o person affected gets an explanation - four parties considered o individual affected o decision maker itself o court reviewing o others who may be subject to the same regulation VIA Rail [2000] FCA - group of athletes, 8 of which were disabled travelled on via rail - complained that via had not provided sufficient access - NTA has raised a new issue, not raised by the athletes regarding the passenger tariff - regulation of VIA rail by National Transportation Agency - VIA Rail Passenger Tariff: o requirement that a personal attendant who traveled on same ticket as person with a disability had to be capable of (a) assisting the person with boarding and de-boarding and (b) attending to the person s personal needs during the trip - NTA concern that it amounted to an undue obstacle to access to require personal attendant to assist in boarding and de-boarding o Via rail should assist in boarding - National Transportation Agency concluded that the requirement was an undue obstacle to the mobility of persons with disabilities - NTA ordered VIA to remove the requirement and assume responsibility for the boarding/ deboarding of passengers with disabilities What does the duty to give reason entail? Federal Court of Appeal: The duty to give reasons is only fulfilled if the reasons provided are adequate . as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. (para 21) o were the reasons adequate  look to the purpose of giving reasons (4 rationales) - here, the functions include: focusing the decision-maker; assuring the parties; effectuating any right of appeal or judicial review; and guiding others (para 17-20)

80 for this Court to hold that the Agency s reasons are adequate, we must find that those reasons set out the basis upon which the Agency found that the existence of the tariff constituted an obstacle, that they reflect the reasoning process by which the Agency determined that the obstacle was undue and include a consideration of the main factors relevant to such a determination. (para 24; emphasis added) o basis for the conclusion that the tariff was an obstacle  definition of obstacle; undue obstacle y taken from statute, case law  why the particular requirement in the tariff constituted an obstacle o reasoning process  competing consideration in favour or against Via Rail o consideration of the main factors  why one preferred one submission over another here, the reasons do not define the concepts of obstacle and undue and do not sufficiently indicate the reasoning process followed o no definition of obstacle or undue o relevant factors are not considered by the NTA in explaining why the obstacle is undue relevant factors o require staff, new training, collective agreements o effect of requirement on scheduling and effect on other passengers o insurance o additional personnel at small stations factors relevant that this was an undue obstacle o difficult to get a personal attendant and thus limiting mobility o dignity of the individual o should be able to travel with as much independence as possible for the reasons to be adequate these factors had to have been canvassed NTA should have considered relevant aims of the Act, and should have considered other relevant factors including VIA s operational & economic objectives and the needs of different groups of passengers see para 41-42

Congrgations des tmoins de Jhovahv Lafontaine [2004] 2 SCR 650 (Can) - municipal planning decisions duty to give reasons - refuses on planning grounds to allow a Kingdom Hall to be built - SCC overturn the decision on the basis of failure to give reasons - three decisions by Lafontaine Municipal Council denying a re-zoning application by the Congregations of Jehovah s Witnesses to build a place of worship o first decision: rejected proposal to build in residential zone; Council cited burden on residential taxpayers following a study  only one site zoned for this use and this site was not adequate, request a different site  commission conducted a study on the impact on rate payers  public committee held which gave reasons o second decision: rejected proposal to build in commercial zone; Council says that lots are still available in a P-3 community zone  applied to have kingdom hall built on a commercial zone rejected with reasons o third decision: indicated that no lots were available and stated that approval fall within the municipality s discretion; The municipal council of Lafontaine is not required to provide you with a justification and we therefore have no intention of giving reasons for the council s decision. (para 91)

81 o detailed reasons given at first decision SCC majority: municipality owed duty of fairness; content based on Baker factors: o nature of the decision: both administrative and political; delegated discretion of elected officials to decide in the public interest; but may not act arbitrarily (cites Roncarelli)  calls for a lower level of fairness  not a judicial decision making process  but rather administrative and political o statutory scheme and its provisions: no appeal mechanism  calls for a higher level of fairness because of the finality o importance to the Congregation: practice of religion  calls for a higher level of fairness on the basis of freedom of religion

content cont.: - legitimate expectations: Here, the municipality followed an involved process in responding to the Congregation s first rezoning application, in so doing giving rise to the Congregation s legitimate expectation that future applications would be thoroughly vetted and carefully considered. (para 10) o since there was an elaborate process in the first stage, this gave rise to a LE that reasons would be given - procedural choices of the decision-maker: in rezoning, municipalities have greater expertise than the judiciary; but less weight given here because no record indicating that village engaged its expertise municipality was required to carefully evaluate the application for a zoning variance and to give reasons for refusing them. (para 12) o Giving reasons for refusing to rezone in a case such as this serves the values of fair and transparent decision making, reduces the chance of arbitrary or capricious decisions, and cultivates the confidence of citizens in public officials.... This duty applied to the first application, and was complied with. If anything, the duty was stronger on the Congregation s second and third applications, where legitimate expectations of fair process had been established by the Municipality itself. (para 13)

municipality acted unlawfully: In refusing to justify its decision to deny the second and third applications for zoning variances, the Municipality breached the duty of procedural fairness it owed to the Congregation . The Municipality acted in a manner that was arbitrary and straddled the boundary separating good from bad faith. (para 30) - second and third refusals set aside; remitted to municipality for reconsideration Summary of duty to give reasons - is there a duty to give reasons based on the common law (Baker) or some other source (e.g. SPPA)? - if so, what is the general level of the duty (Baker factors) e.g. adequate reasons that indicate the basis for the decision, its reasoning, and consideration of relevant factors? (VIA Rail) - did the form and content of the reasons that were given satisfy this duty in the specific context? Case study on procedural fairness: public inquiries - overview/ Arar Inquiry terms of reference - notice: Blood Inquiry [1997]

82 compelled testimony: rights (in criminal context) to fair trial and against self-incrimination: Phillips [1995] additional reading: Dixon [1997] (FCA)

Overview public inquiries - engage in a process o hearings with elaborate representation and participatory rights to determine findings of fact which may have significance for the reputation of individuals/organization o findings of fact in an investigatory setting - can also serve public policy purposes ie Royal Commission - special mechanism of investigation into tragic or scandalous events associated with government - findings of fact and recommendations - not established by legislature or courts; established by the executive (usually by Cabinet) pursuant to dedicated general legislation o Public Inquiries Act, R.S.O. 1990, c. P-41 o Inquiries Act, R.S.C. 1985, c. I-11 Bill 212: an act to promote good government o Public Inquiries Act of Ontario being revised o powers of government over the budgetary and timeline decisions - conducted by a commissioner who is usually a sitting judge (independence) o sitting judge has the maximum status of independence o will the highly publicized inquiry call into question the independence of the judge o will the findings of the judge later be punished (O Connor not promoted to Chief Justice of Ontario after the government was not pleased with his handling of the Walkerton Inquiry) - exercises coercive powers re: witnesses and documents (thoroughness; independence) o power to compel a person to testify in public o compel production of documents - elaborate procedural rights; no findings of criminal or civil responsibility (fairness) o can make factual findings, findings of misconduct - held in public (openness; independence) What principles should a public inquiry operate under? - accountability/public interest o Cabinet is accountable for establishing an inquiry and setting out the parameters of the investigation - openness - independence - capacity (including coercive powers) - fairness to the persons investigated Walkerton Inquiry Principles - Independence - Thoroughness - Openness o who should decide what is made public o UK 2005 amendment: government can determine what evidence be made public - Fairness - Expeditiousness

83 Thoroughness, Openness, Expeditiousness may be in conflict with Fairness at times Alternative Investigative Models - parliamentary committee o open, highly politicized (problem of independence) - auditor general - ombudsperson - judicial review - media - criminal prosecution - civil suit - employee discipline - internal investigation - outside consulting firm o issues of independence e.g. Arar Inquiry terms of reference - a) to investigate and report on the actions of Canadian officials in relation to Maher Arar, including with regard to (i) the detention of Mr. Arar in the United States, (ii) the deportation of Mr. Arar to Syria via Jordan, (iii) the imprisonment and treatment of Mr. Arar in Syria, (iv) the return of Mr. Arar to Canada, and (v) any other circumstance directly related to Mr. Arar that the Commissioner considers relevant to fulfilling this mandate, - in this Order referred to as the factual inquiry , and Arar Inquiry terms of reference (b) to make any recommendations that he considers advisable on an independent, arm s length review mechanism for the activities of the Royal Canadian Mounted Police with respect to national security based on (i) an examination of models, both domestic and international, for that review mechanism, and (ii) an assessment of how the review mechanism would interact with existing review mechanisms, in this Order referred to as the policy review . Arar Inquiry terms of reference (c) pursuant to section 56 of the Judges Act, the Honourable Dennis R. O Connor be authorized to act as a Commissioner on the inquiry ; . (e) the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry, and to sit at any times and in any places in Canada that he may decide; Arar Inquiry terms of reference (f) the Commissioner be authorized to grant to any person who satisfies him that he or she has a substantial and direct interest in the subject-matter of the factual inquiry an opportunity during that inquiry to give evidence and to examine or cross-examine witnesses personally or by counsel on evidence relevant to the person s interest; - standing

84 - direct: must be affected in a unique way individually Arar Inquiry terms of reference (o) the Commissioner be directed to perform his duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization and to ensure that the conduct of the inquiry does not jeopardize any ongoing criminal investigation or criminal proceedings; - no conclusion regarding criminal/civil liability - fairness of the criminal/civil trial is not encroached upon Blood Inquiry [1997] 3 SCR 440 (Can) - timing of notice - investigation into the tainted blood scandal - public inquiries carry potentially serious consequences for those against whom allegations are made - thus, there is a statutory notice and hearing requirement for those who may be the subject of findings of misconduct; e.g.: No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel (Inquiries Act, R.S.C. 1985, c. I-11, s. 13) Blood Inquiry cont. - here, the Commissioner (Horace Krever) issued 45 notices of potential findings of misconduct, involving 95 individuals, corporations and governments - the notices were delivered confidentially at the conclusion of the Inquiry s scheduled hearings Blood Inquiry cont. Cory J: - procedurally fair - all of the parties either (1) had standing before the inquiry or (2) had opted not to apply for standing but were otherwise very aware of the Inquiry s progress and had participated as witnesses - those with standing at the inquiry were given extensive procedural rights Blood Inquiry cont. Cory J: - the language in the notices did not convey findings of criminal or civil liability but rather possible findings of misconduct (using terms like failure , responsible ) - the notices were given in confidence o protects reputation o no detriment until final report - could make closing submissions, submit new evidence - thus, the challenge was premature pending the prospect of further hearings and pending release of the Commissioner s report - judicial review should only come at the conclusion of the report Phillips [1995] (SCC) - provincial inquiry into Westray mine disaster two mine managers faced criminal charges - public inquiry called at the same time they faced criminal charges

85 mine managers applied to quash subpoenas from Inquiry or delay their testimony until after the criminal process was complete rights to a fair trial and against self-incrimination o conduct of the public inquiry put these rights in jeopardy o right to a trial by judge and jury: difficult to get an untainted pool to make up the jury o right against self-incrimination: testimony is compelled at the inquiry Inquiry proceedings had been stayed pending judicial review

Sopinka J: - by the time of SCC hearing, mine managers had opted for trial by judge alone and the trial was underway - on this basis, the stay on Inquiry proceedings should be lifted - but what about the right against self-incrimination? Cory J: - public inquiries can be carried out prior to a criminal charge being resolved only under certain conditions - witnesses may be compelled at public inquiry regardless of whether they may be prosecuted for conduct under investigation before the inquiry - public inquiry must serve legitimate purpose (i.e. must not be a surrogate for criminal investigation) - derivative use immunity for witnesses at public inquiry o to allow PI to occur on an immediate basis o content of testimony cannot be used against them in future proceedings o Crown cannot introduce evidence that would not be available but for the PI o parties to a civil lawsuit can rely on the documents produced at a Public Inquiry however not the compelled testimony - government runs risk of jeopardizing a subsequent criminal prosecution Standing - entitled to be present during hearings - notice of the evidence being produced o who the witness is; will say statements - entitled to counsel - may propose witnesses for the counsel to call - notice of any findings of misconduct - entitled to make closing submissions Cory J (para 97): the government must, and undoubtedly has, carefully considered the choices open to it. If it chooses to proceed with the Westray Inquiry and to endow the Commissioner with an unlimited power to subpoena, then it runs the risk that the criminal trials of the accused managers may possibly be irreparably compromised . On the other hand, if the government wishes to take every possible precaution to ensure that there is no risk to the criminal trials, then it could choose to halt, delay, or limit the powers of the Inquiry. To follow this latter course, however, involves the inevitable risk that the public will lose faith both in the government's ability and willingness to get at the truth and in the political system as a whole . Additional reading: Dixon [1997] (FCA) Governor in Council established commission of inquiry in March 1995 to inquire into the conduct of Canadian Forces in Somalia

86 Governor in Council later declined to extend deadline for commission s report until September 1997, as requested by the commissioners Federal Court judge declared the Governor in Council s Order-in-Council (declining to extend the deadline) ultra vires Dixon cont. Marceau J.A.: . a commission of inquiry issued pursuant to the Inquiries Act depends for its existence entirely on the Governor in Council . How then can the Trial judge arrive at the conclusion that, once created, the Commission somehow acquired independent statute, not only with respect to the manner in which it exercised its powers within its terms of reference, but also with respect to its very existence and its institutional structures ? (para 12) as a creature of the executive, Commission must abide by the Governor in Council s deadlines postscript Jean Chrtien, My Years as PM (2007): For the opposition parties, calling for a public inquiry is usually an easy way to dig up dirt or keep a hot issue on the front burner . For the government, giving in to the calls is often a mechanism to do nothing, to dodge responsibility, or to postpone a controversial decision . Very few of these inquiries in my experience have ever been of much use, and those few were valuable only because they didn t turn into television soap operas .. But it is the nature of public inquiries to get turned into show trials, kangaroo courts and political entertainment .. There s not the same right of due process . Scores of reputations are shattered for no good cause. (p 187-188) What is the appropriate role of public inquiries and what should be their limits? Closed proceedings - not open to the person who s rights are being affected - overview: secrecy and unfairness - flexible approach to closed deportation proceedings: Chiarelli [1992] (SCC) - (modestly) constrained approach to closed security certificate proceedings: Charkaoui No. 1 [2007] (SCC) How to know you are being smeared - you are accused without warning - you are accused of conduct that is sufficiently vague to make it difficult or impossible to disprove Jack is untrustworthy Jill is a threat - the accusation is dribbled out over time - you are forced by the accusation to reveal information or commit to positions on the record - you are accused anonymously sources say The rendition and torture of Maher Arar - findings and conclusions of the Arar Inquiry, based on a review of all secret material and testimony by CSIS/ RCMP witnesses in closed proceedings: o 26 Sept 2002: while passing through JFK airport in New York, A was arrested and detained by American officials for 12 days o 8 October 2002: A was removed against his will to Syria where he was imprisoned for nearly one year

87 o o 2002-03: while in Syrian detention, A was interrogated, tortured and held in degrading and inhumane conditions 5 Oct 2003: A returned to Canada after his release from Syria

The rendition and torture of Maher Arar - A has never been charged with any offence in Canada, the US, or Syria - based on evidence on all information collected about A in Canadian investigations, there is nothing to indicate that A committed an offence or that his activities constitute a security threat - although RCMP officers were interested in interviewing A in 2001-02, they did not consider him a suspect or a target of investigation; however, the RCMP provided US authorities with information about A that was inaccurate, portrayed him in an unfairly negative fashion and overstated his importance in the RCMP investigation The rendition and torture of Maher Arar - e.g. the RCMP requested in Oct 2001 that US authorities place customs lookouts on A and his wife, describing them as Islamic Extremist individuals suspected of being linked to the Al Qaeda terrorist movement - the RCMP had no basis for this description, which had the potential to create serious consequences for A in light of US attitudes and practices at the time - it is very likely that, in making the decisions to detain and remove A, US authorities relied on information about A provided by RCMP followed by the smearing of Maher Arar - Arar Inquiry report: This case is an example of how some government officials, over an extended period of time, used the media to put a spin on an affair and unfairly damage a person s reputation. Given the content of the released information, only individuals with access to classified information could have been responsible for the leaks. The obvious inference is that this was done to paint a picture they considered favourable either to the Canadian government or to themselves. (p 257) - Summer 2003: Arar is a very bad guy who received military training at an al-Qaeda base (R Fife, Ottawa Citizen, citing an unidentified official) - 10 Oct 2003: Arar was roughed up but not tortured while detained in Syria (J Sallot, Globe and Mail, citing unnamed Canadian government sources) followed by the smearing of Maher Arar - 23 Oct 2003: Arar provided info to the Syrians about al-Qaeda, the Muslim Brotherhood, and cells in Canada, and implicated other Canadians in extremist activities (CTV News, quoting senior government officials in various departments ) - 4 Nov 2003: Arar holds a press conference, tells his story, and describes torture he suffered in Syria while denying allegations that he was implicated in terrorism or associated with terrorists - 8 Nov 2003: front-page story entitled Canada s dossier on Maher Arar: The existence of a group of Ottawa men with alleged ties to al-Qaeda is at the root of why the government opposes an inquiry into this case (J O Neill, Ottawa Citizen, citing classified documents); reports in detail what A allegedly told Syrian Military Intelligence while in detention; cites a security source as saying a suspected al-Qaeda cell in Ottawa explained Canadian government opposition to a public inquiry into A s case. followed by the smearing of Maher Arar - 30 Dec 2003: regarding A, this guy is not a virgin .There is more than meets the eye here. Regarding U.S. dossier on A: if the Americans were ever to declassify the stuff, there would be

88 some hair standing on end. (R Fife, Ottawa Citizen, quoting a senior Canadian intelligence source ) 28 Jan 2004: public inquiry announced. Arar Inquiry report: During the Inquiry, witnesses involved in the Arar file and who had access to classified information were asked if they knew of anyone responsible for any of the leaks. All those asked responded, under oath, that they knew nothing and could not shed any light on who might have been involved. The sources of the leaks are a complete mystery to everyone. (p 261)

Overview closed proceedings closed proceeding : an adjudicative process to which the individual whose rights or interests are affected (and the public) is denied access - closed proceedings entail secret evidence - in some contexts, closed proceedings are used to provide special methods of accountability for the use of the state s secrecy powers - the implications of the decision making are not as serious as a criminal process - serious questions of fairness (and accuracy)! Three rationales for invoking national security confidentiality - protect the identity of sources (informers, CSIS employees) - protect ongoing investigations, techniques, technologies relied upon by CSIS - foreign caveats: undertakings attached to international information sharing o cannot disclose information to any third party as a condition of information sharing Administrative Decision Making: rationales for secrecy - immigration context: where the state is relying on secret evidence for deportation - civil lawsuit: where one sues the government, government does not have to disclose confidential documents - security clearance denial - access to information proceedings e.g. Canada Evidence Act, s. 38 - context: put in place after 9/11 - in any proceedings if anyone believes that sensitive info to be disclosed, have a legal duty to inform AG of Canada - duty to inform Attorney General of Canada of any expected disclosure of sensitive information in any proceeding (s. 38.01) - power of AG to give notice that disclosure would be injurious to national security, national defence, or international relations, or to authorize disclosure (s. 38.03 and 38.04) - AG or an individual may apply to Federal Court re: whether disclosure would be injurious and whether any injury from disclosure is outweighed by the public interest in disclosure; appeal to Federal Court of Appeal (s. 38.06 and 38.09) o adopted from doctrine of public interest immunity - Federal Court determines application in closed proceedings where government lawyers and witnesses are heard (s. 38.11) - prohibition on disclosure of such information, fact that notice has been given, or fact that application to Federal Court has been made (s. 38.02) - AG may personally issue certificate prohibiting disclosure even after a Court has ordered disclosure (s. 38.13)

89 CEA s. 38 has been invoked in criminal, civil, and administrative (immigration, security classification, access to information) proceedings most recently at the MPCC inquiry into the treatment of Canadian-held detainees in Afghanistan

Arar Inquiry terms of reference (k) the Commissioner be directed, in conducting the inquiry, to take all steps necessary to prevent disclosure of information that, if it were disclosed to the public, would, in the opinion of the Commissioner, be injurious to international relations, national defence or national security and, where applicable, to conduct the proceedings in accordance with the following procedures, namely, (i) on the request of the Attorney General of Canada, the Commissioner shall receive information in camera and in the absence of any party and their counsel if, in the opinion of the Commissioner, the disclosure of that information would be injurious to international relations, national defence or national security, (ii) in order to maximize disclosure to the public of relevant information, the Commissioner may release a part or a summary of the information received in camera and shall provide the Attorney General of Canada with an opportunity to comment prior to its release, and (iii) if the Commissioner is of the opinion that the release of a part or a summary of the information received in camera would provide insufficient disclosure to the public, he may advise the Attorney General of Canada, which advice shall constitute notice under section 38.01 of the Canada Evidence Act; Arar Inquiry terms of reference (l) the Commissioner be directed, with respect to the preparation of any report intended for release to the public, to take all steps necessary to prevent the disclosure of information that, if it were disclosed to the public, would, in the opinion of the Commissioner, be injurious to international relations, national defence or national security; (m) nothing in this Order shall be construed as limiting the application of the provisions of the Canada Evidence Act; Overview closed proceedings - why may closed proceedings be unfair? - absence of the individual o individual cannot share information that may be relevant o no notice, no right of reply; adversarial principle is gutted o adjudicator is denied access to relevant facts/ argument o counsel/ special advocate cannot receive instructions - absence of the public o adjudicator is denied access to relevant facts/ argument o participants aware that there will be no public scrutiny - note that degree of absence depends on degree of disclosure Overview closed proceedings - unique dependence of adjudicator on the executive o control over underlying record o potential for deceit/ error

90 o monopoly over dedicated expertise o lack of authority over foreign sources dynamic/ atmosphere of closed proceedings o courts lack of expertise o lopsided executive presence in hearing room o war of attrition in disclosure

Overview closed proceedings - in some contexts, especially criminal trials, secret evidence is considered irreparably unfair and is barred outright - in administrative law, closed proceedings may be permitted in highly exceptional circumstances, presumably because the impact on individual rights or interests is less serious - various procedural adaptation may be adopted in an effort to ameliorate the resulting unfairness e.g. contexts where closed proceedings are permitted for exceptional reasons: - applications for security warrants - access to information requests - government security clearances - seizure of assets of organized crime - listing of organizations as terrorist - security-based immigration decisions what about decisions that lead to deportation or to lengthy detention pending deportation? Chiarelli [1992] 1 SCR 711 (Can) - compliance with principles of fundamental justice - C was a permanent resident of Canada - based on RCMP information, a joint ministerial report was issued that C, if allowed to remain in Canada, will be involved in serious crime and should be deported - Immigration Act provides for review of the ministerial decision to deport by the Security Intelligence Review Committee (SIRC) o SIRC: adjudicative body that reviews CSIS conduct - SIRC may deny access by C to the evidence introduced against him - a summary of the evidence is provided to C, but excludes references to RCMP sources of information - FCC: the SIRC review process violates Charter s. 7and is not saved by s. 1 SCC (Sopinka J): - no violation of s. 7: the CSIS Act (establishing SIRC) and the SIRC Rules reach a reasonable balance between the individual and state interests - principles of fundamental justice were not offended by the use of this process - C had adequate notice and opportunity to reply: o C received a Statement of Circumstances giving rise to the joint ministerial report o before the hearing, C received an extensive summary of surveillance of his activities o after the hearing, C received a summary of the evidence notes: - C s lawyer not permitted in closed proceedings - SIRC role to balance disclosure vs non-disclosure - SIRC counsel reports to presiding commissioner of SIRC and makes submissions and cross examines witnesses of the government

91 SIRC counsel allowed to speak to C and his lawyer however could not disclose sensitive information role of SIRC was removed for deportation orders of foreign nationals and deportation of permanent residents responsibility shifts to Federal Court

Charkaoui No. 1 [2007] 1 SCR 350 (Can) - security certificates, issued by ministers, declaring a permanent resident or foreign national to be inadmissible to Canada on security grounds - individuals who pose a threat to the security of Canada - may lead to removal from Canada or to indefinite detention (or other restrictions on liberty) pending removal - certificates are reviewed for reasonableness by a Federal Court judge in closed proceedings o deferential standard of review - our focus: o are closed proceedings ever justified where s. 7 is engaged? o if so, in what circumstances? SCC: - life, liberty, security of the person engaged - the prospect of deportation/ detention engages interests protected by s. 7 - national security considerations may necessitate closed proceedings adequate substitutes to the procedures of open proceedings must be employed in order to accord with the principles of fundamental justice - the substitute procedure must provide meaningful and substantial protection of due process in order to satisfy s. 7 o Baker analysis leading to a general level of fairness (note) - here, the procedure for judicial review of security certificates did not conform with the principles of FJ because it failed to ensure a fair hearing, for three reasons (1) the procedure precludes a judicial decision based on all relevant facts and law a. right to reply is compromised because of the secret nature of the evidence (2) the procedure deprives the individual of the right to know the case to meet and to reply (3) the judge is not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring (para 64) FCJ judge in not a position to compensate for the absence of the individual as opposed to the process involving SIRC counsel in Chiarelli Chiarelli and Charkoui are not in conflict because they involve different models of decision making and the degree to which they offer substitutes for the absence of the individual SCC the violation of s. 7 is not justified under s. 1: alternatives exist to review of security certificates in closed proceedings by a judge alone, e.g.: o previous role of counsel to the Security Intelligence Review Committee (SIRC) o role of amicus curiae/ commission counsel at the Arar Inquiry  amicus does not report to commissioner who advises him of the national security confidentiality issues and an expert views of the o role of special advocates in the United Kingdom  protects the individual s interest

92 in response to Charkaoui, a system of special advocates was established for the security certificate review process (Bill C-3) we will discuss this alternative next class

 Administrative Law  Case study in procedural fairness:  closed proceedings & special advocates  Charkaoui No. 2 [2008] (SCC): disclosure of notes of CSIS interviews  Bill C-3 (2008): role of special advocates Overview closed proceedings  why may closed proceedings be unfair?  absence of the individual  no notice, no right of reply; adversarial principle is gutted  adjudicator is denied access to relevant facts/ argument  counsel/ special advocate cannot receive instructions  absence of the public  adjudicator is denied access to relevant facts/ argument  participants aware that there will be no public scrutiny  note that degree of absence depends on degree of disclosure  Overview closed proceedings  unique dependence of adjudicator on the executive  control over underlying record  potential for deceit/ error  monopoly over dedicated expertise  lack of authority over foreign sources  dynamic/ atmosphere of closed proceedings  courts lack of expertise  lopsided executive presence in hearing room  war of attrition in disclosure Charkaoui No. 2 [2008] 2 SCR 326 (Can) - demonstrates judicial dependency on executive in closed proceedings - C detained from May 2003 to Feb 2005 when Federal Court judge authorized his conditional release after fourth review of detention - prior to fourth review, government counsel revealed to judge that a document that should have been disclosed to C in May 2003 was not disclosed due to an oversight - document was a summary of CSIS interviews with C in 2002 Charkaoui No. 2 [2008] 2 SCR 326 (Can) - C requested disclosure of complete notes and recordings of the CSIS interviews - there were no recordings in the file and CSIS policy is to destroy notes of CSIS interviews once CSIS officers complete their reports o could not verify whether notes accurately reflect the report o report is then relied on by Ministers, and court in the issuance of a security certificate - C applied for stay of proceedings and requested that certificate be quashed - if you are investigating a specific person for a criminal investigation, police must disclose everything including exculpatory information - however investigative work by CSIS will not lead to the criminal prosecution of the individual - distinction between security intelligence and law enforcement - CSIS does not exercise the same coercive powers as police however they can get search warrants, surveillance and wire taping

93 SCC: blurred distinction in the context of the security certificate

CSIS breached its procedural fairness duty under the CSIS Act to retain and disclose information existing Charter s. 7 case law on disclosure and retention of information required CSIS to retain all information relating to security certificate investigations and to disclose it to relevant ministers and Federal Court judge require independent review of information

LeBel and Fish JJ.: - notes are a better source of information, and of evidence ; retention would make it easier to verify the disclosed summaries and information based on those notes (para 39) - earlier decision of SIRC cited report to SIRC by Foreign Affairs that was found to be inaccurate and misleading because CSIS information had been inaccurate and incomplete Charkaoui No. 2 [2008] 2 SCR 326 (Can) - although CSIS is not a police agency, it has a duty of disclosure going beyond mere summaries o duty of disclosure arising from principles of fundamental justice because of the severity of the consequences for the individual - CSIS had misinterpreted their own statute to destroy their records on the basis of protecting the privacy rights of the individual - security certificate proceedings are not criminal trials but procedural fairness under Charter s. 7 required a procedure for verifying the evidence adduced against [the individual] centring on review by the designated judge (para 56) Charkaoui No. 2 [2008] 2 SCR 326 (Can) ... If the original evidence was destroyed, the designated judge has access only to summaries prepared by the state, which means that it will be difficult, if not impossible to verify the allegations.... o dependence on the executive - As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in Mr. Charkaoui s position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. (para 61-62) o foreign source information; caveats attached to information given o to what extent does a threat justify the denial of procedural fairness and the detention of an individual o s 7 requires that if CSIS or any executive is collecting information that may lead to the detention of the individual they must retain that information and produce it to the ministers and court for review so they are properly informed Bill C-3 & special advocates - responds to decision in Charkaoui 1 o provisions of the IRPA that allow for security cert to lead to the detention based on closed proceeding before a judge alone is procedurally unfair, violates s 7 and not saved by section 1 - amendment to Immigration and Refugee Protection Act (security certificate provisions) adopted after Charkaoui No. 1 [2007] - royal assent 14 Feb 2008

94 security certificate is issued by two Ministers (Public Safety and Emergency Prep; Cit and Immigration) certificate declares a foreign national or permanent resident to be inadmissible to Canada on grounds of security, violating human or international rights, serious criminality, or organized crime (s. 77(1)) introduces special advocates who will protect the interest of the individual in the closed proceedings, full access to the confidential information and the ability to cross examine witnesses

Bill C-3 & special advocates - certificate is referred to Federal Court judge for determination of whether the certificate is reasonable (s. 77(1)) - Minister files with Federal Court information on which certificate is based and summary of that information - summary must enable the person to be reasonably informed of Minister s, but must exclude anything the disclosure of which would be injurious to national security (s. 77(2)) Bill C-3 & special advocates - during process of review of certificate, Ministers may issue a warrant for the arrest and detention of a person if they have reasonable grounds to believe the person is a danger to national security (s. 81) - Federal Court judge reviews the Minister s reasons for detention within 48 hours and at least once every six months until reasonableness of certificate is determined (s. 82(1) and (2)) Bill C-3 & special advocates - judge shall order detention if satisfied that release under conditions would be injurious to national security (s. 82(5)(a)) - otherwise, judge shall order release and set any conditions considered appropriate (s. 82(5)(b)) - Minister may order release from detention to permit departure from Canada (s. 82.4) Bill C-3 & special advocates - s. 83(1) proceedings to review certificates/ warrants: o judge may hear information in closed proceeding if of the opinion that disclosure would be injurious to natl security o judge shall ensure person receives summary of the information o judge shall provide person with opportunity to be heard o judge may base decision on information not in summary o judge shall not base decision on information that is not relevant or that is withdrawn by the Minister  executive has the option of withdrawing information in order to protect confidentiality interest  weighs interests of maintaining caveats vs the prosecution Bill C-3 & special advocates - judge may not hear information believed on reasonable grounds to have been obtained via torture or cruel treatment (s. 83(1.1)) - judge may refuse to appoint special advocate who is requested by the person only in case of: o unreasonable delay o conflict of interest o risk of inadvertent disclosure that would be injurious

95  cannot appoint SA to multiple cases where there is overlap

Bill C-3 & special advocates - s. 85, 85.1, and 85.2 special advocates: o Minister of Justice establishes a list of lawyers who may act as a special advocate o Minister of Justice shall ensure adequate administrative support and resources o role of special advocate is to protect the interests of the [person] in a closed proceeding on a certificate or warrant Bill C-3 & special advocates - special advocate may challenge Minister re: o claim that disclosure would be injurious o relevance, reliability and sufficiency of information - special advocate may: o make oral and written submissions o participate in closed proceedings; cross-examine witnesses o exercise, with the judge s authorization, any other powers necessary to protect the interest of the [person]  eg., authority to call a witness, interview a CSIS officer, access and review of information that was not disclosed Bill C-3 & special advocates - special advocate may not communicate with another person about the closed proceeding unless authorized by judge 24 special advocates as of 6 October 2009): - Ron Atkey, Jean-Paul Aubry, Colin Baxter, Donald Bayne, Norman Boxall, Gordon Cameron, Paul Cavalluzzo, Paul Copeland, Denis Couture, Franois Dadour, James Duggan, Jonathan Faulds, Brian Gover, Bernard Grenier, Anil Kapoor, Sylvain Lussier, Patrick McCann, Barbara McIsaac, John Norris, Murray Rankin, Leonard Shore, David Stratas, Lorne Waldman, Ivan Whitehall Canadian Bar Association submissions - allow special advocates to request that SIRC certify that full disclosure to the judge and special advocate has occurred - give special advocates the power to call witnesses - allow special advocates continuing access to the person - require an express balancing by the judge of interests in disclosure versus non-disclosure Recent revelation: Harkat security certificate case - detention and heavy conditions on release since 2002 based on information from secret source; source failed polygraph test in 2002 and 2008 (G&M 5 June 2009) - polygraph results not revealed to Federal Court and special advocates until summer of 2009 - CSIS senior counsel: The failure to include relevant information in the source matrix was inexcusable and is a matter of profound concern to the Service Recent revelation: Harkat security certificate case - Harkat s counsel: The polygraph results aren t just something that was sitting in a corner. They buried them both. From what has been supplied to us, it s hard to imagine that there is anything other than a deliberate choice to be less than full and frank with the court

96 Most of the evidence in this case has been destroyed, including all of the original notes and - sources My concern isn t limited to this one source. How do we know about the other sources? How can we trust the summaries prepared by CSIS?

Recent revelation: Harkat security certificate case - Noel J. re-calls three CSIS witnesses to testify in closed proceeding: - Noel J. concludes that the exceptional circumstances of the case require CSIS to reveal a source file: It is necessary to repair the damage done to the administrative of justice and to reestablish the necessary climate of trust and confidence which must be present in such an exceptional legal procedure. The Ricin Plot - police had raid an apartment and found evidence showing that ricin was being made and that there was a plan for destructive uses - PM Blair: Ricin Plot raid underscores dangers of WMDs, a danger that is present and real and with us now and its potential is huge (7 Jan 2003). - US Sec of State Colin Powell statement to UN Sec Council (5 Feb 2003): refers to UK poison cell as part of a terrorist network aided by Saddam Hussein; informs House Ctee on Intl Relations The ricin that is bouncing around Europe now originated in Iraq (12 Feb 2003). - following invasion of Iraq, US commanders report having destroyed a poison factory , and that it was from this site that people were trained and poisons were developed which migrated to Europe. We think that s probably where the ricin found in London came from. (31 March 2003). The Ricin Plot - initial positive test for ricin was, within days, confirmed as a false positive by Porton Downs laboratory - no trace of ricin or any other poison found on any materials seized from flat - materials seized included handwritten recipes for ricin; modest amounts of castor oil, cherry stones and apple seeds - equivalent poisons can be bought as rat poison or weed killer - false positive not disclosed publicly until two years after original arrests - scale of the threat was seriously exaggerated The Shooting of Jean Charles de Menezes - inaccurate information reported on the shooting: o he was wearing an unseasonably warm overcoat o he was wearing a padded belt with wires protruding from it o he looked Asian or Pakistani o he was aware he was being followed o twenty officers chased him into the station o he jumped over the ticket barrier and ran down an escalator o police challenged him but he refused to obey instructions o he looked like a cornered fox as he was hotly pursued o he half tripped and was then pushed to the floor of the train carriage by plain clothes officers The Shooting of Jean Charles de Menezes - information leaked from IPCC, 3.5 weeks after shooting: o he was not aware he was being followed, he was not wearing a padded jacket, he passed through the ticket barrier normally, and he did nothing to arouse suspicion

97 there was no police chase, he was restrained by an unarmed officer after taking a seat on train, just before he was shot o police officers who first identified him followed him, while awaiting armed officers, as he traveled through London and entered the tube o he was identified as suspect based on visual observation only without additional verification against photos of suspects; an officer who might have videotaped him could not switch on the camera because he was relieving himself at the time all of the video surveillance were not functioning at the time Menezes was shot o

Independence & impartiality - overview o component of procedural fairness - cases on institutional aspects: o Rgie des permis d alcool [1996] o Ocean Port Hotel [2001] o Bell Canada [2003] Independence & freedom from bias - second element of procedural fairness: o nemo judex in causa propria sua one should not be judge in one s own cause - both institutional and individual aspects of independence/ impartiality: o institutional: focus on structure of decision-making process o individual: focus on person(s) making the decision Independence & freedom from bias - general test = reasonable apprehension of bias [RAB Test] o The apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying themselves to the question and obtaining thereon the required information . (National Energy Board [1978]; cited in e.g. Baker [1999] at para 46). - re: institutional aspects of independence/ impartiality, the reasonable apprehension of bias must exist also in a substantial number of cases Independence & freedom from bias - content of the RAB standard will vary widely in different circumstances of administrative decision-making - also, the standard does not rise to the constitutionalized level of independence that is required for judges (e.g. security of tenure until a set retirement age, guaranteed salary, bars on outside remuneration) o security of tenure o financial security: state guarantees salary o institutional independence: court has to have control over institutional decision making, case management, Independence & freedom from bias - for both institutional and individual aspects, the concern is not simply with actual bias, but also with perceived bias - RAB test captures perceived bias - thus a court examines whether there is reason for the reasonable and right-minded person to apprehend bias on the part of the decision-maker or decision-making process

98 Independence & freedom from bias - for actual bias, the decision-maker would have to admit it in a reliable statement difficult to prove - possible sources of perceived bias: o direct or indirect connections between the adjudicator and a party or issue (e.g. a financial interest) o statements reflecting an attitude or predisposition on the part of the decision-maker (e.g. Baker) o involvement in an earlier stage of the decision-making process  NRB case: Marshall Crowe chair of the NRB was hearing a dispute to build a pipeline; had been on a committee to establish a pipeline Independence & freedom from bias - however, these possible sources of bias unlawful under the common law (on procedural fairness grounds) only if they violate the reasonable apprehension of bias standard - thus, one must construct a detailed argument, using the available facts, for why the RAB standard has or has not been satisfied Independence & freedom from bias - because we are speaking of the common law standard of independence/ impartiality, Parliament or a provincial legislature may overrule the requirement by statute, either explicitly or implicitly = a key difference between the independence of decision-makers in administrative law and that of judges in constitutional law - much greater flexibility in the administrative context Rgie des permis d alcool [1996] 3 SCR 919 (Que) - adjudicative body to review decisions to suspend liquor licenses - source: common law and Quebec Charter which require right to be adjudicated before an independent and impartial tribunal - challenge to independence of an investigative and adjudicative body in administrative law: o members appointed for two, three or five years o maximum term of five years o members may be dismissed for cause - do these institutional aspects reveal a reasonable apprehension of bias? SCC: -

fixed term appointments are acceptable for adjudicative tribunals however, removal of tribunal members must not be merely at pleasure of the executive here, members could be dismissed only for cause and could challenge their dismissal in court this satisfies the (common law) requirements of independence

Rgie des permis d alcool cont. on the other hand, the SCC finds a reasonable apprehension of bias in this case for other institutional reasons: - lawyers conducted investigation, made recommendations, took part in the adjudicative process and the final decision making process -

99 1. overlapping role of the Rgie lawyers (involvement both in prosecution and adjudication of cases) 2. overlapping role of the Rgie directors (involvement both in setting and deciding cases) ( refer to para 57-60) Ocean Port Hotel [2001] 2 SCR 781 - Regie used to argue that the alcohol license review body was not independent and impartial - decision of provincial Liquor Control and Licensing Branch to suspend liquor licence of Ocean Port Hotel in Squamish, BC - decision to suspend was taken, following a hearing, by a Senior Inspector of the Branch following an investigation by another Senior Inspector - appeal to Liquor Appeal Board led to a de novo (entirely new) hearing; decision was upheld Ocean Port Hotel cont. - decision of Liquor Appeal Board challenged on grounds that structure of Board did not satisfy common law requirement of independence - focus on lack of secure tenure for Board members: o appointed at pleasure  as opposed to dismissal for cause (Regie) o serve on a part-time basis o assigned to cases at the discretion of the Chair of the Board SCC: -

appointments structure and operation of the Board is authorized by statute o overrides common law requirements o under the common law, the structure would have been procedural unfair o statute was sufficiently clear and express to override the common law if statute were silent or ambiguous, the court would infer that Parliament intended to comply with the common law requirements of procedural fairness but here the statute is explicit: BC legislature clearly intended, by use of the term at pleasure , that Board members would not have tenure; this ousts the common law (para 25 and 27) courts will fill the omission of the legislature by reading in common law requirements of procedural fairness where the statute is vague or silent

SCC (para 27): It is easy to imagine more exacting safeguards of independence longer, fixed-term appointments; full-time appointments; a panel selection process for appointing members to panels instead of the Chair s discretion. However, in each case one must face the question: Is this what the legislature intended? o i.e. constitutional guarantees of independence apply to superior and provincial court judges but not to administrative tribunals Bell Canada v. CTEA [2003] 1 SCR 884 (Can) - challenge by Bell Canada to the independence and impartiality of the Canadian Human Rights Commission and Tribunal based on: 1. power of HR Commission to issue guidelines that bind a HR Tribunal 2. power of HR Tribunal Chair to extend Tribunal members terms in ongoing inquiries SCC:

100 para 25: would a well-informed person, viewing the matter realistically and practically, have a reasonable apprehension of bias in a substantial number of cases? NO on both issues o first, the power of the HR Commission to issue binding guidelines is limited to a class of cases  guidelines are not on how to decide on case by case basis  issue is consistency o Parliament may choose to give overlapping functions to the HR Commission  policy, investigative and adjudicative decision making functions

Bell Canada cont. - a HR Tribunal also has the power to find that guidelines issued by Commission are ultra vires the Commission . Given the many constraints on the Commission s guidelines power, and the many ways in which the Tribunal is empowered to question or set aside guidelines that are in violation of the law, it does not seem likely that the Commission s guidelines could improperly influence the Tribunal. - Parliament s choice was obviously that the Commission should exercise a delegated legislative function . (para 49-50) what sources was the court relying on for the procedural requirement of fairness? - Canadian Bill of Rights 2e - common law requirement satisfied: allows for overlapping functions - institutional structure was not procedurally unfair - overlapping role of the commission is permissible both under the Canadian Bill of Rights and the common law Bell Canada cont. - second, the power of the Tribunal Chair to extend appointments of Tribunal members meets the need for flexibility in ongoing cases - Tribunal Chair is best positioned to know that need and is somewhat distant from the Commission (para 52) given that members whose appointments have expired will not sit on another panel again, it is difficult to see what power the Chairperson could ultimately have over them, once their appointments have been extended . (para 54)

Arbitration - consensual dispute resolution - use of arbitration in consumer agreements - arbitration body may be too close to the industry in question - structure itself favours one party over the other - not suitable for public law disputes Independence & impartiality - cases on individual aspects: o Baker [1999] (SCR) o Chrtien v. Gomery [2008] (Fed Ct) o Sternberg [2009] (Ont Div Ct) Independence & freedom from bias

101 general test = reasonable apprehension of bias o The apprehension of bias must be a reasonable one, held by reasonable and rightminded people, applying themselves to the question and obtaining thereon the required information . (National Energy Board [1978]; cited in e.g. Baker [1999] at para 46)

Baker [1999] 2 SCR 817 (Can) - B applied to remain in Canada on humanitarian and compassionate grounds - application was denied by officer Caden on advice from (junior) officer Lorenz - SCC: Officer Lorenz s notes displayed a reasonable apprehension of bias on the part of the decision-maker Baker: notes of officer Lorenz PC is unemployed on Welfare. No income shown no assets. Has four Cdn.-born children four other children in Jamaica HAS A TOTAL OF EIGHT CHILDREN - Says only two children are in her direct custody. (No info on who has the other two). - There is nothing for her in Jamaica hasn t been there in a long time no longer close to her children there no jobs there she has no skills other than as a domestic children would suffer can t take them with her and can t leave them with anyone here. Says has suffered from a mental disorder since 81 is now an outpatient and is improving. If sent back will have a relapse. Baker: notes of officer Lorenz cont. - Letter from Children s Aid they say PC has been diagnosed as a paranoid schizophrenic children would suffer it returned - Letter of Aug. 93 from phychiatrist from Ont. Govm t. - Says PC had post-partum psychosis and had a brief episode of psychosis in Jan. when was 25 yrs. old. Is now an out-patient and is doing relatively well deportation would be an extremely stressful experience. - Lawyer says PC is sole caregiver and single parent of two Cdn. born children. PC s mental condition would suffer a setback if she is deported etc. Baker: notes of officer Lorenz cont. - This case is a catastrophy. It is also an indictment of our system that the client came as a visitor in Aug. 81, was not ordered deported until Dec. 92 and in APRIL 94 IS STILL HERE! - The PC is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity. However, because of the circumstances involved, there is a potential for adverse publicity. I recommend refusal but you may wish to clear this with someone at Region. - There is also a potential for violence see charge of assault with a weapon. notes -

notes filled with emotion, personal opinion, irrelevant factors prejudgment of an issue before you have heard relevant information that will arise from the process the process should be an opportunity to inform the decision maker considering things that inappropriately lead to the prejudgment of the matter inappropriate prejudgment: view on policy matters influenced how he resolved this case

102 o should evaluate case on the instructions and guidelines provided o irrelevant whether the system can afford to be generous whatever your personal, political views are need to be set aside in order to make a fair decision with the information before you children, mental illness, welfare His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Most unfortunate is the fact that they seem to make a link between Ms. Baker s mental illness, her training as a domestic worker, the fact that she has several children, and the conclusion that she would therefore be a strain on our social welfare system for the rest of her life.

Chrtien v. Gomery [2008] 2008 FC 802 - Sponsorship scandal: o statements made to the media that should not have been made by the commissioner of the inquiry - common law standard of impartiality and reasonable apprehension of bias - challenge by former PM, on grounds of bias, to commissioner s findings and conclusions in the Sponsorship Inquiry - argument primarily that commissioner s public statements during and after the Inquiry established a reasonable apprehension of bias (para 78) - decided by Federal Court judge based on common law standard of impartiality/ independence as applied to a commission of inquiry Teitelbaum J (Federal Court): - based on Baker factors, the required level of procedural fairness for an individual affected by a commission of inquiry is high : o Although the nature of the proceedings do not provide for the same level of procedural fairness required in a trial, the potential damage that the findings of the Commission could have on the reputations of the parties involved in the investigation was of such serious consequence that a high degree of fairness was required. (para 61) Teitelbaum J cont: reasonable apprehension of bias is a flexible standard when applied to administrative decisionmakers (see esp. para 73) - here, a reasonable apprehension of bias was established based on statements made by the Commissioner (para 80-7) RAB Test - did the decision maker have a closed mind - policy vs adjudicative spectrum Chrtien v. Gomery cont. - Gomery during inquiry: I m coming to the same conclusion as (Aud. Gen.) Sheila Fraser that this was a government program which was run in a catastrophically bad way. I haven t been astonished with what I m hearing, but it s dismaying. (para 82) o indicative of inappropriate prejudgment where not all the evidence has been heard on the issue - Teitelbaum J: the Commissioner was not in a position to conclude that the program was mismanaged before having heard from government officials of all levels who were set to testify. This is especially so given that the Commissioner ultimately concluded that the Sponsorship

103 Program was run out of the Prime Minister s Office under the direct supervision of Mr. Pelletier (a senior official who had yet to testify) (para 84) Chrtien v. Gomery cont. - Gomery after C s testimony: the very answer he gave me was the only answer that counted as far as I was concerned. So, with this answer, I had everything that I needed. - Teitelbaum J: Again, this comment was made before all the evidence had been heard . A reasonable, well-informed person, viewing this statement, would conclude that, instead of sitting as a dispassionate decision-maker presiding over the hearings with no pre-established ideas regarding the conclusions he would eventually reach after hearing all the evidence, the Commissioner had a plan or checklist of the evidence that was expected and which was required in order to support pre-determined conclusions. (para 86) Chrtien v. Gomery cont. - Gomery on upcoming evidence: the juicy stuff is yet to come. (para 87) - Teitelbaum J.: This comment trivialized the proceedings, which had enormous stakes for the witnesses involved in the proceedings, especially those who had yet to testify. It telegraphed to the public a prediction that evidence of wrongdoing was forthcoming . Whatever interpretation is given to this comment, the comment bears a pejorative connotation to which no witness ought to have been subjected. (para 88) Chrtien v. Gomery cont. - Gomery s media spokesperson Perreault after C s counsel sought an explanation for the commissioner s comments: People are saying in the e-mails, What s Chrtien got to hide? o Particular events sometimes boosted [the number of hits on the Commission s website], bringing a bonus flurry of e-mails. Each time we received a barrage of messages criticizing the reasons behind a motion or the attitude of a witness, or commenting on a shocking admission of guilt, media coverage reflected that reaction . o If I had to say what the gist [of the emails] was, I d say What is Jean Chrtien trying to do? - That remark won me a headline, an angry response from Jean Chrtien s lawyers, and a new wave of support. (para 90) Chrtien v. Gomery cont. - Teitelbaum J: o none of the e-mails ask What s Chrtien got to hide? or What is Jean Chrtien trying to do? and do not otherwise supports Mr. Perreault s statement. o Perreault s statement sent a message to the public that [C] was indeed trying to conceal something and that his motivation for bringing the Motion for Recusal (which he was legally permitted to do) was questionable. It damaged [C s] reputation by fostering suspicion of [C] and essentially raised doubts about his integrity. Again, I note that [C] had yet to appear before the Commission. Chrtien v. Gomery cont. - Gomery about C: It s such a disappointment that the Prime Minister would put his name on golf balls. That s really small-town cheap, you know, free golf balls. - Teitelbaum J: Not only was this remark a personal insult directed at [C] and his background, but it suggests that the Commissioner had come to the conclusion that the Applicant had acted improperly even before the Applicant appeared before the Commission to give his evidence. (para 93)

104 Chrtien v. Gomery cont. Gomery during inquiry (para 95): I don t think I am in danger of having prejudged an issue that I shouldn t have prejudged. I haven t made any judgments or prejudged any issue. I just made a comment on the personality of one of the witnesses. It s impossible not to like Chuck Guit. Let s face it, he s a charming scamp and he had his department mesmerized. He got himself promoted just before his retirement and thereby built up his pension. I m going to hear more about Mr. Guit. He will probably have to testify again. Chrtien v. Gomery cont. Gomery during inquiry (para 96): We have also seen over the last decades an increasing pressure for judges to come out of their ivory towers to establish some sort of a relationship with the media and to permit the media to have a better understanding of what it is that is taking place in the courtrooms or before commissions of inquiry of this kind. It was on the understanding of this evolution that led me to make -- to grant certain interviews at the end of the year. I was told by representatives of the media that there was a desire to know a little bit better what was going on and what could be expected. It was in that context that these press interviews were granted. Chrtien v. Gomery cont. Gomery s dismissal of C s Motion for Recusal against him: In the representations made before me , Mr. Scott declared : You have closed your mind . That statement was factually incorrect. I am the only person in the world who could know if I had closed my mind, and I said then, to reassure Mr. Scott and others, that my mind remained open. It is still open today and I repeat that I have not yet reached any final conclusion on any of the questions which the Inquiry calls upon me to decide. o actual vs perceived bias . my description of Mr. Guit and the characterization of him as a charming scamp , which is admittedly the kind of colourful language that judges should avoid using, does not in any way betray how I feel about his credibility. Sometimes charming people are credible and sometimes not. It is too soon to decide what weight I will give to Mr. Guit s testimony . [ ]. Chrtien v. Gomery cont. Teitelbaum J: I do not read that it is a function of a Commissioner to grant press interviews nor to express, during such an interview, an opinion as to what the evidence showed, and more particularly, to express that opinion before all of the evidence had been heard The Applicant was put in a position in which he was caused to appear before a Commission that had publicly questioned his conduct and integrity before he had even appeared before the Commission. (para 103) Sternberg v. Ontario Racing Commission [2008] Ont. Div. Ct. - decision of Ontario Racing Commission (ORC) to prohibit S from appearing as counsel before the ORC unless he apologized unconditionally to the ORC - S had verbally attacked the Chair of an ORC panel during a hearing - S claimed reasonable apprehension of bias on the part of the Commission

105

Sternberg cont. - S represented two licensees at the original ORC hearing; exchange with Chair Rod Seiling took place during S s cross-examination of a witness (see para. 5) - after the hearing, S received notice that the ORC would hold a hearing to review his conduct, indicating three potential responses.... o referral to Divisional Court for consideration for contempt o referral to Law Society for disciplinary action o disposition by ORC under its jurisdiction to control its own process under s. 23 of the SPPA - S s request to delay the hearing (to accommodate his schedule) was denied without reasons; S was able to attend Sternberg cont. - panel of six commissioners, not including Mr. Seiling, conducted the hearing - at the hearing, S apologized three times for his conduct - after the hearing, the panel rose for 8 minutes and then returned to read a 15-page preprepared set of reasons for its decision to prohibit S appearing as counsel, pending an apology Sternberg cont. - the reasons did not reflect S s remorse during the hearing - the reasons engaged in (silly) rhetorical flourish: o A cross-examination mired in repetition and degenerating into argument could precipitate inadequacy and frustration culminating in a certain petulance o No expression of apology made this day would serve to atone. The taint of expediency would be ingrained a facile response to circumstances of the moment Sternberg cont. - Div Court: panel pre-judged the issues arising at the hearing o the reasons were pre-prepared and detailed o two members of the panel had sat on the original panel chaired by Mr. Seiling o S was not allowed to make submissions on the penalty - as a result bias was displayed - already had decided the issue before they heard from S Sternberg cont. - ORC lacked jurisdiction under the SPPA to conduct the hearing and make the order against S; in effect, it was a contempt hearing reserved for Div Ct (SPPA, s. 13(1)) - no useful purpose in referring the matter back to the ORC - S s conduct now appropriately before the Law Society, having been referred by ORC counsel after the original hearing In class fact scenario Are there any issues of independence and impartiality?

the Minister s staff had received a complaint about Jill from Wayne, the owner of a large chemical sewage plant north of Oakville Frank is an outspoken proponent of suburban development in Oakville

106

suburban development priorities of Ontario outweigh the commercial interests in this case - not a factor however Frank is a former real estate partner of Wayne - Wayne: owner of a large bio- sewage plant in Oakville - association between decision making and whether the permit should be suspended - if suspended, former partner would benefit - association not disclosed
RAB Test Institutional

Standing - which person has a legal right to seek judicial review of a decision - consider the relevant statute: Judicial Review Procedure Act; Federal Court Act; Public Inquiries Act - s (5) 1 of Public Inquiries Act o substantial and direct interest in the subject matter of its inquiry o opportunity to give evidence call and cross examine witnesses personally or by counsel on evidence relevant to the person s interest - could seek judicial review if standing is refused - where an individual or organization does not have a personal and direct interest, are there cases where a court should grant public interest standing ? - Finlay [1986] - Canadian Council of Churches [1992] Standing - traditionally, the common law limited standing in judicial review to individuals whose private rights (i.e. contract, tort, property) were directly affected by a government action or decision o direct interest: financial, property, eligibility for benefits or permit, reputational - no standing was afforded where the public interest alone was at stake (e.g. re: legality of administrative action) discretion of Attorney General alone whether to seek judicial review - if there was a public interest and the person seeking standing does not have a direct interest, that person could go to the AG to request standing Standing - government accountability mechanisms other than Attorney General/ judicial review? o legislative oversight: questions in the House, legislative committees that can compel witnesses to testify in public under oath, investigations by MPs or MPPs o external executive oversight: police investigation/ prosecution, independent audits, review by the ombudsman, public inquiries Standing - internal executive oversight: investigations by an investigator authorized by the minister or other senior officials, employment disciplines, cultural checks in the workplace/ profession - extra-governmental oversight: media, lobby organizations, civil society - i.e. courts are not the only places where government decisions can be reviewed in the public interest

107 Standing - expansion of participatory rights in public law begins in the US in the 1940s; later it expands in Canada, especially post-Charter - why allow broader participatory rights in judicial review? why limit such rights? - debate over standing is a debate over the appropriate role of courts in decision-making - should trees have standing? (C. Stone, 1973) Standing - in favour of broad standing rules: judicial review is a unique means of accountability - against: ? - courts often express these concerns: (1) floodgates and the impact on an overburdened court system; busybody claimants; (2) impact on conventional framework of adversarial litigation; - public interest standing does not have a self-interest - more focused discussion of the issues in dispute (3) politicization of courts and danger that only those already well-positioned to defend their interests in the public realm will benefit from wider legal access to the courts Finlay [1986] 2 SCR 607 (Can) - trilogy of cases that extend public interest standing in the context of a constitutional challenge o principles from these decisions are carried into the context of administrative law - F challenged the legality of federal transfer payments to Manitoba under the Canada Assistance Plan - F alleged that compliance by Manitoba with its CAP obligations would have produced a higher level of social assistance for F - Manitoba CA granted standing to F to seek declaratory relief Finlay cont. - SCC (Le Dain J): does F have a sufficient personal interest to be granted standing to bring a judicial review against the federal government? o F alleged that Canada s failure to require Manitoba to meet its CAP obligations reduced F s monthly payment o government of Canada s response: insufficient nexus between harm suffered by F and the government decision which is under challenge  whether the inaction in enforcing the CAP caused the harm suffered by F SCC (Le Dain J) cont.: - F has a direct, personal interest in the alleged provincial non-compliance , but I am on balance of the view that the relationship between the prejudice allegedly caused to the respondent by the provincial non-compliance with the conditions and undertakings imposed by the Plan and the alleged illegality of the federal payments is too indirect, remote or speculative to be a sufficient causative relationship for standing under the general rule. (Edited case p 6) Finlay cont. - does the Court have the discretion to recognize public interest standing re: challenge to the legality of the federal transfer program? o yes: the policy considerations underlying judicial attitudes to public interest standing and values assigned to the public interest in the maintenance of respect for the limits of administrative authority call for public interest standing as in constitutional cases

108 o o AG should not have exclusive authority to grant standing in the public interest transfers the authority to grant public interest standing from the AG to the courts

Finlay cont. - three requirements for public interest standing: o must be a serious issue raised here, yes  addresses busybody concern; court resources should be allocated to serious issues o must be a genuine interest on the part of the citizen here, yes o must be no other reasonable and effective manner to bring the issue before a court Here is it quite clear from the nature of the legislation in issue that there could be no one with a more direct interest than the plaintiff who would be likely to challenge the legislation. (Edited case p 10) Canadian Council of Churches v. Canada [1992] 1 SCR 236 (Can) - federal corporation/Council coordinated churches refugee work/ advocacy - Council challenged newly amended Immigration Act, claiming violation of Charter and Bill of Rights - argument that it should be given public interest standing fails on the third step of the test ie., other reasonable alternative to bring the issue before the court Council of Churches cont. - Fed Court judge granted standing on basis that there was no reasonable, effective or practical manner for the class of persons more directly affected by the legislation, that is refugees, to bring before the court the constitutional issues raised . - wouldn t have time to bring forth a Charter challenge because of the time sensitive nature of the refugee context - Fed CA limited standing to four provisions involving short time limits for detention/ removal Council of Churches cont. - SCC widens its approach to granting standing in administrative proceedings Cory J: The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. (p 21) - as opposed to the purpose of protecting private interests

Cory J considers three issues: - some aspects could be said to raise a serious issue of validity - there is no doubt that the Council has a genuine interest - third requirement: however, the legislation directly affects all refugees (each one of could challenge its constitutionality) and the disadvantages of refugees as a group do not preclude effective access to the courts o where a refugee has a decision for deportation, could challenge the decision by judicial review - so, the Council not entitled to public interest standing Remedies - McKinnon [2002] (Ont HR Board of Inquiry)

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Availability of judicial review - Harelkin [1979] (SCC) Remedies - recall the primary remedies: certiorari; prohibition; mandamus (discussed in first week) o these originate in the common law prerogative writs o habeus corpus: show me the body o quo warranto: demand that the decision maker has the authority to decide on something - certiorari: power of the court to request the file of the decision maker to review and to decide whether the file is unlawful and the power to quash the decision - mandamus: order the decision maker to do something - other public law remedies e.g. declaratory relief and injunctions against the Crown originate in the law of equity - injunctions o similar to prohibition and mandamus o must show that you have a private interest at stake - declaration o temporary short term measure in the course of a long dispute - today, all are judicial review remedies generally available to the courts, whether based on the court s inherent jurisdiction or its governing statute Remedies - at common law, the courts have a wide discretion whether to award and how craft an appropriate remedy - common outcomes on judicial review: o uphold or restore the decision (e.g. Southam; Ryan) o quash the decision (Gomery; Sternberg) o refer the decision back to the decision-maker for reconsideration (e.g. Nicholson; Baker) o substitute court s view (Dunsmuir; Mount Sinai) Statutory remedies - judicial remedies (where inherent under the common law) are subject to statute - judicial remedies may also be authorized/ codified/ limited by general statute: o Judicial Review Procedure Act, R.S.O. 1990, c. J-1 o Federal Courts Act, R.S.C. 1985, c. F-7 - tribunal remedies are authorized by and subject to the parent statute (never by the common law) - no common law statute to award remedies; remedy must be derived from statute - what authority does a statute give a tribunal to order a remedy e.g. Judicial Review Procedure Act, R.S.O. 1990, c. J-1 2. (1) On an application by way of originating notice the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. codification of the common law writs

110 2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. - equitable remedies codified e.g. Federal Courts Act, R.S.C. 1985, c. F-7 18.1 (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. McKinnon [2002] (Ont HR Board of Inquiry) - e.g. of tribunal remedy (pursuant to statute) in an ongoing/ systemic dispute - HR adjudicator attempting to craft a remedy that addresses entrenched racism in a work environment - M was an employee of the Ontario Ministry of Correctional Services - M brought human rights complaints against the Ministry for racist behaviour at the Toronto East Detention Centre McKinnon cont. - Board adjudicator upheld original complaint by M - ordered, among other things, that the Ministry address its poisoned atmosphere via anti-racism training - three years later, the Board adjudicator revisited the order and found the Ministry had not complied fully: the atmosphere remained substantially unchanged throughout the Ministry and racist behaviour had simply gone underground McKinnon cont. 45.2 (1) the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application: 1. An order directing the party who infringed the right to pay monetary compensation to the party for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect. 2. An order directing the party who infringed the right to make restitution to the party for loss arising out of the infringement, including restitution for injury to dignity, feelings and selfrespect. 3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act . McKinnon cont. current statutory provisions 45.2 (2) For greater certainty, an order under paragraph 3 of subsection (1), (a) may direct a person to do anything with respect to future practices; and

111 (b) may be made even if no order under that paragraph was requested . 45.3 (1) If the Tribunal determines that any one or more of the parties to the application have infringed a right under Part I, the Tribunal may make an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act . McKinnon cont. - adjudicator revised the original order by ordering the Ministry to comply with a series of recommendations made by an outside expert (the Devlin Report) - i.e. the adjudicative remedy was constructed from wide-ranging recommendations to change Ministry management and staffing, training programs, and investigate and monitor discriminatory/ harassing behaviour - is this appropriate or feasible? Harelkin v. U of Regina [1979] 2 SCR 561 (Sask) - H, a student, was forced to withdraw from faculty of social work - H s appeal to university committee was dismissed without any hearing (i.e. denying him procedural fairness) - H applied to court for certiorari and mandamus, rather than pursuing appeal to university senate committee - was H required to exhaust the university s internal remedies before seeking judicial review? SCC majority (Beetz J): - certiorari and mandamus are discretionary remedies; need to evaluate whether the alternative remedies were adequate : o procedure on appeal to University Senate: H should have assumed the integrity of the process o powers and composition of appeal committee more likely to be a re-hearing than a limited appeal = an adequate remedy Harelkin cont. - moreover, the alternative remedy is more convenient: o time and money needlessly lost on external review re: the procedural adequacy of the internal process o The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right (text p 1264) Harelkin cont. - legislative intent - the statute gives preference to a university s internal process to correct its own errors, consonantly with the traditional autonomy of universities, as well as with expeditiousness and low cost for the public and the members of the university (text p 1265) - so, if internal remedies are reasonably available, they should be pursued prior to seeking judicial review SCC minority (Dickson J): the university s alternative remedy was inadequate: - nature of the error denial of procedural fairness o taints the decision as a whole

112 nature of the alternative remedy a simple appeal (rather than a re-hearing) is inadequate to rectify the denial of procedural fairness since there was no decision making record, would not hear from witnesses again de novo hearing not held blame the legislation [not the court!] for the inconvenience caused by requiring two separate internal hearings

Question 1: Standard of Review issues - strong full privative clause: not reviewable in any court, final and conclusive - commission: complaint was well found and set up a tribunal - tribunal: upheld the complaint of serious harassment o mixed fact and law  factual issue are intertwined within the legal test  reasonableness o was there harassment, was it serious o Discretionary: did the legislature convey that this was a discretionary decision of the tribunal  in the opinion of y high discretion  deemed by the Tribunal to be sufficiently serious y whether the harassment is sufficiently serious y discretion which goes to the remedial aspect of the decision y should be discussed in nature of the question y if discretionary reasonableness Question 2: Procedural Fairness issues - RAB: head of tribunal is a vocal advocate for victims of harassment - Tribunal must hold a hearing (SPPA), however Commission does not have to hold a hearing - general or non-dispositive decision o threshold issue o common law source o whether there is a duty of fairness under the common law for the Commission - what was the decision that effected Rick - what were his individual interests - Which arguments are likely to be successful Substantive Decision - what was the decision? Decision of the Commission that complaint was well founded and should be referred to Tribunal s 11; Decision of the Tribunal to uphold complaint s 13 - nature of the question: not simply factual or legal; not constitutional or jurisdictional - not of central importance of the legal system and outside of the decision maker s specialized area of expertise o definition of harassment may be important o human rights issue which may be of central importance o however this is application of harassment to Eric - mixed fact and law: cannot be easily separated (Dunmuir) - element of discretion s 13

113 presumptively reasonableness

Do any of the factors weight against this - privative clause deference s 14 - expertise lies in specialized areas of law o labour, constitutional and administrative law o majority of tribunal comes from workplace environment s 11 o can be assumed to have experience in adjudication of complaints based on legal expertise s 13 - terms and purpose of statute: mixed educational, policy-making and adjudicative role of Commission s 10-11; requirement for legal experience and experience of Commission roster members indicates purpose; aim to eliminate harassment by adjudication before the Tribunal, not the courts - other factors reinforce presumption of deference - = reasonableness (assuming no persuasive earlier decision re: appropriate standard) Application of the Standard - does the decision fall within a range of possible acceptable outcomes which are defensible in respect of the facts and law - intelligibility, transparency, justification - focus on rationale/evidence before the Tribunal; court will not substitute its own view - Tribunal does not appear to refer to a definition of harassment or analyze past decisions or indicate the basis for propriety of Jo-Ann s request for a security assessment - decision was heavily fact laden inquiry into the rationale for Jo-Ann s decision making and into Jo-Ann and Rick s conduct in the workplace - Tribunal better able to assess credibility of Rick s evidence, having heard all the oral evidence - assuming there was an evidentiary basis for the Tribunal s factual findings, decision very likely to be found reasonable (as in Dr Q) Procedural Fairness Threshold - distinguish Commission from Tribunal - Sources: Charter, Statute (Parent Statute, SPPA), Common Law, Secondary Legislation, Rules of Procedure o s 7 not at issue - re Commission: SPPA does not apply because parent statute locates hearing requirement with Tribunal - statute indicates legislative intent to ensure fairness via a fair hearing before Tribunal s 13; Commission s role is to determine whether complaint is well-founded s 11 - there is a discretionary power of the Commission to hold a hearing o deference to common law rule o in some case fairness may be required - Commission s decision to refer complaint to Tribunal affected Rick because his conduct would likely be subject to adjudicative review, with possible implications for his reputation/employment interests - Commission also has discretion to hold a hearing for non-dispositive decisions s 15, indicating some concern by legislative that fairness is relevant at the Commission state - on this basis, the commission owes Rick a duty of the fairness under the common law however the content of the duty will be much lower than that of the Tribunal

114 eg, Commission may be required to give notice of investigation, meet with Rick, provide written explanation for decision (Baker; Nicholson) but would not require an oral hearing or even a fair hearing in all cases

SPPA applies to Tribunal: - Tribunal is exercising a statutory power of decision that affects Rick s legal interests (employment; reputation) SPPA s 1 - the parent statute requires a fair hearing s 13; sppa 3(1) - the decision maker is not exempt (sppa 3(2) under the common law, the Tribunal owed a duty of procedural fairness: - stat requirement for a fair hearing; requirement for legal expertise of presiding member s12 - clear implications for Rick s reputation and employment interest - not a decision of a legislative or general nature (Inuit Tapirisat); decision is limited to one person or a small group of persons General Content - procedural fairness entails the right to notice and reply (Nicholson, Cardinal, Baker) - Baker factors re: general level of fairness: o first, the Tribunal s decision affects Rick s interest, the statute calls for a fair hearing, tribunal role to adjudicate complaints (judicial end of the spectrum), presiding member must have legal expertise but the tribunal may not make findings of criminal or civil liability o second, there is no appeal beyond the tribunal even on questions of law finality calls for a high level of scrutiny (Baker) o third, reputation and employment interest is important to Rick (Nicholson, Blood Inquiry, Dunsmuir) but does not engage a higher interest such as life, liberty, SOTP; must be balanced against the wider interest in ensuring a harassment-free workplace  if s 7 interest, adjust principle of fundamental justice accordingly and balance interest in s 1 analysis o fourth, legitimate expectations  no express promise at any time by Commission or Tribunal  at best, may argue that terms of the statute (requirement of fair hearing), supplemented by rules of procedures of Tribunal may create an expectation of greater notice and reply for Rick, but not a strong argument re: legitimate expectations  legitimate expectation may lead to higher duty of procedural fairness however not affect substantial outcomes (Mount Sinai) o fifth, presiding member of Tribunal with legal expertise may be entitled to procedural deference, supplemented by s 25.1 of SPPA  Tribunal can pass its own rules of procedure o Thus, general level of fairness at the Tribunal is moderate to high (balancing the antiharrassment objectives and procedural deference against R s interest as an individual, the finality of the adjudicative process and the requirement for a fair hearing (summary based on discussion of 5 factors) - could mention if there would be any difference for the commission Procedural Fairness Specific Content - source: SPPA, cases (VIA rail, Blood Inquiry) o notice and reply

115 o duty to give reasons o participatory rights of counsel notice and reply (commission) o as a coworker of Eric, Rick was interviewed by the investigator and received a copy of the investigator s report o Rick opted to testify without counsel o on this basis, Rick likely received sufficient notice and an opportunity to reply to the decision to refer to a Tribunal notice and reply (tribunal): o Rick received investigator s report which presumably indicated underlying basis for hearing o but Rick was not a subject of Eric s complaint and was only notified of allegations against him after the oral hearing o in absence of reasonable information of any allegations (s 8 SPPA), Rick may have properly assumed he was simply a witness, with the corresponding limits on his level of participation and jeopardy (s 11(1) SPPA) Rick s decision not to be represented by counsel was made prior to the written notice to him from the Tribunal SPPA provides a more elaborate right to counsel for a party (s 10) than a witness s 11 opportunity to respond in writing unlikely to cure harm caused by earlier testimony without advice from counsel Rick was denied opportunity to make informed comment on Tribunal s decision not to hear confidential evidence on secure software (and to make arguments under SPPA 9(1)) and where s 9 of the Security Act); concerns about Eric were specifically software security concerns no evidence that Tribunal considered the option of partial disclosure or other procedural adaptation (Chiarelli; Charkaoui 1) o confidential information can be heard by a Tribunal; alternate options available but not Rick s strongest argument assume Tribunal has wide discretion regarding evidence it hears and how non-disclosure of in house legal opinion may be based on solicitor-client privilege (Pritchard); no elaboration on basis for privilege claim by Tribunal, but Rick did have opportunity to request in writing that non-privileged information be disclosed two-day generally sufficient to allow reasonable opportunity to be heard (ie where Rick s credibility is at stake as in Khan), but Rick should be able to testify and to suggest evidence based on knowledge of the allegations against him (s 6 of SPPA) duty to give reasons (on request) appears to have been met (s 17(1) SPPA Rick s strongest argument is that the statute requires a fair hearing and that hearing him without prior notice of allegations against him precluded him from replying effectively and violated s 8 SPPA how can Rick reply in writing, after the oral hearing, on issues of credibility raised in testimony without prior notice of allegations gotcha by the Tribunal

Procedural Fairness Bias - renewable appointments to commission roster, removable only for cause, is consistent with common law requirements (Regie, Bell Canada) and statutorily authorized (Ocean Port); case by case appointments of non-presiding members is statutorily authorized in clear and express terms (Ocean Port) institutional - impartiality and independence are flexible concepts for administration tribunals; provision here for presiding member to have legal expertise weighs against concerns - thus, no basis to argue RAB (in a substantial number of cases) on institutional grounds

116 fact that presiding Tribunal member is advocate for victims of harassments and presumably against closed proceedings suggests a RAB on individual grounds - perception may arise that Tribunal member has pre-judged issues in favour of complainants where it may contradict complaints - requirement for legal expertise indicates legislative intent that Tribunal decide neutrally and objectively based on the evidence - key that statements made after appointment, when commission roster member is advised not to speak on matters over which he or she may have to adjudicate in individual cases (Gomery) - troubling that this was presiding member of Tribunal (although decision was unanimous) - Rick ahs a reasonably strong argument that there was an RAB on individual grounds Procedural fairness likely to succeed - best argument is that lack of notice of allegations against Rick precluded an effective reply, especially in terms of his decision whether to seek counsel before testifying - Rick (and possibly other witnesses) should have been recalled by Tribunal - RAB argument is also strong - other arguments (notice from Commission, decision not to hear confidential evidence, nondisclosure of legal opinion, and reasons are unlikely to succeed - court would likely refer back for re-determination by a separately constituted Tribunal Canadian Bill of Rights - 1a, 2e Knight - little applicability Polycentric/discretion - discussed in nature of the question Martin - whether a tribunal has the authority to decide on the Charter o if it has the authority to decide on questions of law yes o has it been expressly been removed by statute -