CONTENTIEUX ADMINISTRATIFSProf. PlessSummary Fall 2017Alexandra Ghelerter

I. FOUNDATIONS.................................................................................................................................................2A. INTRODUCTION.........................................................................................................................................................2B. CONSTITUTIONAL BASES OF JUDICIAL REVIEW........................................................................................................3

Roncarelli v. Duplessis, SCC [1959]............................................................................................................................4National Bank of Canada v. Retail Clerks’ Union, SCC [1984]..................................................................................4Smith v. Canada (AG), FC [2009]...............................................................................................................................4Crevier v. Quebec, SCC [1981]...................................................................................................................................5

C. RULE OF LAW AND JUDICIAL REVIEW......................................................................................................................6Trial Lawyers Association of British Columbia v. British Columbia, SCC [2014].......................................................7British Columbia v. Christie, SCC [2007]....................................................................................................................7

D. RULE OF THE LAW AND THE FINALITY OF ADMINISTRATIVE DECISIONS..................................................................7Danyluk v. Ainsworth Technologies Inc., SCC [2001].................................................................................................9British Columbia (Workers’ Compensation Board) v. Figliola, SCC [20011].............................................................9Toronto v. C. U. P. E. Local 79, SCC [2003].............................................................................................................11

E. ACCESS TO JUDICIAL REVIEW.................................................................................................................................11F. BUILDING A CASE FOR JUDICIAL REVIEW AND RULE 317......................................................................................12

Canada (Human Rights Commission) v. Pathak, FC [1995].....................................................................................13Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), FC [2006]...................................................................................................................................................................................14

II. JUDICIAL REVIEW OF PROCEDURAL FAIRNESS...................................................................................14A. SOURCES AND LIMITS OF THE DUTY OF PROCEDURAL FAIRNESS...........................................................................15

Canada (Minister of Manpower and Immigration) v. Hardayal, SCC [1997]............................................................15Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, SCC [1978].....................................................16Knight v. Indian Head School Division No. 19, SCC [1990]......................................................................................16Air Canada v. Canada (AG), QCCA [2003]..............................................................................................................17Authorson v. Canada (AG), SCC [2003]....................................................................................................................18Ocean Port Hotel v. British Columbia, SCC [2001]..................................................................................................19Canada (AG) v. Inuit Tapirisat, SCC [1980].............................................................................................................19Reference Re Canada Assistance Plan (British Columbia), SCC [1991]...................................................................20

B. CONTENT OF THE DUTY OF PROCEDURAL FAIRNESS..............................................................................................21Baker v. Canada (Minister of Citizenship and Immigration), SCC [1999].................................................................23Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), SCC [1992]............24

C. SECTION 7 OF THE CHARTER AND THE PRINCIPALS OF FUNDAMENTAL JUSTICE.....................................................25Singh v. Minister of Employment and Immigration, SCC [1985]...............................................................................26Suresh v. Canada, SCC [2002]..................................................................................................................................26Charkaoui v. Canada (Citizenship and Immigration), SCC [2007]...........................................................................27

D. TRANSITION............................................................................................................................................................27Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasure Council), SCC [2011].......28

III. JUDICIAL REVIEW ON THE MERITS.....................................................................................................28A. THE STANDARD OF REVIEW: INTRODUCTION AND HISTORY..................................................................................28

C.U.P.E. v. New Brunswick Liquor Board Corporation, SCC [1979]........................................................................28U.E.S. Local 298 v. Bibeault, SCC [1988].................................................................................................................29Canada (Director of Investigation and Research) v. Southam Inc., SCC [1997].......................................................30Pushpanathan v. Canada (Minister of Immigration and Citizenship), SCC [1998]...................................................31Law Society of New Brunswick v. Ryan, SCC [2003].................................................................................................32Toronto v. C.U.P.E. Section 79, SCC [2003].............................................................................................................33

1

Dunsmuir v. New Brunswick, SCC [2008].................................................................................................................33B. CHOOSING THE STANDARD OF REVIEW: CURRENT STATE OF THE LAW.................................................................35

McLean v. British Columbia (Securities Commission), SCC [2013]..........................................................................35Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, SCC [2011]............................36Alberta (Information and Privacy Commissioner) v. University of Calgary, SCC [2016].........................................37Edmonton (City) c. Edmonton East (Capilano) Shopping Centres Ltd., SCC [2016].................................................37Canada (Minister of Citizenship and Immigration) v. Khosa, SCC [2009]................................................................38

C. CHOOSING THE STANDARD OF REVIEW: FURTHER CONSIDERATIONS.....................................................................39Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, SCC [2011]........39Canada (Fisheries and Oceans) v. David Suzuki Foundation, FCA [2012]...............................................................39Pfizer Canada Inc. v. Health Canada, FC [2014]......................................................................................................40Mouvement laïque québécois v. Saguenay (City), SCC [2015]..................................................................................40Domtar Inc. v. Quebec, SCC [1993]..........................................................................................................................41

D. APPLYING THE REASONABLENESS STANDARD........................................................................................................42Canada (AG) v. Abraham, FCA [2012].....................................................................................................................43Dunsmuir v. New Brunswick, SCC [2008].................................................................................................................44Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, SCC [2011]............................45Canada (Minister of Citizenship and Immigration) v. Khosa, SCC [2009]................................................................46

E. REASONABLENESS STANDARD: FURTHER CONSIDERATIONS..................................................................................47Law Society of New Brunswick v. Ryan, SCC [2003].................................................................................................47Singh v. Canada (Citizenship and Immigration, FC [2010].......................................................................................47Mouvement laïque québécois v. Saguenay (City), SCC [2015]..................................................................................47VIA Rail Canada Inc. v. National Transportation Agency, FCA [2011]....................................................................48

F. REASONABLENESS STANDARD AND DISCRETIONARY DECISIONS...........................................................................48Roncarelli v. Duplessis, SCC [1959]..........................................................................................................................49Baker v. Canada (Minister of Citizenship and Immigration), SCC [1999].................................................................50Canada (Minister of Citizenship and Immigration) v. Khosa, SCC [2009]................................................................51Suresh v. Canada (SCC [2002]..................................................................................................................................51

G. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS AFFECTING CHARTER RIGHTS.................................................52Slaight Communications Inc. v. Davidson, SCC [1989].............................................................................................52Multani v. Commission scolaire Marguerite-Bourgeoys, SCC [2006].......................................................................54Little Sisters Book and Art Emporium v. Canada, SCC [2007]..................................................................................55Lake v. Canada (Minister of Justice), SCC [2008].....................................................................................................55Doré v. Barreau du Québec, SCC [2012]..................................................................................................................56Loyola High School v. Quebec, SCC [2015]..............................................................................................................58Trinity Western University v. The Law Society of British Columbia, BCCA [2016]...................................................59

IV. LIABILITY AND IMMUNITY FOR ADMINISTRATIVE ACTIONS.......................................................59Grenier v. Canada (AG), FCA [2005]........................................................................................................................60TeleZone v. Canada, SCC [2010]..............................................................................................................................61Montambault v. Hopital Maisonneuve Rosement, QCCA [2001]...............................................................................61Canadian Food and Protection Agency v. Professional Institute of the Public Service of Canada, SCC [2010].......62R. v. Imperial Tobacco Canada Ltd., SCC [2005].....................................................................................................63Hinse v. Canada, SCC [2015]....................................................................................................................................64

2

I. Foundations

A. Introduction

What is JRAA?

“Le pouvoir de contrôle et de surveillance des cours supérieures est un contrôle de la conformité à la loi de l'action administrative qui vise à « assurer la légalité, la rationalité et l'équité du processus administratif et de la décision rendue ». Conséquemment, le contrôle judiciaire est une branche de l'interprétation des lois qui consiste à déterminer quels sont les pouvoirs que le législateur a confiés à l'entité administrative, quelle déférence les cours supérieures doivent accorder à l'entité et si la décision prise est soit la bonne décision (norme de la décision correcte), soit une des décisions qu'elle pouvait prendre compte tenu des faits et du droit (norme de la décision raisonnable) et si le processus décisionnel a respecté les principes de justice naturelle. Autrement dit, le contrôle judiciaire participe à la souveraineté parlementaire puisqu'il vise à s'assurer que les entités administratives qui appliquent une loi ont respecté les choix du législateur. ” (JuriClasseur).

The central theme of this course is administrative decisions, that is, decisions that are made by government actors. There are two main aspects of this theme that must be kept in mind throughout the course:

(1) Procedural Fairness, which is relates to the rights of the person or entity subject to the administrative decision. As a general rule, where an administrative decision affects the rights or interests of a party or entity, that party or entity has the right to a certain standard of procedural fairness, this generally implies a certain level of participation in the process. Note that the majority of administrative decisions which are subject to judicial review are quashed because the government failed to meet its duty to ensure procedural fairness. For that reason, it is important to understand both the source and content of this right.

(2) Merits, in the sense that although an administrative decision may not be impugned grounds of a lack of procedural fairness, it may yet be challenged on its merits. Here we are concerned with the standard of review. The standard of review will either be correctness or reasonableness, although there is a presumption that the applicable standard will be reasonableness .

There are theoretical, constitutional bases underlying administrative review.

Rule of law, which is the notion that government actions must be permitted by law . There is no such thing as unfettered, unlimited discretion for the government to act as it pleases per Roncarelli. Rule of law acts as a bulwark against arbitrariness in the execution of public power .

Parliamentary sovereignty, which refers to the fact that Parliament is bound to enact law only insofar as they respect the jurisdiction granted to it under the Constitution and which are not in violation of the Charter. Beyond these constraints, the government is free to enact the legislation it deems appropriate.

Principle of legality, which is the notion that members of the executive are entitled only to do what it is permitted for them to do by law.

Inherent jurisdiction, which refers to the inherent power of Canadian superior courts constituted under S. 96 of the Constitution as the ultimate arbiter over Parliament’s exercise of its jurisdiction .

Finality of administrative decisions, which is a principle recognized by Canadian courts.

There is a constant tension between the rule of law and the separation of powers in the context of administrative review. Administrative review itself is rooted in the principal of rule of law. But, because the majority of administrative decisions are not specifically permitted by law, decisions are often made case-by-case. Therefore, courts have a

3

constitutional obligation to ensure that administrative decisions are made in conformity with the law. Yet, courts cannot make law and also cannot make decisions in the stead of administrative decision-makers.

B. Constitutional Bases of Judicial Review

The rule of law demands that all government actions be permitted by law, or permissible under the Constitution. Per Roncarelli, there is no such thing as unfettered discretion. The only exception to this is government powers under POGG (although few POGG powers still exist today). From Administrative Law (Wade) cited in Black v. Canada (Prime Minister) at the ONCA: “In the course of constitutional history, the Crown’s prerogative powers have been stripped away and for administrative purposes the prerogative is now a much-attenuated remnant. Numerous statutes have expressly restricted it, and even where a statute merely overlaps it the doctrine is that the prerogative goes into abeyance.”

So, you have rule of law per Roncarelli, with POGG powers as the only exemption to this fundamental principle, as illustrated in National Bank and Smith. However, note that Pless thinks that the decisions in both latter cases are incorrect.

Roncarelli v. Duplessis, SCC [1959]

Roncarelli was the proprietor of a restaurant which held a liquor license. He was also a member of the Jehovah’s Witnesses. At the time, Jehovah’s Witnesses were routinely fined for the distribution of print materials, and Roncarelli acted as a surety for members when they were arrested, allowing them to be released pending a determination of the charges against them.

When Roncarelli reapplied for his liquor license, his license was revoked and he was informed that he would never again be issued a license. It later was revealed that the director of the Liquor Commission had been directed by Duplessis, at the time the Prime Minister and AG of Quebec, to revoke the license as a means of stymying his financial resources to prevent him from acting as surety.

The SCC found that in public regulation, there is no such thing as absolute and untrammeled discretion. No legislation can – without express language – be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Further, discretion implies good faith in discharging public duty, where good faith implies carrying out the statute according to its intent and for its purposes, acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose.

In this case, the grounds for refusing or cancelling the permit should unquestionably only have been those which were compatible with the enabling statute. To revoke the permit on the basis that Roncarelli was exercising an unchallengeable right irrelevant to the sale of liquor was beyond the scope and discretion conferred by the Act Respecting Alcoholic Liquor

National Bank of Canada v. Retail Clerks’ Union, SCC [1984]

The Labour Relations Board found that in effecting a branch closure following a merger, the National Bank of Canada was in violation of its obligations toward the Union representing the employees under the Labour Code and imposed a series of remedies on the Bank. One of these remedies required the Bank to create a trust and to send all employees a letter written informing them of the decision of the Board and the creation of the trust. The National Bank filed for judicial review, arguing that the Board exceeded its jurisdiction.

The SCC allowed the appeal in part, finding that the penalty was “totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes. [The Court] cannot be persuaded that the Parliament of Canada intended to confer on the Canada Labour Relations Board the power to impose such extreme measures, even assuming that it could conger such a power bearing in mind the Canadian Charter of Rights and Freedoms, which guarantees freedom of thought, belief, opinion, and expression. These freedoms guarantee to every person the right to express the opinions he may have: a fortiori hey must prohibit compelling anyone to utter opinions that are not his own.

4

Smith v. Canada (AG), FC [2009]

Smith was condemned to the death penalty in the US after he was found guilty of two murders. Smith was receiving assistance from the Canadian government to have his sentence commuted until this support was ceased following the adoption of a new governmental policy in such matters. Smith argued that the impugned Ministers breached their duty of procedural fairness. in arbitrarily ceasing to support his application. The government argued that the change in policy was made pursuant to the Royal Prerogative and therefore its decision to cease support was not subject to review.

While the Court found in favour of Smith (incorrectly according to Pless), it did state: “… d’après la jurisprudence […] il est loisible au gouvernement du Canada, tout en demeurant assujetti au Parlement et à la Constitution, dans son appréciation de l’intérêt public, de modifier ses politiques librement et de temps à autre. L’élaboration des grandes politiques publiques fait partie après tout des fonctions de l’exécutif, et n’est pas généralement susceptible de contrôle judiciaire […] l’exercice de la prérogative d’élaborer et de mettre en œuvre des actions diplomatiques et de politique étrangère échappe à l’examen par les tribunaux.”

Superior courts are at the foundation of the Canadian judicial system and are crucial in the context of judicial review. Superior courts have a constitutional obligation to ensure that administrative decisions respect the rule of law. The inherent jurisdiction of the superior courts is crystallized in S. 96 of the Constitution . In every Canadian province, they are the first instance tribunal. There are exceptions, such as where it is provided for, in law, that another decisional body has jurisdiction over a particular matter in first instance, for example, administrative tribunals. Superior courts, however, retain the jurisdiction to review administrative decisions. This is part of their inherent jurisdiction. A statute may state that the review of a given administrative decision in the explicit jurisdiction of the Federal Court or the Federal Court of Appeal constituted under S. 101 of the Constitution, in which case it will not be heard by the superior court. A statute may also stipulate, through a privative clause, that the administrative decision is not subject to review. However, the law must minimally provide for the possibility to contest the jurisdiction of an administrative body.

In this way, judicial review of administrative action is a necessary component to ensure rule of law. Rule of law, in this context, is manifest in three ways:

(1) To ensure non-arbitrariness, administrative decisions must be in conformity with the law.(2) The law is applicable to all, including the government and its representatives.(3) The courts enforce the law.

The implication is that the exercise of public authority must be in accordance with the law and that the subjects of administrative decisions must have access to appropriate recourse in the face of arbitrary decisions. It is in this sense that the courts ensure rule of law. That is, courts ensure that administrative decision-makers exercise their discretion for legitimate ends and within the limits imposed by law. It is important to note, however, that judicial review is not an appeal. Courts cannot substitute their own decisions for those of administrative decision-makers.

Judicial review is available under two conditions:

(1) A person or entity over which the superior court has jurisdiction has,(2) Acted in a way which affected the rights or interests of another.

S. 96 therefore grants superior courts significant authority, as demonstrated in Crevier.

Crevier v. Quebec, SCC [1981]

Two members of a professional corporation were charged with offences under the Professional Code by the Discipline Committee, set up under the Act. The decision was appealed to the Professions Tribunal which under the act had the power to uphold, alter, or quash decisions of the Discipline Committee. A privative clause in the Act excluded recourse to the supervisor authority of the superior courts under certain articles of the CCP.The Court held that: “The Professions Tribunal is given no function other than that of a general tribunal of appeal in respect of all professions covered by the Professional Code and it was, therefore, impossible to see its final appellate jurisdiction as part of an institutional arrangement by way of a regulatory scheme for governance of the various

5

professions […] Where a provincial legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, and where that insulation encompassing jurisdiction, the legislation must be struck down as unconstitutional because it constitutes, in effect, a S. 96 court. It is unquestioned that privative clauses, when properly framed, may effectively oust judicial review on questions of law and on other issues not touching jurisdiction. However, given that S. 96 is in the   British North America Act   and that it would make a mockery of it to treat it in non- functional formal terms as a mere appointing power, there is nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. Conse quently, a provincially-constituted statutory tribunal could not constitutionally be immunized from review of decisions on questions of jurisdiction.”

N.B. In Crevier, the SCC also recognized that there is a constitutional right to judicial review.

C. Rule of Law and Judicial Review

The theoretical underpinnings of rule of law differ across scholars. Here, we see three. The Dicean conception of the rule of law is anchored in the three elements below, and must be understood in relation to parliamentary sovereignty. Fuller emphasizes the internal morality of the law. Finally, Raz believes that the basic function of the law is to provide a stable framework of rules capable of guiding behaviour; the emphasis is on the effectiveness of law, not its morality.

Dicey Fuller RazAbsence of arbitrary exercises of

authority within governments.

All are equal subject to the law.

Constitutional law is an integral part of the common law.

Laws must be general.

Laws must be public.

Laws must be prospective, not retroactive.

Laws cannot be contradictory.

Laws must be constant over time.

Laws must be reasonably clear.

Laws must be capable of execution and enforcement.

Concordance between laws as announced and as executed.

Laws must be prospective, not retroactive.

Laws must be relatively stable.

Independence of the judiciary is guaranteed.

Natural justice must be respected.

Tribunals must have limited powers of review.

Tribunals must be accessible.

So, how does the SCC understand rule of law? From Imperial Tobacco, the rule of law is described as the “fundamental postulate of our constitutional structure” which lies “at the root of our system of government.” Also in Imperial Tobacco, the court wrote: “The rule of law is not an invitation to trivialize or supplant the Constitution’s written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that the courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text.”

The SCC in Imperial Tobacco in fact adopts a minimalist conception of the rule of law. Under this conception, rule of law exists where:

(1) The law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power (Manitoba Language Rights Reference).

(2) The rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principles of normative order (Manitoba Language Rights Reference).

(3) The relationship between the state and the individual must be regulated by law (Quebec Secession Reference).6

In Imperial Tobacco, the SCC clarifies that the minimalist conception does not entail that the notion of the rule of law has no normative force. Rather, unwritten constitutional principles – including the rule of law – are capable of limiting government actions. Government actions which are constrained by the rule of law (e.g. Manitoba Language Rights Reference, Quebec Secession Reference) are usually that of the executive and judicial branches. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form.

Finally, there is no rule of law where there is no access to the courts, per Trial Lawyers. However, rule of law does not imply a constitutional right to representation, per Christie.

Trial Lawyers Association of British Columbia v. British Columbia, SCC [2014]

The Trial Lawyers Association challenged a hearing fee scheme as unconstitutional. They argued that persons possession some means, but unable to pay the hearing fees, have a right to have their disputes adjudicated in the courts, and the hearing fee regime in British Columbia was denying them this right in violation of S. 96 of the Constitution.

The SCC found that while BC had jurisdiction over the administration of justice within the province under S. 92(14), this authority must be exercised in harmony with the core jurisdiction of provincial superior courts protected under S. 96. Thus, while BC levying hearings fees was permissible under S. 92(14), the power to impose the fees was not unlimited. S. 96 confers a special and inalienable status on superior courts, and therefore in turn restricts the legislative competence of provincial legislatures and Parliament such that neither levels of govt. can enact legislation that abolishes or removes part of the core or inherent jurisdiction of S. 96 courts.

The connection between S. 96 and access to justice is further supported by considerations relating to the rule of law. The SCC affirmed that access to the courts is essential to the rule of law. Per Karakatsanis J. in Hryniak: “Without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined.” The rule of law and the S. 96 judicial function are inextricably intertwined. As access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the S. 96 courts, it is only natural that S. 96 provide some degree of constitutional protection for access to justice. Thus, in the context of legislation which effectively denies people the right to take their cases to court, concerns about the maintenance of the rule of law are not abstract. If people cannot challenge govt. actions in court, individuals cannot hold the state to account and the gov.t will be, or be seen to, above the law. If people cannot bring legitimate issues to court, the creation and maintenance of positive laws will be hampered.

British Columbia v. Christie, SCC [2007]

The Social Services Tax Amendment Act imposed a 7 per cent tax on the purchase price of legal service in order to fund legal aid. The Act required the tax to be submitted to the govt. even where the fees on which it had been levied were not paid. Christie, who took on cases for reduced fees for clients without the means to otherwise afford representation, argued that the tax was unconstitutional. He argued that the net effect of the tax was to bar his clients from retaining his services.

The SCC construed the right claimed by Christie as a broad right to representation (overbroad according to Pless). It did not find any basis in the Constitution for such a right. The Court instead held that the right claimed was so overbroad that the logical result – if granted – would be a constitutionally mandated legal aid scheme. The Court found that the right to access to justice was not an absolute right as S. 92(14) granted provinces the competence to impose certain conditions on how an when people have a right to access the courts.

Finally, while the Court recognized that the rule of law is a foundational principle, it does not follow from the three components of rule of law (see Imperial Tobacco above) that a general access to legal services is a fundamental aspect of the rule of law.

7

D. Rule of the Law and the Finality of Administrative Decisions

There are three key themes within the notion that administrative decisions are final:

(1) The principle of functus oficio.

(2) The application of issue estoppel (and collateral attack) in administrative law.

(3) The finality of penal decisions in administrative law.

The general rule of functus oficio is such that “once an administrative tribunal has reached a final decision in respect of the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change in circumstances. It can only do so if authorized by statute or if there has been a slip in drawing up the decision or there has been an error in expressing the manifest intention of the tribunal. To this extent, the principle of functus oficio applies to an administrative tribunal. It is based, however, on the policy ground which favours finality of proceedings rather than on the rule which was developed with respect to formal judgements of a court whose decision was subject to a full appeal. Its application in respect to administrative tribunals which are subject to appeal only on a point of law must thus be more flexible and less formalistic (Chandler v. Alberta Association of Architects).

Given this general rule, many pieces of legislation provide that an administrative decision can be modified or reviewed after it is rendered. However, this power is subject to the existence of a set of precise conditions and many laws also provide an elaborate procedure for such review.

The law has developed a number of techniques to prevent abuse of the decision-making process, and one of the oldest is the doctrine of estoppel per rem judicatem which precludes the relitigation of the constituent issues or material facts. These rules were initially developed in the context of prior court proceedings and have since been extended to judicial or quasi-judicial administrative decisions. “The objective is to balance fairness to the parties with the protection of the administrative-decision-making process, whose integrity would be undermined by too readily permitting collateral attack or] relitigation of issues once decided.” (Danyluk). “Litigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator. Subject only to right of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding. What they do not expect is to have those same issue relitigated by a different adjudicator in a different forum at the request of a losing party seeking a different result. On the other hand it may sometimes be the case that justice demands fresh litigation” (Figliola).

Issues estoppel, in general, “is available to preclude an unsuccessful party from relitigation in the courts what has already been litigated before an administrative tribunal […] Finality is a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal” (Danyluk).

From Danyluk, the preconditions to the operation of issue estoppel are threefold:

(1) The same question has been decided in earlier proceedings.

(2) The earlier judicial decision was final.

(3) The parties to that decision or their privies are the same in both proceedings.

Even where the moving party established these preconditions, a court must still determine whether, as a matter of discretion , issue estoppel ought to be applied . In exercising this discretion, courts will consider the circumstances of the prior administrative proceedings, incl. (from a 2016 report prepared by Dentons):

The limits on the awards that the administrative body could make. Whether the Act granting the administrative body authority shows legislative intent to preclude a civil action.

8

The purpose of the administrative proceeding, including the effect that allowing a judicial body to rehear and administrative proceeding would have on the quick an inexpensive route that most administrative proceedings aim to offer.

The convenience of hearing all the party’s claims in one proceedings. The procedural differences between the administrative body and the court. The availability of an appeal. The circumstances giving rise to the prior administrative proceedings.

The rule against collateral attack prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route (Figliola). Per Wilson v. The Queen: “It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally…”

Danyluk v. Ainsworth Technologies Inc., SCC [2001]

Danyluk was involved in a dispute with her employer concerning unpaid commissions and filed a complaint under the Employment Standards Act (ESA). Ainsworth submitted to the ESA officer that Danyluk had resigned. The ESA officer did not advise Danyluk of this submission and she was given no opportunity to respond. Ultimately, the ESA officer rejected her claim. Danyluk did not apply for statutory review of the decision, instead option to pursue an action in wrongful dismissal that she had filed concurrently with the complaint. Ainsworth moved to strike the part of the statement of claim which overlapped with the ESA proceedings, arguing that these claims were barred by issue estoppel.

The Court found that the doctrine of issue estoppel did not apply in this case. Issue estoppel is a public policy doctrine designed to advance the interests of justice. Therefore, where, as here, its application bars the courthouse door against a claim due to an administrative decision that was made in a manifestly improper and unfair manner, it cannot apply.

While the three preconditions to the operation of issue estoppel (see above) were met, the Court opted, as a matter of discretion , to refuse to apply the doctrine of issue estoppel . “The objective of issue estoppel is to promote the orderly administration of justice, but not at the cost of real injustice.” In this case, it was clear that the decision taken by the ESA officer was done so without proper notice being given to Danyluk and she therefore has no opportunity to meet the case put against her, which fails to meet the duty of procedural fairness owed to her.

N.B. This is neither judicial review not an appeal, therefore, the court in first instance accepted to hear this claim on the basis of its inherent jurisdiction under S. 96.

British Columbia (Workers’ Compensation Board) v. Figliola, SCC [20011]

The complainants suffered from chronic pain and sought compensation from the Worker’s Compensation Board (WCB). They receive fixed compensation and appealed the decision on the grounds that it was discriminatory under S. 8 of the BC Human Rights Code. The Review Officer concluded that he had jurisdiction over the Code and concluded that the impugned policy was not discriminatory. Instead of applying for judicial review to the Worker’s Compensation Appeal Tribunal, the complainants filed new complains with the Human Rights Tribunal, repeating the same claims under S. 8 of the Code. The WCB motioned for the Tribunal to dismiss the complaints arguing that it had no jurisdiction to hear the claim and further than the claim has already been appropriately dealt with.

S. 27(1)(f) of the Code provided a statutory mechanism whereby the Tribunal could prevent conflicting decisions arising from the same issues due to the concurrent jurisdiction exercised over the Code by the Tribunal and other administrative bodies. It stated that a complaint could be dismissed if it was determined that the substance of the complain or part of it had been appropriately dealt with in another proceeding. The Court found that S. 21(1)(f) did not call for a strict application of the doctrines of issue estoppel and collateral attack, but that the principles underlying these doctrines were “factors of primary importance that must be taken into account when exercising discretion under S. 21(1)(f)…” The underlying principles referred to incl.:

It is in the public interest that the finality of a decision can be relied on.9

Respect for the finality of a judicial decision increases fairness and the integrity of the courts and administrative tribunals while relitigation of issues that have previously been decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.

The method for challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature.

Parties should not circumvent the appropriate review mechanisms by using other forums to challenge a judicial or administrative decision.

Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

Therefore, the Tribunal must be guided by the goals of fairness of finality in decision-making and the avoidance of relitigation of issues already decided by a decision-maker with the authority to resolve them. Thus, to determine whether the matter was “appropriately dealt with” by the WCB, the Tribunal had to ask:

(1) Whether there was concurrent jurisdiction to decide issues under the Human Rights Code.

(2) Whether the previously decided legal issue was essentially the same as what was being complained of to the Tribunal.

(3) Whether there was an opportunity for the complainants to know the case to me met and a chance to meet it.

The Tribunal, in this case, had applied the factors from Danyluk (see above). The Court found that importing the Danyluk factors was incorrect, as they were developed to assist courts in applying the doctrine of issue estoppel, while S. 27(1)(f) is not limited to issue estoppel, and also comprises collateral attack and abuse of process. The purpose of S. 27(1)(f) was to “[create] territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching.”

The Court concluded that the strict application of issue estoppel by the Tribunal in this case in fact had the effect of obstructing rather than implementing the goal of avoiding unnecessary relitigation because in acceding to the complainants’ request on the same S. 8 issue, it ignored the fact that the parties should not attempt to impeach administrative decisions through the route of relitigation in a different forum, which is impermissible. The Court therefore found that the decision of the Tribunal was patently unreasonable.

N.B. In a concurring opinion (four justices concurring) it is argued that the is a need for broader discretion in applying finality doctrines in the administrative law setting because of intricate and changing procedural contexts. The most important consideration, under this approach, is “whether giving the earlier proceeding final and binding effect will work an injustice. If there is substantial injustice, or a serious risk of it, poor procedural choices by the complainant should generally not be fatal to an appropriate consideration of their complaint on its merits.”

What about Quebec? Issue estoppel and collateral attack are CML doctrines. In Quebec, reliance is placed on the notion of res judicata which exists in CCQ 2848: The authority of res judicata is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same.

In Roberge v. Bolduc, the SCC held that “the rationale for this irrebuttable presumption of validity of judgments is anchored in social public policy to ensure the security and stability of relations in society. The converse would be anarchy, with the possibility of endless trials and contradictory judgments.” It further cites from doctrine: “The real basis of the authority of res judicata lies much less in this legal presumption of truth than in a consideration of social utility. The purpose of the legislature has been to ensure that proceedings being perpetually started over again would not compromise the security and stability of social relationships, especially in view of the unavoidable fact that possible

10

conflicts in judgments rendered in such multiple trials. The public interest requires that something which, to use the classic phrase, has become res judicata can no longer be questioned.”

A final note is that the necessary consequence of the irrebuttable presumption of the validity of judgments is that the authority of res judicata exists even where there is an error in the judgement. The proper recourse to correct errors in a judgment are provided for in the CCP. Unlike issue estoppel, there is no discretion left to the adjudicator to decide whether or not res judicata should apply or not in a given case (Nasifoglu v. Complexe St-Ambroise).

N.B. CCQ 2848 can be argued to be analogous to a privative clause such as the one seen in Crevier above which was declared to be unconstitutional as it limited the inherent jurisdiction of S. 96 courts. So, an important question to ask is therefore whether there should not similarly be constitutional limit to CCQ 2848.

The last important consideration is the finality of penal decisions in administrative law.

Toronto v. C. U. P. E. Local 79, SCC [2003]

An employee of the city of TO was charged with sexual assault. He was found guilty. After his conviction, the employee was fired. He grieved the dismissal and at his arbitration hearing the arbitrator deemed that his conviction was admissible evidence but that it did not conclusively prove that the employee had indeed committed sexual assault. No other evidence was submitted. The arbitrator thus ruled that the presumption raised by the conviction was rebutted, and therefore the employee had been dismissed without just cause.

The SCC here considered whether it should apply the doctrine of issue estoppel. The two preconditions to issue estoppel as laid out in Danyluk (above) were met, but the third, that the parties to the decision were the same in both proceedings, was not. Because C. U. P. E. – the union – was not seeking to overturn the conviction but was merely contesting whether it was correct for the purposes of a different claim, the doctrine of collateral approach also did not apply.

Thus, the SCC relies on the facts that judges have an inherent and residual discretion to prevent abuse of the court’s process. Abuse of process was here describes as proceedings unfair to the point that they are contrary to the interest of justice. Abuse of process is established where:

(1) The proceedings are oppressive and vexatious; and,

(2) The proceedings violate the fundamental principles of justice underlying the community’s sense of fair play and decency.

The policy rationale underlying this doctrine is that it ensures that there be an end to litigation, and ensures that no one should be twice vexed by the same cause.

Thus, the citing Canam Enterprises, writes: “The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requires of concepts such as issue estopped.”

The primary focus of the doctrine is the integrity of the adjudicative functions of the courts, and it is on this ground that the court rules that TO had just cause in firing the employee and that he could not be reinstated by the decision of the arbitrator.

E. Access to Judicial Review

There are three key considerations with respect to access to judicial review:

The means through which one can ask for judicial review of an administrative decision.

Understanding the provincial and federal actors involved.11

Identifying the relationship between administrative tribunals and the reviewing courts.

While judicial review is entrenched in the Constitution, in many cases, access to judicial review is statutorily provided for. This allows the concerned party to know the decision-makers involved, the appropriate forum where judicial review will be available, and which procedure they will have to follow. Such provisions exist both provincially and federally. One example would be S. 72 of the Immigration and Refugee Protection Act which stipulates that a request for authorization must be submitted in order for a decision to be judicially reviewable by the Federal Court.

However, it is important to note that the power of supervisor ultimately resides with the superior courts pursuant to their inherent jurisdiction under S. 96, this means that even where the jurisdiction is granted to review an administrative decision by law, this jurisdiction is still part of this inherent jurisdiction and as such cannot be removed per Crevier.

Using Quebec as an example, CCP 34: The Superior Court is bested with a general power of judicial review over all courts in Quebec other than the Court of Appeal, over public bodies […] This power cannot be exercised in cases excluded by law or declared by law to be under the exclusive purview of those courts, persons, bodies or groups, except where the is lack or excess of jurisdiction. A matter is brought before the Court by means of an application for judicial review. Notice that this means that the general power of judicial review on questions of jurisdiction can never be stripped.

The Federal Court reviews federal administrative decisions per S. 18(1) of the Federal Courts Act and this power is couched in S. 101 of the Constitution. The purpose is to ensure uniformity in the interpretation of federal law across Canada. Federal administrative decisions are those made by federal boards, commissions, or other tribunals as identified under S. 2 of the Federal Courts Act.

Federal Courts Act

S. 2: Federal board, commission, or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a

prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established or under a law of a province or any such person or persons appointed under or in accordance with a law of a

province or under S. 96 of the Constitution.

S. 18(1): Subject to S. 28, the Federal Court has exclusive original jurisdiction(A) To issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant

declaratory relief, against any federal board, commission or other tribunal; and(B) To hear and determine any application or other proceeding for relief in the nature of relief contemplate by paragraph (A), including any proceedings brought against the AG of Canada, to obtain relief against a federal board, commission or

other tribunal.

Constitution Act, 1867

S. 101: The Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and organization of a general court of appeal for Canada and for the establishment of any

additional courts for the better administration of the laws of Canada.

In several provinces, provincial legislatures have added another layer within administrative law, namely through the creation of administrative tribunals. These tribunals do not provide judicial review, but rather their decisions are subject to judicial review (per, for example S. 57 of the Administrative Tribunals Act or S. 58 of the Loi sur la justice administrative).

F. Building a Case for Judicial Review and Rule 317

“A judicial review is not a trial de novo and, as a result, there are limits with respect to what constitutes the record before the Federal Court. Generally speaking, the record on judicial review is nothing more than what was before the

12

administrative decision-maker below. However, over the years, the Federal Court has carved out exceptions to the general rule. These exceptions allow applicants, respondents, and, on occasion, the administrative decision-maker itself, to supplement the record, providing the Federal Court more information with which to make its decision” (Moreau & Lambek).

Rule 317 of the Federal Court Rules is central to judicial review because it limits the evidence which can be considered by the reviewing court. The general rule is that only the evidence which was before the administrative decision-maker at the time they made the impugned decision should be admissible as proof in the context of judicial review (Association des universités et collèges du Canada v. Canadian Copyright Licensing Agency). This provision allows parties to “effectively pursue their rights to challenge administrative decisions from a reasonableness perspective” and “have the reviewing court consider the evidence presented to the tribunal in question” (Moreau & Lambek). The underlying principle is the distinction between the role of administrative decision-maker, who has the jurisdiction to decide on the question at issue, and the role of the Federal Court as the court responsible for judicial review (Tsleil-Waututh Nation v. Canada). In general, it is not permissible for any party to a judicial revew to buttress the record with additional evidence because an application for judicial review is not a hearing de novo, it is a review of the record which was before the administrative decision-maker below. If new evidence were admissible, then this would no longer be judicial review.

This raises two fundamental questions:

(1) How can the complainant gain access to the file?

(2) How is it determined which documents are pertinent?

The procedure to be followed is laid out in Rule 317. However, note that some legislation, so example, S. 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, provide their own procedure, for example, ordering a full disclosure of the entire file in all cases. Pless also says this is general practice by the govt.

Federal Court Rules

Rule 317(1): A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request,

identifying the material requested.

Rule 318(1): Within 20 days after service of a request under Rule 317, the tribunal shall transmit(A) A certified copy of the requested materials to the Registry and to the party making the request; or

(B) Where the material cannot be reproduced, the original material to the Registry.

Rule 318(2): Where a tribunal or party objects to a request under Rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.

Rule 318(4): The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry.

Per Pathak and Gagliano, documents are considered relevant for the purposes of Rule 317 if they may affect the decision that the reviewing court will make. The relevance of requested materials is determined by having regards to:

(1) The notice of application.

(2) The grounds of review invoked by the applicant.

(3) The nature of judicial review.

However, a complicating factor is the fact that the administrative process is much more complex than the adversarial process before the courts. This is due to the fact that multiple parties tend to submit letters, reports, and so on, which are

13

provided to the Ministry which is charged with making the administrative decision. Oftentimes, the evidence is reviewed by an investigator who prepares a summary of the evidence and presents the summary to the decision-maker along with their recommendation.

Canada (Human Rights Commission) v. Pathak, FC [1995]

Pathak submitted a complaint to the CHRC alleging that he was the victim of discrimination by RBC. The CHRC rejected his complaint on the grounds that, based on the evidence before it, there discrimination claimed was inexistent. Pathak therefore requested judicial review of the decision under S. 18(1) of the Federal Courts Act to which he attached a request that the CHRC produce a certified copy of the file, which the CHRC did. He also sought an order enjoining the CHRC to produce all the documents which were used by its agent in preparing the file for his case. The judge ordered that documents be produced, so long as they were related to the application for judicial review. The CHRC appealed this order.

The Court ruled that a document is considered relevant in the context of an application for judicial review where it may influence the way in which the Court will decide. Given that the decision of the Court will be limited to the grounds of review invoked by the applicant, the relevance will be established as a function of these motives.

The investigator having completed the investigation into the claim in behalf of the CHRC is not fully independent from the CHRC. However, this does not imply that they must considered to be one and the same entity. While the documents used by the investigator were in the custody of the CHRC, those documents were not before the Commission when it rendered its decision.

Gagliano v. Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), FC [2006]

Gagliano submitted a request under Rule 318 of the Federal Court Rules for an order enjoining the Commission to produce certified copies of documents in its possession related to its investigation which is refused to produce pursuant to a request under Rule 317.The Court determines that in deciding whether to enjoin the Commission to produce the requested documents, it must defer to the ruling in Pathak. In Pathak, it is well established that under Rule 317, the Commission was only held to produce those documents at its disposal at the time at which the decision-maker rendered his decision. Further, a document will only be considered relevant where it may affect the decision the reviewing court will make.

There are a few exceptions to this rule, namely where the administrative decision-maker failed to respect the duty of procedural fairness, where there is a reasonable apprehension of bias as to the decision-maker, or where the administrative decision-maker overstepped his jurisdiction. In this case, Gagliano tried to argue that there has been a lack of procedural fairness. However, the Court determined that even where this was established, the Court would still consider the relevance of the documents in light of the grounds of review invoked by the appellant.

The Federal Court has detailed narrow exceptions when additional evidence may be permitted. Such exceptions are largely based on the grounds of fairness, natural justice, and assistance to the court and exist only in situation where the receipt of evidence by the court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker.

There are three main exceptions, though the list is not exhaustive. They incl.:

(1) Where the applicant believes it is necessary to bring to the attention of the reviewing court procedural defects, such as bias, questions of jurisdiction, procedural fairness, or natural justice concerns which are not captured in the evidentiary record of the decision-maker.

(2) Where there was a complete absence of evidence before the decision-maker that would support a particular finding made by the decision-maker.

(3) Where the affidavit evidence outlines general background information in circumstances where that information might assist the Court.

14

Note that where one party believes that another has improperly augmented the record on the judicial review, the party can file a motion to have the objectionable part of the record struck in whole or in part.

II. Judicial Review of Procedural Fairness

A. Sources and Limits of the Duty of Procedural Fairness

There is an important nexus between procedural fairness and rule of law. If rule of law is the source of the duty of procedural fairness, then the duty has a constitutional character. This statement is true to the extent that the duty of procedural fairness is necessary to prevent administrative decision-makers from making arbitrary decisions, and arbitrary decisions are contrary to the rule of law. However, if this duty has a constitutional character, then we must ask ourselves why the legislature can adopt legislation which explicitly excludes this obligation.

The sources of the duty of procedural fairness incl.:

Common law. Statutory interpretation. S. 2(3) of the Bill of Rights. S. 7 of the Charter. Explicit statutory obligations.

Procedural fairness is presupposed in statutory interpretation. If the legislation is silent or this duty is not explicitly excluded, it is presumed that the legislator intended that the decision-making powers accorded to the administrative decision-maker be exercised respecting procedural fairness. If this is the case, then we must ask what evidence will be sufficient to reverse the presumption.

What justifies the existence of a duty of procedural fairness?

A positivistic conception of the law whereby there must be a guarantee of procedural fairness in positive law (Nicholson, Knight).

The intention of the legislator.

The CML notion that equity is an integral and constitutive part of the legal system (Nicholson, Knight).

Note that it was not always recognized that there existed a general duty of procedural fairness, as illustrated in Hardayal.

Canada (Minister of Manpower and Immigration) v. Hardayal, SCC [1997]

Hardayal failed to qualify for admission to Canada as a landed immigrant but because his wife was a Canadian resident, he received a permit under S. 8 of the Immigration Act to remain for a year. However, before the expiry its expiry, the permit was cancelled. Hardayal applied for judicial review of the decision to cancel his permit under S. 28 of the Federal Courts Act. The decision was set aside and referred back to the Minister. The Minister appealed the decision.

The Court found that the cancellation of the permit was clearly an administrative decision. Because S. 28 provides for review of decisions other than orders of an administrative nature required by law to be made on a judicial or quasi-judicial basis, the Court had to determine whether the decision to cancel the permit was required to be taken on a judicial or quasi-judicial basis.

Under S. 8 the Minister has the power to grant, extend, or cancel permits but there is no direction as to the method to be used and no limitations on the persons who may be subject to such permits; the decision was intended to be purely administrative and not to be carried out in any judicial or quasi-judicial manner. The Court finds that the determination of who may hold a permit is one which is purely administrative and therefore not reviewable under S. 28.

15

N.B. This rule no longer exists!

In Nicholson, the SCC recognized that there exists a general duty of procedural fairness. We see it again in Knight despite the distinction in the reasoning. Per Knight , the existence of this right is dependent on a consideration of three factors:

(1) The nature of the decision made by the administrative body.

(2) The relationship existing between that body and the individual.

(3) The effect of that decision on the individual’s rights.

The content of this duty varies.

Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, SCC [1978]

Nicholson was hired as second class constable in Haldimand-Norfolk in March 1974 pursuant to the Regional Municipality of Haldimand-Norfolk Amendment Act. He began working in April and in June received a letter advising him that the Board of Commissioners of Police had approved his termination. The record indicated that Nicholson was not informed of the reasons for his dismissal, nor was he given any notice of its likelihood. He also was not given the opportunity to make representations to the Board before his services were terminated.

S. 27 of Regulation 680 of the Police Act, stated that: “No chief of police, constable, or other police officer is subject to any penalty under this Part except after a hearing and final deposition of a charge on appeal […] nothing herein affects the authority of a board or council, (B) to dispense with the services of any constable within eighteen months of his becoming constable.” The question, therefore, was whether the Board was entitled to peremptorily dismiss Nicholson without any obligation to give notice or to assign any reason for the dismissal, and without giving Nicholson the opportunity to contest the dismissal, given that he had been constable for fewer than 18 mo.

The SCC first observes that the Police Act confers certain discretionary powers on the Board. However, while Nicholson could not claim the procedural protections provided to constables with 18 mo. or more of service under the Regulation. He could not be left without any protection and must be treated fairly, not arbitrarily. The SCC adopts CML principles from Bates: “[In] the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness.”

The SCC further holds that the classification of statutory functions as judicial, quasi-judicial, or administrative is often difficult to make and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected. In this case, the consequences for the appellant were serious. The Court ruled that Nicholson should have been told why his services were no longer required and given an opportunity, whether orally or in writing, to respond.

Knight v. Indian Head School Division No. 19, SCC [1990]

Knight was dismissed by the Indian Head School Division Board with 3 mo. notice. In his contract of employment, it was stipulated that termination could be effected by either party given 3 mo. notice in writing or by resolution of the Board for just cause, provided the employee be given a fair hearing and investigation. The Board passed a resolution to terminate Knight’s employment and gave him 3 mo. notice. Knight claimed wrongful dismissal, alleging an absence of procedural fairness.

S. 91(x) of the Education Act required that: “A board of education shall enter into written contracts of employment with teachers and other personnel required […] and terminate such contracts for cause in accordance with the provisions of this Act. Thus, the Board was granted a limited power to dismiss for cause in that the dismissal must be in accordance with the Act. Knight was employed as administrative personnel and S. 112 provided that for such employees, where the employment contract contained no provisions dealing with the procedure for dismissal, 3 mo. written notice was required.

16

Because this is the only requirement listed under S. 112, the Board had an unqualified power to dismiss Knight, even absent just cause, so long as it gave a 3 mo. notice.

The Court then looks to the employment contract. While the contract provided that Knight’s employment could be terminated without cause provided 3 mo. notice was given, this did not entail that the procedure involved could be arbitrary. The Court recognized a general right to procedural fairness, autonomous of the operation of any statute. The existence of this right is dependent on a consideration of three factors:

(4) The nature of the decision made by the administrative body.

(5) The relationship existing between that body and the individual.

(6) The effect of that decision on the individual’s rights.

Here, the employer, the IHSD, is a public body whose powers are derived from statute, and therefore must be exercised in accordance with the rule of administrative law. The nature of the decision no longer requires a distinction between judicial, quasi-judicial, and administrative decisions (Nicholson). Instead, decisions of a legislative and general nature – meaning decisions previously made by legislatures – can be distinguished from acts of a more administrative and specific nature which do not generally entail a duty to act fairly. The finality of the decision is also important. A decision of a preliminary nature will generally not trigger the duty to act fairly, whereas a decision of a more final nature may. The right to procedural fairness exists only where the decision is a significant one and has an impact on the individual.

The decision of the Board, as an administrative body, was both specific and final, thereby possibly entailing a duty to act fairly. The loss of employment is considered a significant decision which had a clear impact on Knight and could also justify imposing a duty of procedural fairness. Thus, given the circumstances, the Court concluded that it was incumbent on the Board to act fairly.

The Court then turned to the Act to see if it modified this duty. In order to abrogate the rules of natural justice, express language or necessary implication must be found in the statutory instrument. In this case, there was no indication in the Act that the right to procedural fairness had been restricted.

The content of the duty to act fairly is variable and its content is to be decided in the specific context of each case. The concept of fairness is, however, not entirely subjective and is entrenched in the principles governing our legal system and the closeness of the administrative to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making. Because in this case the Court determined that Knight could be dismissed at pleasure, the content of the duty of fairness was minimal and therefore notification of the reasons for the Board’s dissatisfaction and the opportunity for Knight to be heard would be sufficient. Earlier negotiations occurring before the notice of termination between Knight and the Board were deemed to have provided sufficient opportunity for Knight to be aware of the reasons of dissatisfaction and for him to be heard.

There exist several other sources of the duty of procedural fairness.

The Bill of Rights is a quasi-constitutional document. A right to procedural fairness can be couched in S. 2(e) of the Bill of Rights, which states: “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, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applies so as to (E) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations . This provision can therefore be invoked as soon as the rights of a party are affected.

N.B. Pless does not understand why applicant do not always please S. 2(e). In his opinion it can and should be pleaded in the majority of applications for judicial review.

17

Air Canada v. Canada (AG), QCCA [2003]

Parliament adopted S. 104 of the Competition Act which granted the Commissioner the power to grant interim orders against Air Canada to prevent it from engaging in actions which would reduce competition, and has the power to do so without prior notice and without granting Air Canada the right to make any submissions. These interim orders could cost Air Canada enormous sums. Air Canada submitted that S. 104 therefore was in breach of S. 2(e) of the Bill of Rights.

So long as the rights or obligations of the applicant are engaged, they may claim the protection of S. 2(e) of the Bill of Rights. So, as a preliminary matter, S. 104 breaches S. 2(e) and should therefore be declared invalid unless the rights infringement can be justified.

While the legislature may modify or even exclude this duty, but the principle of procedural fairness may only be modified in accordance with the quasi-constitutional Bill of Rights. Thus, given the absence of a “notwithstanding clause,” the Court must consider whether S. 104 respects S. 2(e).

The content of the duty of procedural fairness here must be determined in accordance with the factors in Baker:

(1) The nature of the decision being made and the process followed in making it.

(2) The nature of the statutory scheme and the terms of the state pursuant to which the body operates.

(3) The important of the decision to the individuals affected.

(4) The legitimate expectations of the person challenging the decision.

(5) The choices of procedure made by the agency itself.

In this case, the nature of the decision is an interim order (an injunction), and the Act does not provide for a hearing and in fact excludes the possibility of a hearing. Several parties are affected by these orders including Air Canada, its competitors, and third parties. Because S. 104 provides for a vast array of remedies, through his interim orders, the Commissioner – when he intervenes in the commercial activities of Air Canada – may create irreparable harm. In this context, it is reasonable to conclude that the duty of procedural fairness includes a right to be heard. While such a duty is only applicable where the decision is final, and in this case the decision is but an interim order, a final decision is defined as one which has an immediate and direct impact on a party, and therefore this argument does not stand.

The Court finds that, all circumstances considered, there is a strong case for a substantive right of procedural fairness. In this case, because the Commissioner is responsible both for investigation competition claims and rendering decisions, he acts both as investigator and judge and therefore cannot be impartial in the way which is required for a decision-maker. Further, the Act does not permit Air Canada to make submission despite the potentiality that its rights will be affected over a significant period.

Finally, the infringement of the right to procedural fairness under S. 2(e) could not be justified pursuant to an Oakes-type analysis, as while the objective of the Act is pressing and substantive, S. 104 fails the proportionality test.

Authorson v. Canada (AG), SCC [2003]

Authorson was the representative plaintiff for a large class of disabled Canadian veterans. Canada acted as a fiduciary for each of these veterans and the funds it owed the veterans were rarely credited with interest. An amendment to the Department of Federal Affairs Act rendered some of this debt unenforceable by barring claims for interest before 1990 on veterans’ accounts. Authorson argued that the Bill of Rights guarantees him the right to due process where the government is expropriating his property. The AG argued that the expropriative legislation was a valid exercise of legislative power and therefore there was no remedy.

The Bill of Rights will render inoperative any federal legislation which is inconsistent with its protections. If Parliament wishes to circumvent the protections of the Bill of Rights, it must do so explicitly by stating within the legislation

18

that it operates notwithstanding the Bill of Rights. The Act in this case did not enact such a “notwithstanding clause.” Therefore, the Court had to determine whether the due process rights entrenched in the Bill of Rights permitted the Crown to deny its liability for the missing interest.

The Court found that there is no right to notice or to a hearing in the context of Parliament passing legislation. The only procedure due any citizen of Canada is that the proposed legislation be passed by the House and Senate and receive Royal Assent. A court cannot compel Parliament to changes its legislative procedures based on the Bill of Rights .

While the Bill of Rights does guarantee notice the opportunity to contest of deprivation of rights by the government, where there is no adjudicative procedure necessary for the non-discretionary application of law to incontestable facts, the procedural protections of the Bill do not apply.

Finally, Authorson claimed a right against expropriation of property, but the Court refused to read in substantive protections into the right to due process. The Bill protects only those rights that existed at the time of its passage in 1960 . At that time, it was undisputed that Parliament had a right to expropriate property so long as its intent was clear. Here, the intent of Parliament to expropriate under S. 5.1(4) of the Act was clear and unambiguous. Thus, Authorson had no claim for interest since he would have had no substantive right against a clear and unambiguous expropriate in 1960.

A duty of procedural fairness is sometimes found in certain provincial legislation. For e.g., in S. 2 of the Loi sur la justice administrative, the QC legislature attempts to impose this duty: “Les procedure menant à une decision individualle prise à l’égard d’un administer par l’Administration gouvernementale, en application des normes prescrites par la loi, sont conduits dans le respect du devoir d’agir équitablement.”

Finally, S. 7 of the Charter may also be a source of a duty of procedural fairness, but we will see this below in Section II. C.

An important question to ask is, if the duty of procedural fairness has a constitutional flavour, whether there are limits to this obligation , for e.g. whether Parliament can enact legislation which excludes the duty of procedural fairness .

Ocean Port Hotel v. British Columbia, SCC [2001]

Ocean Port Hotel was alleged to have committed several infraction under the Liquor Control and Licensing Act. After a hearing a Senior Inspector found that the allegation were substantiated and imposed a penalty. The ruling was appealed by way of a hearing de novo where the majority of the allegation were upheld. The Board members who are the administrative decision-makers here serve at the pleasure of the Lieutenant Governor in Council and serve on a part-time basis. The question was whether the tenure enjoyed by the Board members – appointed at pleasure by the executive – was sufficiently secure to preserve the appearance of their independence.

Absent constitutional constraints, the degree of independence required of an administrative decision-maker or tribunal is determined by its enabling statute. The statute must be construed as a whole to determine the degree of independence that the legislature intended. If the statute is silent, courts will generally infer that Parliament intended for the process to comply with the principles of natural justice. In such cases, administrative decision-makes or tribunals may well be bound by the requirement of an independent and impartial decision-maker. The precise standard of independence required – if required – will depend on all the circumstances, and in particular on the language of the statute under which the agency acts, the nature of the task it performs, and the type of decision it is required to make. Courts will not assume lightly that the legislature intended to enact procedures running contrary to these principles.

Ultimately, Parliament determines the nature of the relationship between a tribunal and the executive and it is not open to a court to apply a common law rule in the face of clear statutory discretion. This principle reflects the distinction between administrative tribunals and courts. Superior courts, by virtue of their role as courts of inherent jurisdiction are constitutionally required to possess objective guarantees of both individual and institutional independence. Likewise with provincial courts. Administrative tribunals lack this constitutional distinction from the executive and are in fact created for the very purpose of implements govt. policy. Thus, it the role of Parliament to determine the composition and structure required by a tribunal.

19

In this case, the legislation was clear and unambiguous that the Board members should be appointed at pleasure. Thus, the statute cannot be interpreted as requiring a higher degree of independence to meet the requires of natural justice.

Canada (AG) v. Inuit Tapirisat, SCC [1980]

The Canadian Radio-Television and Telecommunications Commission (CRTC), in response to an application from Bell, conducted hearings concerning a proposed rate increase. The proceedings were conducted under the National Transportation Act and the Canadian Radio-Television and Telecommunications Act. The CRTC approved the new rate structure. Inuit Tapirisat opposed the decision. It had two routes available to challenge the decision, either through the Federal Court of Appeal or through the Governor General in Council under S. 64(1) of the National Transportation Act. It opted for the latter.

The Governor General in Council rendered a decision in favour of Bell. It did not hold oral hearings and accepted written submissions only. It rendered its decision having received only summarized versions of the submissions made by Inuit Tapirisat. Inuit Tapirisat attacked this decision on the grounds that they had not been given a hearing in accordance with the principles of natural justice. The question here was whether a duty of fairness was incumbent upon the Governor in Council.

S. 64 created a right of appeal on questions of law or jurisdiction to the Federal Court of Appeal or an unlimited right to petition the Governor General in Council to vary or rescind any order, decision, rule, or regulation of the Commission. The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond review. It is necessary to examine the enabling statute to discern whether it makes the decision-maker subject to any rules of procedural fairness.

Once the CRTC has approved a tariff, the Government in Council is granted the power to establish rates by the variation of the order, decision, rule, or regulation of the Commission. However, S. 64(1) does not burden the executive with any standards or guidelines in the exercise of its review function nor were procedural standards imposed or even implies. The Court thus does not accept the that legislation requires the Governor in Council to read the submissions themselves and consider all the material evidence before the CRTC.

While the duty to observe procedural fairness need not be express, it will not be implied in every case. It is always a question of construing the statutory scheme as a whole in order to see to what degree, if any, the legislator intended the principle to apply. In this case, the Act vested a supervisory power on members of Cabinet through S. 64(1) in order to enable them to respond to political, economic, and social concerns. Thus, under S. 64(1), it was exercising the power delegated to it by Parliament to determine the appropriate tariffs for telephone services, and thus was entitled to consult all the sources which Parliament itself may have consulted. Given this reasoning, the Governor in Council has no obligation to give reasons for the decision, nor to hold any hearings. There was no duty of procedural fairness here: “It may be thought by some to be unusual and even counter-productive in an organized society that a carefully considered decision by an administrative agency, arrive at after a full public hearing in which many points of view have been advances, should be susceptible or reversal by the Governor in Council. On the other hand, it is apparently the judgment of Parliament that this is an area inordinately sensitive to changing public policies and hence it has been reserved for the final application of such a policy by the executive branch of government. Given this interpretation of S. 64(1), there is no need for the Governor in Council to give reasons for his decision, to hold any kind of hearing, or even to acknowledge the receipt of a petition.”

Reference Re Canada Assistance Plan (British Columbia), SCC [1991]

In 1990, the federal government decided to cut expenditures and limit the growth of payments made to financially stronger provinces under the Canada Assistance Plan in order to reduce the deficit. The change was embodies in the Government Expenditures Restraint Act.

The Lieutenant Governor in Council of BC referred two questions to the BCCA, namely whether Parliament has any authority to limit its obligations under the Plan and its Agreement with BC, and whether the terms of the Agreement and the subsequent conduct of the Govt. of Canada gave rise to a legitimate expectation that Parliament would introduce not legislation to limit its obligations under either without the consent of BC.

20

The contribution formula appears at S. 5 of the Plan, and not in the Agreement between BC and the Govt. of Canada. As such, it is subject to amendment by virtue of the principle of parliamentary sovereignty. The insertion of the formula for payment in the Plan only is a strong indication that the parties did not intend that the formula should remain forever frozen. To asset that provincial government could prevent Parliament from exercising its powers to legislate amendments to the Plan would be to negate the sovereignty of Parliament. S. 8 of the Agreement obliges Canada to pay the amounts which Parliament has allowed the government to pay pursuant to S. 5 of the Plan. Hence, the payment obligations under the Agreement were subject to change following the amendment to S. 5.

The federal government did not act illegally in invoking the power of Parliament to amend the Plan without the consent of BC. The doctrine of legitimate expectations does not create substances rights, here the claimed right to veto proposed federal legislation. The doctrine does not apply to the legislative process. The government is not constrained by this doctrine from introducing a bill to Parliament. This would fetter parliamentary sovereignty.

Finally, the Court found that the amendments by virtue of S. 2 of the Government Expenditures Restraint Act was not ultra vires Parliament.

B. Content of the Duty of Procedural Fairness

Once it is established that there exists a duty of procedural fairness, the next step is to determine the content of this duty, that is, what is due to the applicant. This is a highly contextual determination, and the framework for establishing the content of this duty is that given in Baker.

The basic elements which constitute the duty of procedural fairness incl.:

Sufficient notice. Right to be heard – audi alteram partem. Impartial decision-maker – nemo judex sua causa.

Sufficient notice requires that notice be given such that a realistic delay is granted to the person subject to the decision to prepare submissions. It may at times include the right to request an extension.

The right to be heard involves the right to know the case (evidence) against one and all other relevant considerations. Note that how much evidence one has access to is variable and it is in fact rare that one would have access to the entire case. There is, however, generally a right to obtain a summary of the evidence. It can also involve the right to make oral or written submissions, depending on the context. In certain cases, it implies a right to testify in person before the decision-maker. It may even include a right to hear and cross-examine witnesses, although in reality this is dependent on the operational capabilities of the decision-maker. Finally, it involves the right to know the motives upon which the decision-maker based their decision.

Impartiality requires that the decision-maker must, at a minimum, have an open mind, meaning that they can be convinced either way. In certain cases, there must be complete absence of any reasonable apprehension of bias. Finally, in certain cases it may also require the independence of the decision-maker.

N.B. In certain circumstances, the duty of procedural fairness will also require the provisions of written reasons for the decision, per Baker, see below.

N.B. Pless says that it is important to remember that these requirements are also affected by practical realities. Requiring, for example, that the concerned party be heard orally, or requiring the decision-maker to give exhaustive reasons for each decision rendered, would both reduce the effectiveness of the administrative process as well as increase the cost to taxpayers. Think about this in relation to the decision in Baker.

Helpful scale:

21

The content of the duty of procedural fairness is variable, per Baker “the existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances” and from Knight (cited in Baker) “all of the circumstances must be considered in order to determine the content of the duty of procedural fairness . ”

The factors that must be considered, per Baker, incl.:

(1) The nature of the decision being made and the process followed in making it.

(2) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.

(3) The importance of the decision to the individual affected.

(4) The legitimate expectations of the person challenging the decision.

(5) The choices of procedure made by the agency itself.

Nature of the decision and process. Per Knight: “The closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision-making . ” This is in reference to the nature of the decision itself. The more the process provided for, the function of the tribunal, the nature of the decision-making body, and the determination that must be made to reach a decision resemble judicial decision-making (applying rules to facts), the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness.

In Baker: “An H & C decision is very different from a judicial decision, since it involves the exercise of considerable discretion and requires the consideration of multiple factors […] These factors [see 2nd factor below] militate in favour of more relaxed requirements under the duty of fairness”

Nature of the statutory scheme. Here, courts should ask about procedural protections. For e.g., whether the legislation provides a right to appeal, or whether the decision rendered is final and the applicant is precluded from making another application. Greater procedural protections will be required when no right to appeal is provided for or when the decision is determinative of the issue and further requests cannot be submitted.

In Baker: “Second, its role is also, within the statutory scheme, as an exception to the general principles of Canadian immigration law. These factors [see 1st factor above] militate in favour of more relaxed requirements under the duty of fairness […] there is no appeal procedure, although judicial review may be applied for…”

22

Important of the decision. The more important and impactful the effect of the decision on the life of the applicant, the more stringent to procedural protections that will be mandated.

In Baker: “… this is a decision that in practice has exceptional importance to the lives of those with an interest in the result – the claimant and his or her close family members – and this leads to the content of the duty of fairness being more extensive.”

Legitimate expectations. 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 a claimant has a legitimate expectation that a certain result will be reached in their case, fairness may require more extensive procedural rights than would otherwise be accorded . The doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain though.

Choices of procedure. The choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or where the agency has expertise in determining which procedures are appropriate, must be taken into account. However, this is a lot of deference due here.

In Baker: “… the statute accords considerable flexibility to the Minister to decide on the proper procedure, and immigration officers, as a matter of practice, do not conduct interviews in all cases. The institutional practices and choices made by the Minister are significant, though of course not determinative factors to be considered in the analysis.

N.B. Pless says that the real determinative factors here are – in practice – the importance of the decision to the applicant and the choice of procedure. An additional takeaway from Baker is that the SCC recognized 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.

Baker v. Canada (Minister of Citizenship and Immigration), SCC [1999]

Baker – who had Canadian-born dependent children – was ordered deported. She applied for an exemption from the requirement that an application for permanent residence be made from outside of Canada based on humanitarian and compassionate (H & C) considerations under S. 114(2) of the Immigration Act. Based on the notes of a junior immigration officer, a senior immigration officer concluded that there were insufficient H & C grounds to warrant processing the application in Canada. Baker was provided with the notes of the junior officer. Baker was ordered to be deported.

The duty of procedural fairness is flexible and dependent on context. The purpose of the participatory rights contained within it are to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory and social context, allowing those affected to put forward their views and evidence fully.

In this light, there are several relevant factors to consider in determining the content of the duty of fairness:

(1) The nature of the decision being made and the process followed in making it.

(2) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.

(3) The importance of the decision to the individual affected.

(4) The legitimate expectations of the person challenging the decision.

(5) The choices of procedure made by the agency itself.

On the basis of these factors (see application in Baker above), the Court concluded that the duty of procedural fairness in the case of H & C decisions was more than minimal. Nevertheless, the lack of an oral hearing did not constitute a

23

violation of the require of procedure fairness, as Baker had been allowed to produce full written submissions. At times, the duty of procedural fairness requires a written explanation for the decision. In this case, providing Baker with the notes of the junior officer was sufficient to meet this requirement.

The duty of procedural fairness also requires that decisions be made free from a reasonable apprehension of bias. In the context of immigration officers, this means a recognition of diversity, an understanding of others, and an openness to difference. The Court concluded that a reasonable and well-informed member of the community would have concluded that the reviewing officer had not approached the case with the appropriate impartiality and that there was therefore a reasonable apprehension of bias.

There is also a discussion of the reasonableness of the decision (it was found to be unreasonable) which is omitted from these notes because this is pre-Dunsmuir.

Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), SCC [1992]

The Board of Commissioners of Public Utilities was responsible, under the Public Utilities Act, for the regulation of the Newfoundland Telephone Co. (NTC). Commissioners were appointed by the Lieutenant Governor in Council and pursuant to the Act, could not be employed by, or have any interest in, a public utility. Wells, previously a municipal councilor who acted as an advocate for consumer rights, was appointed to the Board. The Board was to hold hearing following a report of the NCT’s accounts. Wells was going to sit on the panel of Commissioners. Prior to the hearing, Wells was reported to have described the pay and benefits packages of NCT executives as “ludicrous” and “unconscionable.” He also made many public statements to various news outlets expression his views.

NCT objected to Wells presence on the panel on the grounds that there was a reasonable apprehension of bias. The Board found that the Act granted it no jurisdiction to rule on one of its own members and therefore rejected the submission. The Commission ultimately made a number of orders against NCT, although none relating to the compensation of senior executives. Wells and two others formed the majority of the panel which came to this conclusion. NCT appealed the order itself and the ruling of the Board to proceed with Wells as a member of the hearing panel.

Per Nicholson, all administrative bodies owe a duty of fairness to the regulated parties who interest they must determine. This duty includes the duty to provide procedural fairness to the parties and this cannot exist where the adjudicator is biased. In fact, an unbiased appearance is an essential component of procedural fairness. The Court must therefore ask whether there was a reasonable apprehension of bias. A reasonable apprehension of bias exists where a reasonable informed bystander could reasonably perceive bias on the part of the adjudicator. A challenging party must establish that there has been a pre-judgement of the matter to such an extent that any representations to the contrary would be futile. The application of this test must be flexible. It need to be as strict when, as in the case of the Board, the administrative body is dealing mostly with policy matters falling on the legislative end of the spectrum in respect of administrative decision-making as when it is dealing with legal questions which fall at the adjudicative end of the spectrum.

In this case, while Wells was entitled to make public statements during the investigative process, once the matters reached the hearing stage, a greater degree if discretion was required. At this stage, procedural fairness required the Board members to conduct themselves so that there could be no reasonable apprehension of bias. Here, the Court found that the statements made by Wells during and after the hearing, viewed cumulatively, were sufficient to conclude that a reasonable person appraised of the situation would have found that there was a reasonable apprehension of bias.

Because the damage created by the reasonable apprehension of bias cannot be remedied, the hearing, as well as any subsequent order resulting from it, were declare void by the Court.

Note that in Quebec, there is also the Loi sur la justice administrative which creates a duty of procedural fairness. Note that we are not responsible for applying this analysis and should apply Baker, but it is important to know this exists.

Loi sur la justice administrative

24

S. 5: An administrative authority may not issue an order to do or not to do something or make an unfavourable decision concerning a permit or license or other authorization of like nature without first having,

(1) Informed the citizen of its intention and the reasons therefore;(2) Informed the citizen of the substance of any complaints of objections that concern him;

(3) Given the citizen the opportunity to present observations and, when necessary, to produce documents to complete his file.

An exception shall be made to such prior obligations if the order or the decision is issued or made in urgent circumstances or to prevent irreparable harm to persons, their property or the environment and the authority is

authorized by law to reexamine the situation or review the decision.

S. 6: An administrative authority that is about to make a decision in relation to an indemnity or a benefit which is unfavourable to a citizen must ensure that the citizen has received the information enabling him to communicate with the

authority and that the citizen’s file contains all information useful for the making of the decision. If the authority ascertains that such is not the case or that the file is incomplete, it shall postpone its decision for as long as is required to communicate with the citizen and to give th citizen the opportunity to provide the pertinent information or documents to

complete his file. In communicating the decision, the administrative authority must inform the citizen that he has the right to apply, within the time indicated, to have the decision reviewed by the administrative authority.

S. 8: An administrative authority shall give reasons for all unfavourable decisions it makes, and shall indicate any non-judicial proceeding available under the law and the time limits applicable.

C. Section 7 of the Charter and the Principals of Fundamental Justice

Sometimes, administrative decisions will infringe rights which are protected by the Charter, specifically rights under S. 7, which states that “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.” Importantly, per Singh, “everyone” refers to all persons within Canada. Where an action by the Canadian govt. or by a foreign govt. affects the S. 7 rights of an individual outside of Canada, that individual may be protected by S. 7 though it will depend on the individual showing that the Canadian govt. was acting, outside of Canada, in a manner contrary to its obligation under international law or contrary to human rights standards (Hape, Khadr).

The scope of S. 7 is important because S. 7 applies only where the administrative decision affects one of the rights protected by it.

The right to life is interpreted literally and therefore protects the right to live, incl. the right to be protected from an increased risk of death attributable to governmental action.

The right to liberty has two aspects. It protects physical liberty, that is, it protects individuals against imprisonment or the threat of imprisonment, and it also protects psychological liberty insofar as it protects the right to make decisions of a fundamental personal importance.

The right to security also includes both a physical and a psychological aspect. It protects individuals from physical suffering but also from the threat of physical suffering. It also protects the right to personal integrity.

Where S. 7 applies, there is a guarantee of procedural fairness. To determine the content of this obligation, a court will apply the test in Baker . Here, legislation cannot exclude the right to procedural fairness as in Ocean Port. This is because of the words in S. 7 “… except in accordance with the principles of fundamental justice.” These words imply that a person whose rights under S. 7 have been infringed has at minimum a right to procedural fairness. This is a constitutional right . Where the procedure is incompatible with S. 7 because it did not respect the duty of procedural fairness, the decision rendered will be automatically declared invalid as being contrary to the principles of fundamental justice.

The duty of procedural fairness under S. 7 does not guarantee the most favourable procedure. For e.g., oral hearings will not be required in all proceedings which affect a right under S. 7 per Singh and Suresh. The appropriate level of

25

procedural protection will depend on a variety of factors meaning it is a contextual analysis (i.e. the Baker analysis).

Singh v. Minister of Employment and Immigration, SCC [1985]

Singh asserted a claim to Convention Refugee (CR) status under S. 2(1) of the Immigration Act. The Minister, acting on the recommendation of the Refugee Status Advisory Committee, determined pursuant to S. 45 of the Act that Singh did not qualify for CR status. Singh applied for a redetermination of his claim by the Immigration Appeal Board under S. 70, and his application was refused. The Federal Court then denied his application for judicial review. Singh argued that the procedural mechanisms set out in the Act deprived him of his rights under S. 7 of the Charter.

The procedure for determining whether an applicant qualifies for CR status under the Act is purely administrative. Per Nicholson, there exists a general duty of fairness. The Committee and the Minister here have a duty to act fairly in carrying out their duties in the sense that decisions cannot be made arbitrarily and an effort must be made to treat equivalent cases in an equivalent fashion. The Court determined that this duty was not breached in this case, and therefore, if Singh were to succeed, it would have to be under the Charter.

The Immigration Act and its administration by the Canadian govt. are subject to the Charter as a matter falling under the authority of Parliament under S. 91(25) of the Constitution and S. 32(1) of the Charter which states that the Charter applies to Parliament and the govt. of Canada in respect of all matters within the authority of Parliament.

S. 7 states that “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. In this context, “everyone” is interpreted to mean all person in Canada, and therefore these protections applied to Singh.

To determine whether the appellant has been deprived of his rights under S. 7, it must first be determined what rights he has under the Act. The Immigration Act accords CRs the right (1) to a determination from the Minister, based on proper principles, as to whether a permit should issue entitling them to enter and remain in Canada; (2) to not be returned to a county where their life or freedom would be threatened; (3) and the right to appeal a removal order or a deportation order made against them. The Court then considers whether a deprivation of these rights constitutes a deprivation of rights protected by S. 7.

Given the potential consequences to Singh should he be denied CR status (CR status implying that the person has a well-founded fear of persecution in the country from which they are fleeing), the Charter applies to entitle him to fundamental justice in the adjudication of his status.

The Court then considers whether the procedures for the determination of CR status as set out in the Act accord with the principles of fundamental justice under S. 7. At minimum, the concept of fundamental justice includes the notion of procedural fairness. The scheme laid out in the Act was found not to provide Singh with an adequate opportunity to know the case he had to meet and to make submissions. The Court found that the infringement to his rights under S. 7 did not constitute a reasonable limit as justified in a free and democratic society under S. 1 of the Charter. Therefore, S. 71 of the Immigration Act was declared to be of no force or effect.

N.B. There was no clear majority in this case and half the justices would not actually have decided this case under the Charter.

Suresh v. Canada, SCC [2002]

Suresh was a CR who applied for Landed Immigrant (LI) status. Suresh was detained and the Canadian government commenced deportation proceedings against him, based on the opinion of the Canadian Security Intelligence Service that he was a member of the Liberation Tigers, an organization alleged to be engaged in terrorist activity in Sri Lanka and whose members were subject to torture there.

The Minister of Citizenship and Immigration notified Suresh that it was considering declaring him to be a danger to the security of Canada under S. 53(1)(b) of the Immigration Act. Based on a memorandum prepared by an immigration

26

officer, the Minister issue a decision concluding that Suresh should be deported. Suresh did have the opportunity to make written submissions to the Minister, but had never been provided with a certified copy of the memorandum, nor was he provided with an opportunity to answer the case put against him, either orally or in writing. Suresh applied for judicial review of the decision on the grounds that the Act infringed his rights under S. 7.

Deportation to torture may deprive a CR refugee of his right to life, liberty, and security of the person under S. 7. In exercising the discretion conferred on it by the Act, therefore, the Minister must conform to the principles of fundamental justice under S. 7. Where the applicant can establish that there is a risk of torture upon deportation, he is due procedural protections. S. 7 does not require the Minister to conduct a full oral hearing or judicial process. However, a CR facing deportation to torture under S. 53(1)(b) of the Act must be informed of the case to be met. Thus, subject to privilege and other valid reasons for reduced disclosure, the material on which the Minister bases its decision must be provided. Further, the refugee must be given the right to present evidence and make submission as to whether their continued presence in Canada will be detrimental to Canada under S. 19 of the Act; the risk of torture upon return; and the value of assurances of non-torture by foreign governments. Finally, the Minister must provide written reasons for their decision dealing with all relevant issues. The written reasons cannot take the form of the opinion or recommendation of an immigration officer.

In this case, Suresh showed that there was a risk of torture upon deportation and that he was denied the required procedural safeguards and that this denial could not be justified under S. 1. The case was remanded to the Minister for reconsideration.

N.B. Here it was not the legislative provision, S. 53(1)(b) of the Act that was argued to infringe S. 7 rights, but the manner in which the Minister exercised its discretion pursuant to this provision.

Charkaoui v. Canada (Citizenship and Immigration), SCC [2007]

S. 77 of the Immigration and Refugee Protection Act allows the Minister of Citizenship and Immigration to issue a certificate declaring that a foreign national or permanent resident is inadmissible to Canada on security grounds, leading to the detention of the person named in the certificate. A Certificate of Inadmissibility (CI) was issued against Charkaoui on the basis of allegations that he was a threat to the security of Canada by reason of involvement in terrorist activities.

The scheme under the Act provides that the CI and the detention are subject to review by the Federal Court in a process that may deprive the person of some or all of the information on the basis of which the CI was issued or the detention ordered. Once the CI is issued a foreign national may apply for review 120 days after a judge determines that the certificate is reasonable. Where the judge finds the certificate to be reasonable, it can become a removal order which may be enforced immediately and which cannot be appealed. Charkaoui claimed that the scheme under the Act was invalid under S. 7.

S. 7 was engaged in this case because the person named in the certificate faced detention pending the outcome of the proceedings, and the outcome of the proceedings may lead to the person being removed to a place where their right to life, liberty, or security of the person may be infringed. Further, this infringement is contrary to the principles of fundamental justice. Here, a right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case. The secrecy required by the scheme denied Charkaoui the opportunity to know the case put against him and thus to challenge the case. This in turn undermined the ability of the judge to come to a decision based on all the relevant facts and law. The scheme was therefore invalid.

D. Transition

The wholesale failure to provide reasons will constitute a breach of the duty of procedural fairness. However, per Newfoundland Nurses, the Court will not be concerned with the adequacy or sufficiency of the reasons in determining whether the duty to provide reasons has been met. The focus will be on the substantive questions, namely whether the reasons, such as they are “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes.” Therefore, Newfoundland Nurses raises a serious doubt that inadequate reasons will give rise to a violation of procedural fairness. The adequacy of

27

reasons will instead be discussed in substantive review, which is the subject of the next section of the course. The case therefore points to a reintroduction of the distinction between process and substance in administrative law which was weakened in Baker.

Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasure Council), SCC [2011]

In the context of a dispute regarding the calculation of vacation pay, an arbitrator determined that time as a casual employee was not credited toward annual leave entitlement if that employee had become permanent. The Union applied for judicial review of this determination and the reviewing court found that the reasons given by the arbitrator were insufficient and therefore the decision was unreasonable.

The purpose of reading this case is to note the following passage: “Dunsmuir confirmed that in determining whether a decision is reasonable, the inquiry for a reviewing court is about “justification, transparency and intelligibility”.  This represents a respectful appreciation that a wide range of specialized decision-makers render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decision that are often counter-intuitive to a generalist.   Dunsmuir does not stand for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result.  It is a more organic exercise — the reasons must be read together with the outcome, and serve the purpose of showing whether the result falls within a range of possible outcomes.  Reasons need not include all the arguments or details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result.  If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.  It is an unhelpful elaboration on Baker  to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness.  Any challenge to the reasoning/result of the decision should be made within the reasonableness analysis. Here, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes.”

III. Judicial Review on the Merits

A. The Standard of Review: Introduction and History

Before reviewing a decision on its merits, the appropriate standard of review must be determined. Justice Stratas offers important reflection on the standard of review. The standard of review lies at the heart of administrative law. It is the body of law that tells use when the judiciary can legitimately interfere with decision-making by the executive – a matter which is fundamental to democratic order and good governance. It requires objectivity, consistency, and predictability.

The context prior to the cases we will see in this class is the decision by Parliament that concerns of efficiency, cost, and specialization militated in favour of creating an administrative regime. This led to an expansion of the administrative state, and tasks where increasingly withdrawn from courts and allocated to the newly formed administrative bodies. Privative clauses were enacted originally to prevent courts from interfering with the substantive outcomes of administrative action, despite the fact that they rested uneasily with the concept of rule of law. Two techniques existed to determine when courts could intervene, but there were criticized as overly formalistic and malleable, allowing courts to meddle in spheres from which they had been deliberately excluded. Thus, they were largely discarded, and then the SCC came down with its decision in C.U.P.E. [1979]. C.U.P.E. established that regarding the standard of review, we had three norms:

(1) Correctness.(2) Reasonableness simpliciter.(3) Patent unreasonableness.

C.U.P.E. v. New Brunswick Liquor Board Corporation, SCC [1979]

Employees of the New Brunswick Liquor Board Corporation went on lawful strike. The NBLBC began replacing the striking employees with management personnel, contrary to S. 102(3)(a) of the Public Service Labour Relations Act

28

which provided that “the employer shall not replace the striking employees or fill their position with any other employee.” The difficulty stemmed from the fact elsewhere in the Act, a definition of “employees” did not comprise management. The NBLBC contended that the purpose of the legislation was merely to ensure that jobs remained open to the employees after the strike was over. The Public Service Labour Relation Board rejected this argument, as when the legislature granted the employees the right to strike under S. 102(3)(a), it intended to restrict the possibility of picket-line violence by prohibiting both strike breaking and picketing, an intention which would be frustrated if that argument were accepted. The Appeal Division of the Board quashed the decision of the Board, and held that S. 102(3) did not prevent management from performing the functions of striking employees.

S. 101 of the Act was a privative clause which clearly and explicitly protects the decisions of the Board made within its jurisdiction.

The Court recognizes the existence of the privative clause as well as the fact that the legislature granted a very broad power to the Board to supervise and administer the collective bargaining process under the Act, stating: “The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Considerable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met.” On this basis, the Court stated: “… not only would the Board not be required to be “correct” in its interpretation, but one would think that the Board was entitled to err and any such error would be protected from review by the privative clause in S. 101.”

The Court then asked whether the Board’s interpretation was so patently unreasonable that its construction could not be rationally supported be the relevant legislation and therefore demands intervention by the Court upon review. In this case, despite the ambiguity in the statute, it was squarely within the jurisdiction and unique expertise of the Board to interpret S.102(3) and the Court could not characterize the decision of the Board as patently unreasonable.

N.B. Pless says that it is important to remember that the use of the terms “correct” and “entitled to err” are problematic. It is not accurate to think in terms of whether the decision was correct or not. This is because if we think in these terms, it implies that when we allow an administrative tribunal to make a determination that is different than the one which would have been made by the courts, we would be accepting that the administrative body can “err” which leads to important issues for the rule of law.

The first signals of a new approach were seen in Bibeault, which first indicated that courts should adopt a pragmatic and functional approach.

U.E.S. Local 298 v. Bibeault, SCC [1988]

The case concerns a labour dispute in Quebec which occurred over whether a subcontractor had to keep the same benefits as its predecessor. The Labour Commissioner granted the application which transferred the rights and obligations of the predecessor to the new subcontractor. The Labour Court upheld the decision. Bibeault applied for judicial review of the decision which was successful. The appellant argued that the Superior Court and the Court of Appeal both erred.

The purpose of reading this case is to note the following passage: “The chief problem in a case of judicial review is determining the jurisdiction of the tribunal whose decision is impugned. In the absence of any coherent test for distinguishing what is in fact preliminary, the prerequisite concept does not assist in the inquiry. It diverts the courts from the only question they should ask, “Did the legislator intend such a matter to be within the jurisdiction conferred on the tribunal?” By limiting the concept of the preliminary or collateral question and by introducing the doctrine of a patently unreasonable interpretation, this court is giving notice of the development of a new approach to determining jurisdictional questions. Henceforth, the formalistic analysis of the preliminary or collateral question must give way to a pragmatic and functional analysis. This analysis, hitherto associated with cases of patently unreasonable error on a matter within the Court’s jurisdiction, is just as suited to a case in which an error is alleged in the interpretation of a provision limiting that jurisdiction. In both cases, the first stage of the analysis involves determining the tribunal’s jurisdiction. To do this, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.”

29

The next key development happened when the SCC released its decision in Southam in which it identified four factors for determining the standard of review to apply. It also defined a third standard of review, reasonableness simpliciter.

Canada (Director of Investigation and Research) v. Southam Inc., SCC [1997]

Southam owned the two daily papers in Vancouver. It began acquiring community and specialized papers in the area, distribution centers, and printing concerns. An application was made to the Competition Tribunal to require Southam to divest itself of certain publications on the grounds that the concentration of papers in the hands of one published was likely to substantially lessen competition in the North Shore area. The Tribunal found a substantial lessening in competition and ordered Southam to divest itself of at least one publication. The Director of Investigation and Research appealed the decision to the Federal Court of Appeal on the merits. The question is whether the Federal Court of Appeal erred in concluding that it did not owe deference to the Tribunal’s findings and in subsequently substituting its own findings.

The standard of review is a function of many factors and may fall between correctness, at the more exacting end of the spectrum, and patently unreasonable, at the more deferential end. In the absence of a privative clause, the reviewing court may review decisions taken by the Tribunal even within its own jurisdiction. Yet, the reviewing court must look to several factors to determine what limits it should observe in exercising its appellate function:

(1) The nature of the problem before the tribunal.

- The question here is whether the nature of the problem is a question of law, mixed law and fact, or a question of fact. The rule is that as the level of generality of the challenge proposition approaches complete particularity, the matter approaches unqualified application of law and draws away from the forging of new law, and hence draws night to being an unqualified decision of mixed law and fact. In this case, the Tribunal forged no new legal principle and so any error it may have made can only have been one of mixed law and fact, which suggests that some measure of deference is owed to its decision as appellate courts should be reluctant to venture into a re-examination of the conclusions of the Tribunal on questions of mixed law and fact.

(2) The applicable law properly interpreted in the light of its purpose.

- The question is whether the applicable law provides, on the one hand, for a right to appeal, or on the other, contains a private clause. The absence of a private clause counsels a less deferential posture for appellate courts than would be appropriate if a private clause were present. The objectives of the Tribunal in this case were peculiarly economic, rather than juridical. Because an appellate court is likely to encounter difficulties in understanding the economic and commercial ramifications of the Tribunal’s decisions and consequently less able to secure the fulfillment of the purpose of the Competition Act, the purpose of the Act is better served by appellate to the Tribunal’s decisions.

(3) The area of the tribunal’s expertise.

- 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, and these are matters concerning which the members of the Tribunal are likely to be far more knowledgeable than the typical judge will be. The particular dispute in this case is one that falls squarely within the area of the Tribunal’s expertise.

The SCC then stated: “A standard more deferential than correctness but less deferential than “not patently unreasonable” is required. Because several considerations, including particularly the expertise of the Tribunal, counsel deference while others suggest a more exacting form of review, the proper standard of review falls somewhere between the ends of the spectrum. The need for a third standard of review is especially clear in cases, like this one in which appeal from a tribunal’s decision lies by statutory right. Because the standard of patent unreasonableness is principally a test for determining whether a tribunal has exceeded its jurisdiction, it will rarely be the appropriate

30

standard of review in statutory appeals. However, because tribunals typically enjoy some expertise and deal with problems of a difficult and intricate nature, a standard more deferential than correctness is needed. This third standard should be whether the decision of the Tribunal is unreasonable. The test is to be distinguished from the most deferential standards of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable […] In the final result, the standard of reasonableness [simpliciter] simply instructs reviewing courts to accord considerable weight to the views of tribunals about matters with respect to which they have significant expertise.

In this case, the Court found that the Tribunal had not acted unreasonably when it decided that Southam’s daily newspapers and community newspapers were in different product markets, despite the fact that it discounted certain evidence.

The next case to be heard, Pushpanathan, offers an elaboration of the factors identified in Southam.

Pushpanathan v. Canada (Minister of Immigration and Citizenship), SCC [1998]

Pushpanathan claimed Convention Refugee status under the Immigration Act (implementing the UN Convention Relating to the Status of Refugees). His claim was never adjudicated as he was granted permanent residency through an administrative program. He was later arrested and charged with conspiring to traffic in narcotics. He plead guilty and served a sentence. When out on parole, he renewed his claim for CR status. Employment and Immigration Canada issue a conditional deportation order against Pushpanathan under the S. 27(1)(d) and 32.1(2) of the Act which render deportation conditional upon a determination that the individual is not a CR. Therefore, his claim was referred to the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board deemed that he did not qualify for CR status under Art. 1F(c) of the Convention which provides that its provisions do not apply to persons who have been guilty of acts contrary to the purposes and principles of the United Nations. Pushpanathan applied to the Federal Court for judicial review, which dismissed his claim. However, it certified as a serious question of general importance whether it was an error in law for the Board to interpret S. 1F(c) to exclude from CR status an individual guilty of a serious narcotics offence committed in Canada. The Federal Court found that there was no error in law. The question is what was the appropriate standard of review for the decision of the Board.The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must as whether the question which the provision raises was one that was intended by the legislators to be left to exclusive decision of the Board.

The Court then lays out four factors that need to be taken into account in determining the standard of review:

(1) Private clauses.

- The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. However, the presence of a full privative clause is compelling evidence that the court ought to show defence to the tribunal’s decision unless other factors strongly indicate the contrary as regards the particular determination in question.

(2) Expertise.

- If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implement the Act, then a greater degree of deference will be accorded. Nevertheless, expertise must be understood as a relative, not an absolute concept. Making an evaluation of relative expertise has three dimensions: the court must consider the expertise of the tribunal; it must consider its own expertise relative to

31

that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise.

(3) Purpose of the at as a whole, and the provision in particular.

- 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.

(4) The nature of the problem.

- Whether the nature of the problem is a matter of law or a matter of fact. Even pure question of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention.

A pragmatic and functional analysis of the  Act leads to the conclusion that, in this case, the correctness standard should be applied to the Board’s decision.  The use of the words “a serious question of general importance” in S. 83(1) of the Act is the key to the legislative intention as to the standard of review.  The general importance of the question – that is, its applicability to numerous future cases – warrants the review by a court of justice.  Moreover, the purpose of Art. 1F(c) of the Convention is to protect human rights and the Board appears to enjoy no relative expertise in that matter.  The Board’s expertise is in accurately evaluating whether the criteria for refugee status have been met and, in particular, in assessing the nature of the risk of persecution faced by the applicant if returned to his country of origin.  The relationship between the Board’s expertise and Art. 1F(c) is thus remote.  Nor is there any indication that the Board’s experience with previous factual determinations of risk of persecution gives it any added insight into the meaning or desirable future development of that provision.  The legal principle here is easily separable from the undisputed facts of the case and would undoubtedly have a wide precedential value.  The factual expertise enjoyed by the Board does not aid it in the interpretation of this general legal principle.  Furthermore, the Board itself is not responsible for policy evolution.  Finally, the absence of a strong privative clause is another factor militating against deference.

Law Society of New Brunswick v. Ryan, SCC [2003]

Ryan was a practicing member of the New Brunswick Bar. Two complaints were filed against him for engaging in allsorts of impermissible acts, including misrepresentation, forgery, and so on. The complaints were referred to the Law Society’s Discipline Committee, which decided to disbar Ryan. Ryan appealed the decision and motioned to adduce medical evidence showing that he was suffering from a psychological disability at the time. The Court of Appeal ordered that the Discipline Committee reopen the case and make a new determination after having heard the additional evidence. After considering the evidence, the Discipline Committee confirmed its earlier decision. Ryan appealed once again and the Court of Appeal allowed the appeal and substituted its own sanction, namely an indefinite suspension with conditions for reinstatement.

The pragmatic and functional approach will determine, in each case, which of these three standards is appropriate.   Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a more deferential standard of review than correctness.  A consideration of these four contextual factors leads to the conclusion that the appropriate standard is reasonableness simpliciter.

The reasonableness standard does not float along a spectrum of deference such that it is sometimes quite close to correctness and sometimes quite close to patent unreasonableness.  The question that must be asked every time the pragmatic and functional approach directs reasonableness as the standard is whether the reasons, taken as a whole, are tenable as support for the decision.   A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.   If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the

32

standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. It also means that a reviewing court should not seize on one or more mistakes which do not affect the decision as a whole.  It is important to remember that there will not often be only one “right answer” to an issue reviewed against the reasonableness standard. There is nothing unreasonable about the Discipline Committee’s decision to ban a member from practising law when his repeated conduct involved an egregious departure from the rules of professional ethics and had the effect of undermining public confidence in basic legal institutions.

The decisions in C.U.P.E., Bibeault, Southam, and Pushpanathan developed the pragmatic and functional analysis for determining the standard of review. They also established the existence three standards of review. What continues to nag the court in subsequent cases is the third standard developed in Southam , i.e. reasonableness simpliciter , and we see this in the 2nd C.U.P.E.

Toronto v. C.U.P.E. Section 79, SCC [2003]

An employee of the city of TO was charged with sexual assault. He was found guilty. After his conviction, the employee was fired. He grieved the dismissal and at his arbitration hearing the arbitrator deemed that his conviction was admissible evidence but that it did not conclusively prove that the employee had indeed committed sexual assault. No other evidence was submitted. The arbitrator thus ruled that the presumption raised by the conviction was rebutted, and therefore the employee had been dismissed without just cause.

The purpose of reading this case is to note the following passage: “Administrative law has developed considerably over the last 25 years since C.U.P.E. This evolution, which reflects a strong sense of deference to administrative decision-makers and an acknowledgment of the importance of their role, has given rise to some problem or concerns. It remains to be seen, in an appropriate case, what should be the solution to these difficulties. Should courts move to a two-standard system of judicial review, correctness and revised unified standard of reasonableness? Should we attempt to more clearly define the nature and scope of each standard or rethink their relationship and application? This is perhaps some of the work which lies ahead for courts, building on the developments of recent years law well as on the legal traditions which created the framework of the present law of judicial review.”

Over time, there has been a significant development in administrative law concerning the standard of review. The SCC, in Dunsmuir, which is now the law regarding judicial review in administrative law, recognized that the law of judicial review is animated and explained by the tension between two constitutional principles, namely legislative supremacy and rule of law. While legislative supremacy allows Parliament to vest jurisdiction over a given subject-matter to an administrative decision-maker, ensuring rule of law may require the judiciary to impose certain minimum standards, such as rational fact-finding, procedural fairness, and acceptable and defensible interpretations and application of the lawn (in effect, interfering with legislative supremacy).

Today there are only two standards of review in administrative law per Dunsmuir:

(1) Correctness.(2) Reasonableness.

Dunsmuir v. New Brunswick, SCC [2008]

Dunsmuir was employed by the DoJ in New Brunswick under the Civil Service Act. He received several warnings as well as a formal letter of reprimand stating that a failure to improve would result in disciplinary action. He was eventually sent a letter of termination, but no cause was given. He received 4 mo. pay in lieu of notice. Dunsmuir commenced the grievance process under S. 100 of the Public Service Labour Relations Act, which was denied and referred to adjudication. The adjudicator found that the termination was not disciplinary and therefore the Dunsmuir was entitled to and did not receive procedural fairness. The reviewing court applied the correctness standard and quashed the decision. The Court of Appeal determined that the proper standard was reasonableness simpliciter and because the original decision was not unreasonable, it should not have been quashed. The question here is what the appropriate standard of review is.

33

The SCC stated that there ought to exist only two standards of review:

Correctness, whereby a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determine of the decision maker; if not, the court will substitute its own view and provide the correct answer.

Reasonableness, whereby a court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.  It is a deferential standard which 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.

There is a two-step process for ascertaining the appropriate standard of review:

(1) Ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of decision.

(2) Analyze the factors making it possible to identify the proper standard of review.

- Privative clause. The existence of a privative clause is strongly suggestive of review pursuant to the reasonableness standard, as it is evidence of Parliamentary intent that an administrative decision maker be given greater deference and interference by reviewing courts be minimize.

- Purpose of the tribunal . The purpose of the tribunal is determined on the basis of an interpretation of its enabling legislation.

- Nature of the question. Where the question is one of fact, discretion or policy, or where the legal issue cannot be readily separated from the factual issue, defence usually applies automatically. A question of law that is of central important to the legal system as a whole and outside the specialized expertise of the decision maker will always attract the correctness standard. A true question of vires, a question regarding the jurisdictional lines between two or more competing specialized tribunals, and a constitutional questions regarding the division of powers will also always attract the correctness standard.

- Expertise. Deference is usually due when a decision maker is interpreting its own statute or statutes closely connected with its function with which it is particularly familiar.

Applying these factors, the Court found that the standard of reasonableness applied in this case as while the question was a question of law, it was not of central important to the legal system, and further, S. 101(1) of the Act includes a full privative clause and the nature of the regime was found to favour the standard of reasonableness. It then concluded that the decision was unreasonable.

It is important to note that reasonableness is defined as a margin or range of “acceptability and defensibility” (Dunsmuir).

There is a presumption that the reasonableness standard will apply. However, Justice Stratas notes that while the SCC in Dunsmuir gives us presumptive rules to assist in the determination of the standard of review, it also gives courts factors that it should consider when determining whether the presumption is rebutted. However, according to Stratas, it does not explain when courts should resort to the factors rather than the presumption. In earlier jurisprudence following Dunsmuir, the SCC relied on the presumption. Today, it tends to rely on the factors.

Stratas writes that the main effect of Dunsmuir has been to subject most administrative decision to reasonableness review rather than correctness review. Thus, the meaning of reasonableness is very much at the core of judicial review and should be doctrinally settle. Yet, the doctrine is a “ mash of inconsistency and incoherence .” The reasonableness standard of

34

review means different things in different cases. For e.g., the SCC often purports to engage in reasonableness review, which is a deferential standard, yet imposes its own view of the facts, or law, or both, without explanation. Reasonableness review requires courts to start with the administrative decision and inquire into the qualities that make it reasonable. This is consistent with the intent of the legislator who has chosen the administrative decision-maker to decide the merits and so reviewing courts should respect that choice by beginning with a careful examination of what the administrator decided. Oftentimes, however, the SCC foregoes this analysis and does its own analysis of the merits. Further, when conducting reasonableness review, reviewing courts must pay careful attention to the reasons for the decision-maker and must be cautious about substituting their own views of the proper outcome. However, in many cases, the reasons are so closely parsed as to constitute a “line-by-line treasure hunt for errors” while in other cases they barely consider the decision.

B. Choosing the Standard of Review: Current State of the Law

Justice Bastarache, writing about Dunsmuir, stated that a major problem had arisen in the past with respect to distinguishing between unreasonableness and reasonableness simpliciter. Reviewing the jurisprudence, he concluded that the difference between the two standards in terms of their operation appears to be illusory, citing Professor Mullan: “To maintain a position that it is only the “clearly irrational” that will cross the threshold of patent unreasonableness while irrationality simpliciter will not is to make a non-sense of the law. Attaching the adjective “clearly” to irrational is surely a tautology. Like “uniqueness,” irrationality either exists or it does not. There cannot be shades of irrationality.”

The SCC in Dunsmuir ultimately does away with reasonableness simpliciter, leaving only two standards:

(1) Correctness.

(2) Reasonableness.

There is a two-step process for ascertaining the appropriate standard of review:

(1) Ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of decision.

(2) Analyze the factors making it possible to identify the proper standard of review. N.B. Here Pless offered a review of the factors from Pushpanathan (above) and taken up in Dunsmuir (above).

What is reasonableness? From Dunsmuir: “Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” This is addressed in depth in the next section.

There is a presumption that the reasonableness standard will apply. This is because if we look at the reasoning in Dunsmuir (see above), the SCC creates a series of presumptions. In particular, the SCC further clarifies in Alberta Teachers and confirmed in McLean that “an administrative decision-maker’s interpretation of its home or closely-connected statutes should be presumed to be a question of statutory interpretation subject to deference on judicial review.” This remains, however, a reversible presumption.

Indeed, the SCC very rarely applies the correctness standard. Two of the presumptions created by Dunsmuir need to be clarified, namely the fact that questions of law which are of central importance to the legal system as well as true questions of vires will always attract the correctness standard. We see these addressed in McLean and Alberta Teachers, respectively.

McLean v. British Columbia (Securities Commission), SCC [2013]

McLean entered into a settlement agreement with the Ontario Securities Commission (OSC) in 2008 for misconduct that occurred in Ontario in 2001. In 2010, she was notified that the British Columbia Securities Commission (BCSC) was issuing a public interest order against her based on S. 16(6)(d) of the Securities Act which empowers the Commission to

35

bring proceedings in the public interest against person who have settled with the securities commissioner in another province, adopting the same prohibitions imposed on her by the OSC. Under S. 159 of the Act, all proceedings under it must be commenced no more than six years after the date of the events that gave rise to the proceedings. In issuing its order, the BCSC interpreted S. 159 as it applies to S. 161(6)(d) such that the event that triggered the six-year limitation period was the settlement agreement entered into in 2008 and not the misconduct that occurred in 2001.

McLean applied for judicial review, and the Court of Appeal, applying the correctness standard, upheld the BCSC decision. The question is whether the Court of Appeal erred in applying the correctness standard.

The purpose of reading this case is to note the following passage: “The Court of Appeal erred by applying a correctness standard of review. It is presumed that courts will defer to an administrative decision-maker interpreting its own statute or statutes closely connected to its function. This presumption is not rebutted in this case. Nor does the question fall within any exceptional category that warrants a correctness standard. Although limitation periods are generally of central importance to the fair administration of justice, the issue here is statutory interpretation in a particular context within the Commission’s specialized area of expertise. The possibility that other provincial securities commissions may arrive at different interpretations of similar statutory limitation periods is a function of the Constitution’s federalist structure and does not provide a basis for a correctness review. Finally, and most significantly, the modern approach to judicial review recognizes that courts may not be as qualified as an administrative tribunal to interpret that tribunal’s home statute. In particular, the resolution of unclear language in a home statute is usually best left to the administrative tribunal because the tribunal in presumed to be in the best position to weight the policy considerations often involved in choosing between multiple reasonable interpretations of such language.”

In this case, the Court found that the BCSC’s interpretation of the limitation period was reasonable.

N.B. Pless explains that while the presumption that the reasonableness standard will apply can be reversed, the bar is very high.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, SCC [2011]

The Information and Privacy Commissioner received complaints that the Alberta Teachers’ Association (ATA) disclosed private information I contravention of the Alberta Personal Information Protection Act. S. 50(5) of the Act provided that an inquiry must be completed within 90 days of the complaint being received unless the Commissioner notified the parties of the extension. The Commissioner took 22 mo. from the original complaint before notifying the parties of an extension. The adjudicator delegated by the Commissioner then found that the ATA had contravened the Act and the ATA applied for judicial review. The ATA claimed that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days of the complaint being received.

The Court found that the adjudicator implicitly decided that providing an extension after 90 days did not automatically terminate the inquiry. The correct standard on judicial review was reasonableness and the decision was reasonable.The purpose of reading this case is to note the following passage: “In this case, a reasonableness standard applied on judicial review. The Commissioner was interpreting his own statute and the question was within his specialized expertise. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, unless the question falls into a category of question to which the correct standard continues to apply. The timelines question does not fall into such a category: it is not a constitutional question, a question regarding the jurisdictional lines between competing specialized tribunals, a question of central importance to the legal system as a whole, nor a true question of jurisdiction or vires. Experience has shown that the category of true questions of jurisdiction is narrow and it may be that the time has come to reconsider whether this category exists and is necessary to identify the appropriate standard of review. Uncertainty has plagued the standard of review analysis for many years. The “true questions of jurisdiction” category” has caused confusion […] For now, it is sufficient to say that, unless the situation is exceptional, the interpretation by a tribunal of its home statute or statutes closely connected to its function should be presumed to be a question of statutory interpretation subject to deference on judicial review. As long as the “true question of jurisdiction” category remains, a party seeking to invoke it should be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the standard of reasonableness.

36

Another point made by the Court in this case is that the deference due to a tribunal does not disappear because its decision was implicit. Parties cannot gut the deference owed to a tribunal by failing to raise the issue before the tribunal and thereby mislead it on the necessity of providing reasons. When the decision under review concerns an issue that was not raised before the decision-maker, the reviewing court can consider reason which could have been offered in support of the decision. When a reasonable basis for an implied decision is apparent, a reviewing court should uphold the decision as reasonable.

Thus, few cases attract the correctness standard but the following are excerpts from (unassigned) cases, one in which the SCC applied the correctness standard, and one in which it refused to do so.

Alberta (Information and Privacy Commissioner) v. University of Calgary, SCC [2016]

Key passage: “Whether S. 56(3) of the FOIPP allows the review of documents over which solicitor-client privilege is claimed is a question of central importance to the legal system as a whole and outside the Commissioner’s specialized area of expertise. The question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is one that has potentially wide implications on other statutes. Therefore, the applicable standard of review is correctness for both (i) the decision that the Commissioner has the authority to require the production of records over which solicitor-client privilege is asserted, and (ii) the decision to issue the Notice to Produce Records.”

Edmonton (City) c. Edmonton East (Capilano) Shopping Centres Ltd., SCC [2016]

Key passage: “The Court of Appeal Concluded that when the decisions of a tribunal are subject to a statutory right of appeal … rather than ordinary judicial review, the standard of review on such appeals in correctness […] I disagree. In my view, recognizing issues arising on statutory appeals as a new category to which the correctness standard applies … would go against strong jurisprudence from this Court. At least six recent decision from this Court [incl. McLean] have applied a reasonableness standard on a statutory appeal from a decision of an administrative tribunal. In Saguenay, the Court confirmed that whenever a court reviews a decision of an administrative tribunal, the standard of review “must be determined on the basis of administrative law principles … regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal.””

One major question to address is whether legislation can impose a standard of review? Certain pieces of legislation, such as the Federal Courts Act and the Administrative Tribunals Act (BC) outline grounds for review:

Federal Courts Act

S. 18.1(3) Power of Federal Court: 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.(B) Declare invalid or unlawful, or quash, 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.

S. 18.1(4) Grounds of Review: The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal,

(A) Acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction.(B) Failed to observe principles of natural justice, procedural fairness or other procedure that it was required by law to

observe.(C) Erred in law in making a decision or an order whether or not the error appears on the face of the record.

(D) Based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner without regard for the material before it.

(E) Acted, or failed to act, by reason of fraud or perjured evidence.(F) Acted in any other way that was contrary to law.

Administrative Tribunals Act (BC)

37

S. 58(1): If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

S. 58(2): In a judicial review proceeding relating to expert tribunals under subsection (1),

(A) A finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,

(B) Questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, an

(C) For all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.

S. 58(3): For the purposes of subsection (2)(A), a discretionary decision is patently unreasonable if the discretion,

(A) Is exercised arbitrarily or in bad faith,(B) Is exercised for an improper purpose,

(C) Is based entirely or predominantly on irrelevant factors, or(D) Fails to take statutory requirements into account.

The question was addressed by the SCC in Khosa.

Canada (Minister of Citizenship and Immigration) v. Khosa, SCC [2009]

Khosa was a citizen of India who immigrated to Canada in 1996 at age 14. In 2002, he was found guilty of criminal negligence causing death. A removal order was issued to return him to India. Khosa appealed to the Immigration Appeal Division of the Immigration and Refugee Board, but it denied him special relief under H & C grounds pursuant to S. 67(1)(c) of the Immigration and Refugee Protection Act. On judicial review, a majority of the Federal Court of Appeal applied a reasonableness simpliciter standard and set aside the decision finding that the Board was fixated on the fact that the offence for which he was convicted related to street racing and that its decision was unreasonable.

Dunsmuir, which was released after the decision of the Federal Court of Appeal, recognized that, with or without a privative clause, a measure of deference is due where a particular decision has been allocated to administrative bodies in matters that relate to their specific role, function, and expertise. A measure of deference is appropriate whether or not the reviewing court has been given the advantage of statutory direction, explicitly or by necessary implication. The general principles of judicial review are not ousted by S. 18.1 of the Federal Courts Act which deals essentially with grounds of review for administrative actions, not standards of review.

A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the courts will not interpret grounds of review as standards of review, and will apply Dunsmuir to determine the appropriate standard of review.

The language of S. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. The provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective role of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir.

N.B. In dissent, Justice Rothstein stated that courts should respect the intention of the legislature unless the question is of a constitutional nature. From the headnote: “Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge. With respect to S. 18.1(4) of the Federal Courts Act, the language of paragraph (d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous finding of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it.” By contrast with paragraph (d), the is no suggestion that courts should defer in reviewing a

38

question that raises any of the other criteria in S. 18.1(4). Where Parliament intended a deferential standard of review in S. 18.1(4), it used clear and unambiguous language, as it has in paragraph (d) regarding facts. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.”

C. Choosing the Standard of Review: Further Considerations

The choice of the standard of review can be determinative, and despite Dunsmuir , it remains a point of contention , as will be demonstrated by the cases reviewed in this section.

We saw earlier that in Pushpanathan, after a consideration of the relevant actors, the SCC deemed that the correct standard of review was correctness and that it therefore owed no deference (see above). We should pay close attention to the reasoning of the Court on each factor. We can also contrast it with the decision in Nor-Man in which the Court accords what Pless argues is a surprising amount of deference to the arbitrator.

Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, SCC [2011]

An employee claimed that, after 20 yrs. of employment, she was entitled to a bonus week of vacation under the terms of her collective agreement. Nor-Man denied her request as it did not count casual service in calculating vacation benefits. The arbitrator deemed that this practice was contrary to the terms of the collective agreement but that the Union was estopped from claiming relief because of its long-standing acquiescence from grieving the application of the disputed provisions by Nor-Man. The Union applied for judicial review.

In this case, the Court held that the Manitoba Court of Appeal erred in reviewing the decision based on the correctness standard. The Court of Appeal had concluded that the arbitrator had misconstrued the doctrine of estoppel and that the standard of correctness was applicable since this raised a question of law that was of central importance to the legal system as a whole and did not fall within the expertise of the labour arbitrators.

The SCC stated that the standard of review in this case was governed by Dunsmuir which makes clear that “an exhaustive review is not required in every case to determine the proper standard of review.” A reviewing court should therefore inquire “whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.”

The Court found that prevailing case law establishes that arbitral awards under a collective agreement are subject, as a general rule, to the reasonableness standard of review and therefore found that the applicable standard was reasonableness and the decision of the arbitrator was reasonable: “Labor arbitrators are not legally bound to apply equitable and common law principles – including estoppel – in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations. To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.” And later: “Reviewing courts must remain alive to these distinctive features of the collective bargaining relationship and reserve to arbitrators the right to craft labour specific remedial doctrines. Within this domain, arbitral awards command judicial deference. But the domain reserved to arbitral discretion is by no means boundless. An arbitral award that flexes a common law or equitable principle in a manner that does not reasonably respond to the distinctive nature of labour relations necessarily remains subject to judicial review for its reasonableness.”

While Dunsmuir was supposed to clarify the standard of review analysis, a number of decisions since have seemed to be incongruent with it; Pless calls the following decisions anomalies.

Canada (Fisheries and Oceans) v. David Suzuki Foundation, FCA [2012]

Under the Species at Risk Act (SARA), where a given species is deemed at risk, the Minister must provide a protective statement addressing the risk and issue a protection order. The Act also allows the Minister to satisfy these obligations through provisions of other acts that are similar in nature. In this case, the Minister deemed that it was compliant with the

39

Act as it expressed its intention to exercise its discretion under other acts why granted it the discretion to protect habitats and so on.

While the Federal Court applied the reasonableness standard, the Federal Court of Appeal, applying the Dunsmuir analysis, found that the appropriate standard of review was actually correctness. It stated that, unlike Dunsmuir, the Minister was not an adjudicative tribunal specifically delegated authority by Parliament to make determinations under the Act . According to the Court, Ministers are not delegated such authority and therefore the presumption of deference does not extend to this situation.

The Court stated: “In my view, no deference is owed to the Minister as to the interpretation of the relevant provisions of the SARA or the Fisheries Act. The Minister’s interpretation of the Supreme Court’s most recent pronouncements is erroneous as it fails to consider the context in which they were developed and the reasons which may warrant deference to an administrative tribunal when it interprets its enabling statute. The reasonableness standard of review does not apply to the interpretation of a statute by a minister responsible for its implementation unless Parliament has provided otherwise. I thus conclude […] that where an application for judicial review of a decision as to the implementation of the SARA is based on an allegation that the Minister has misinterpreted a provision […] the Minister’s interpretation must be reviewed on a standard of correctness. The courts owe no deference to the Minister in that respect.”

Finally, “The Minister is inviting this Court to expand the above-described Dunsmuir analytical framework and presumption to all administrative decision-makers who are responsible for the administration of a federal statute. I do not believe that Dunsmuir and the decisions of the Supreme Court of Canada which followed Dunsmuir stand for this proposition. What the Minister is basically arguing is that the interpretation of the SARA and of the Fisheries Act favoured by his Department and by the government’s central agencies, such as the Department of Justice, should prevail. The Minister thus seeks to establish a new constitutional paradigm under which the Executive’s interpretation of Parliament’s laws would prevail insofar as such interpretation is not unreasonable. This harks back to the time before the Bill of Rights of 1689 where the Crown reserved the right to interpret and apply Parliament’s laws to suit its own policy objectives. It would take a very explicit grant of authority from Parliament in order for this Court to reach such a far-reaching conclusion.”

N.B. Pless asks us to reflect on whether we are as skeptical as he is regarding this decision and to question whether we believe there are good reasons not grant deference to the Minister in interpreting its constitutive statute. He suggests that we think of Dicey here.

Pfizer Canada Inc. v. Health Canada, FC [2014]

Key point: In this case, the Court emphasizes the lack of coherence at the Federal Court of Appeal regarding whether Ministers’ decisions in interpreting their constitutive statutes are subject to the reasonableness standard must thus be accorded deference upon review. Because of this inconsistency and the divergence in the jurisprudence, the Court in Pfizer signals that it does not consider itself to be bound by the decision in Suzuki.

A final important consideration is whether it is possible to segment the issues in order to find distinct standards of review. This will be an issue which will come up again in the context of the judicial review of administrative decisions affecting Charter rights (below).

Mouvement laïque québécois v. Saguenay (City), SCC [2015]

Simoneau attended public meetings of the municipal council of the City of Saguenay. Before the start of each meeting, the mayor would recite a prayer. There were also religious symbols in the council chambers. Eventually, a by-law was adopted regulating the recitation of the prayer. Simoneau brought a claim to the CHRT with the help of the Mouvement laïque Québécois (MLQ) alleging that his rights under the Quebec Charter were being infringed and asking the CHRT to declare the by-law to be inoperative.

The CHRT granted the application, finding that the prayer was, when considered in light of its context, religious in nature and that the City and its mayor, by having it recited, were showing a preference for one religion to the detriment of others, which constituted a breach of the state’s duty of neutrality. The Tribunal also concluded that the prayer and the exhibiting

40

of religious symbols resulted in an interference with S’s freedom of conscience and religion that was more than trivial or insubstantial, and that the interference was discriminatory. It declared the by-law inoperative and invalid.

The Court of Appeal allowed the appeal. In its opinion, the question of the religious neutrality of the state was a matter of importance to the legal system that required the application of the standard of review of correctness. It held that the prayer at issue expressed universal values and could not be identified with any particular religion, and that the religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality. According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion. The interference, if any, was trivial or insubstantial.

According to the majority in Saguenay: “In the instant case, an important question concerns the scope of the state’s duty of religious neutrality that flows from the freedom of conscience and religion protected by the Quebec Charter. The Tribunal and the Court of Appeal each dealt with this question of law […] Although I agree with the Tribunal on this point, I am of the opinion that, in this case, the Court of Appeal properly applied the correctness standard on this question. However, it was not open to the Court of Appeal to apply that standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard. For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise […] The only requirement is that its reasoning be transparent and intelligible. Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

N.B. What the focus on this decision is actually the dissent of Justice Abella in which she decries segmentation. Pless, on the other hand, disagrees with Abella because he says that he argument is unrealistic and that, in effect, we have to segment decisions and this is done in practice anyways based on the way in which cases are plead.

In her dissent, Justice Abella wrote: “… using different standards or review for each different aspect of a decision is a departure from our jurisprudence that risks undermining the framework for how decisions of specialized tribunals are generally reviewed. In Council of Canadians with Disabilities v. VIA Rail Canada Inc. this Court expressly rejected the proposition that a decision of a tribunal can be broken into its many component parts and reviewed under multiple standards of review. And in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), we confirmed that the reasons of a specialized tribunal must be read as a whole to determine whether the result is reasonable: see also Loyola High School v. Quebec (AG) […] My final concern is a practical one. What do we tell reviewing courts to do when they segment a tribunal decision and subject each segment to different standards of review only to find that those reviews yield incompatible conclusions? How many components found to be reasonable or correct will it take to trump those found to be unreasonable or incorrect? Can an overall finding of reasonableness or correctness ever be justified if one of the components has been found to be unreasonable or incorrect? If we keep pulling on the various strands, we may eventually find that a principles and sustainable foundation for reviewing tribunal decisions has disappeared. And then we will have thrown out Dunsmuir’s baby with the bathwater.

The final point addressed in this section is the circumstance in which the same tribunal answers the same question in distinct, but reasonable, ways depending on the case. The question is whether, under such circumstances, a reviewing court can intervene and make a determination on the question.

Domtar Inc. v. Quebec, SCC [1993]

In this case, an employee was injured in a workplace accident and wanted compensation under S. 60 of the Act Respecting Industrial Accidents and Occupational Diseases for the full period of his disability, 14 days. Domtar awarded the employee compensation for three days, as the plant was temporarily closing after that time. The CSST ruled that the employee was entitled to the full 14 days, and on appeal the Commission d’appel en matière des lésions professionelles (CALP) also found for the employee. While the Court of Appeal accepted that this decision was not patently unreasonable, it observed that with respect to the interpretation of S. 60 it was in the interest of justice to resolve the conflicting decisions of the CALP and the Labor Court (as conflicting decisions had been issued). Thus, abandoning traditional curial deference, the Court of Appeal intervened to resolve the unstable situation and held that under S. 60 an employer is not required to pay an injured employee when there is a plant closure. The issue on appeal to the SCC is

41

whether, in the absence of a patently unreasonable error, conflicting decisions by administrative tribunals may give rise to judicial review.

The SCC decided that: “When decisions made within jurisdiction are not patently unreasonable, the principles underlying curial deference should prevail.   Consistency in the application of the law is a valid objective but is not an absolute one .  This objective must be pursued in keeping with the decision-making autonomy and independence of members of the administrative bodies.  Inquiring into a case of decision-making inconsistency and solving it where there is no patently unreasonable error means altering the institutional relationship between administrative tribunals and courts.  Such intervention by a court of law risks eliminating the decision-making autonomy, expertise and effectiveness of the administrative tribunal and risks, at the same time, thwarting the original intention of the legislature, which has already determined that the administrative tribunal is the one in the best position to rule on the disputed decision.  Administrative tribunals have the authority to err within their area of expertise, and a lack of unanimity is the price to pay for the decision-making freedom and independence given to the members of these tribunals.  Recognizing the existence of a conflict in decisions as an independent basis for judicial review would constitute a serious undermining of those principles given that administrative tribunals and the legislature have the power to resolve such conflicts themselves.”

N.B. Pless does not agree with this position (save for the final sentence). Citing Mavi [SCC 2011]: “ It is certainly not to be presumed that Parliament intended that administrative officials be free to deal unfairly with people subject to their decisions ” he asks why this reasoning should not be extended to presume the Parliament also did not intend to authorize administrative decisions makers to make inconsistent decisions. However, this approach was confirmed in in Wilson [SCC 2016]: “Applying that standard, the Adjudicator’s decision was reasonable and consistent with the approach overwhelmingly applied to these provisions since they were enacted. It is true that a handful of ajudicators have taken a different approach to the interpretation of the Code, but as this Court has repeatedly said, this does not justify deviating from a reasonableness standard [Toronto v. C.U.P.E., Dunsmuir].” Also note that in Wilson, Justice Abella proposed a single standard system in obiter which Cromwell, Côté, Brown dissented in.

D. Applying the Reasonableness Standard

Reasonableness is about the substantive legality of administrative decisions. So, how is the reasonableness standard actually applied?

According to Dunsmuir: “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned most with the existence of justification, transparency, and intelligibility within the decision-making process and with whether the decision falls with a range of possible acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which 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.”

What does deference mean? Per Dunsmuir: “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. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.”

In Béton Brunet, QCCA [2015], Justice Morrissette wrote: “Le rôle du premier décideur n’est pas d’emporter l’adhésion enthousiaste de toutes les parties qui s’affrontent devant lui mais d’apporter une solution raisonnable à un différend qui survient en application de la loi. Or, on ne mesure pas toujours tout ce qu’implique ce principe pourtant fermement ancré en droit administratif. Il implique notamment ceci. Dès lors qu’une pluralité de critères est en jeu, que chacun d’entre eux relève en priorité de l’appréciation de ce décideur, et qu’il se dégage de part et d’autre du litige quelque chose comme une équipollence [équivalence] des propositions , il faut accepter qu’un «   résultat faisant partie des issues possibles   » puisse consister en une chose de même que son contraire . ”

42

Thus, reasonableness is not concerned just with reasons, but also with outcomes, meaning that there is a two-step approach to evaluating the reasonableness of a decision:

(1) Reasons must be justified, transparent, and intelligible.

(2) Outcomes must be defensible in terms of facts and law.

Justification. The decision must be justified. However, this does not necessarily imply that decisions must be given in every case. Where there is no duty to give reasons per Baker, a court may be satisfied simply through an analysis of the statutory provisions that the result is among the range of possible outcomes.

Transparence. This does not refer to procedure, in the sense of access to information, but rather transparence in the reasoning process, that is, there cannot be hidden motives underlying the decision.

Intelligibility. This may refer to clarity, but most often requires an analysis of whether the conclusion are coherent with the reasoning.

Defensible in terms of facts and law. This prevents courts from granting deference to a decision which while justified, transparent, and intelligible is not based in the facts. Defensibility in law is related to the guiding principle here is the fact that reasonableness often admits of several solutions: “Reasonableness is a deferential standard animated by the principles that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result” (Dunsmuir). It is the courts that determine the range of defensible outcomes (see Abraham below).

Then, the SCC, in Khosa, brought an important clarification when it stated: “Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes.” This means that even where the reviewing court disagrees with the administrative decision-maker, it cannot substitute its own decision unless the decisions was neither transparent not intelligible and did not fall within the range of reasonable outcomes. In Khosa, the Court opted not to interfere with the administrative decision, but it should be noted that there was a strong dissent by Fish who argued that in emphasizing a single factor in its analysis, the conclusion of the Board that there was insufficient evidence to determine that Khosa was not a risk to the public was incorrect and unreasonable; “deference ends where unreasonableness begins.”

The above is crucial in practice according to Pless, because otherwise it would be all too easy for the applicant to claim in every instance that the evidence should have been weighed differently by the administrative decision-maker. In practice, he explains that this actually happens all the time, to which the defendants respond by pointing out that the applicant is asking to court to reweigh the evidence.

One note is that in Khosa, the SCC stated that “Reasonableness is a single standard that takes its colours from context.” Thus, we have a single standard which yield a range of acceptable outcomes. Pless has asked us to think about whether this stands up to scrutiny.

We can see all the previous jurisprudence in this course to examine how the SCC has applied the reasonableness standard in each of Dunsmuir, Khosa, and Alberta Teachers’. But first, a good overview of the approach is given by Justice Stratas in Abraham.

Canada (AG) v. Abraham, FCA [2012]

“Reasonableness review is assuming greater and greater prominence in Canadian administrative law and therefore it is important to transform reasonableness review from a vague and impressionistic notion into a tangible and practical tool.

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.” The discussion of a range of possible,

43

acceptable outcomes, recognizes that decision-makers “have a margin of appreciation within that range. Reasonableness is a single standard of review, but asserting a range of possible, acceptable outcomes begs the question as to how narrow or broad the range should be in a particular case. Per Khosa, reasonableness, while a single standard, “takes it colours from the context.” Thus, the context affects the breadth of the ranges. The range of acceptable and rational solutions will depend on all relevant factors surrounding the decision-making (Catalyst Paper), for example, how dependent the decision was on factual and policy considerations versus legal considerations. Thus, where the decision-maker is considering a discretionary matter that has greater legal content, the range of possible, acceptable outcomes may be narrower than the those in factual or policy matters,

Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad. In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower.”

N.B. The takeaway is that the more deference is due to the decision-maker, the broader the range of acceptable outcomes.

Dunsmuir v. New Brunswick, SCC [2008]

Dunsmuir was employed by the DoJ in New Brunswick under the Civil Service Act. He received several warnings as well as a formal letter of reprimand stating that a failure to improve would result in disciplinary action. He was eventually sent a letter of termination, but no cause was given. He received 4 mo. pay in lieu of notice. Dunsmuir commenced the grievance process under S. 100 of the Public Service Labour Relations Act (PSLRA), which was denied and referred to adjudication. The adjudicator found that the termination was not disciplinary and therefore the Dunsmuir was entitled to and did not receive procedural fairness. The reviewing court applied the correctness standard and quashed the decision. The Court of Appeal determined that the proper standard was reasonableness simpliciter and because the original decision was not unreasonable, it should not have been quashed. The question here is what the appropriate standard of review is.

Application:

“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.”

Nature of the question. The specific question was whether provisions of the PSLRA permitted the adjudicator to inquire into the employer’s reason for dismissing an employee with notice or pay in lieu of notice. This is a question of law. However, it is not one that is of central importance to the legal system and outside the specialized expertise of the adjudicator. This suggests reasonableness.

Privative clause. The adjudicator was appointed and empowered under the PSLRA which contains a full privative clause stating that the declaration or ruling of an adjudicator will be final and shall not be questions or reviewed in any court. This gives a strong individuation that the reasonableness standard will apply.

Expertise. The Court has often recognized the relative expertise of labour arbitrators in the interpretation of collective agreements (C.U.P.E.). Further, the adjudicator was interpreting his enabling statute. Adjudicators acting under the PSLRA can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions. This also suggests reasonableness.

Legislative purpose. The PSLRA establishes a time- and cost-effective method of resolving employment disputes. It provides an alternative to judicial determination. S. 100 of the PSLRA not only defines the powers of the adjudicator, but

44

it also provides remedial protection for employees who are not unionized. The remedial nature of S. 100 and its provision for timely and binding settlements of disputes also imply that reasonableness review is appropriate.

The SCC thus concluded that the reasonableness standard applied and following an analysis, the Court deemed that the interpretation of the adjudicator was unreasonable in the context of the legislative wording and the larger labour context within which the decision was embedded. Further, because the appellant was a contractual employee and could per the Civil Service Act only be dismissed in accordance with the ordinary rules of contract, it was unnecessary for the adjudicator to consider any public law duty of procedural fairness and the respondent was within its rights to dismiss the appellant with pay in lieu of notice without affording him a hearing.

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, SCC [2011]

The Information and Privacy Commissioner received complaints that the Alberta Teachers’ Association (ATA) disclosed private information I contravention of the Alberta Personal Information Protection Act. S. 50(5) of the Act provided that an inquiry must be completed within 90 days of the complaint being received unless the Commissioner notified the parties of the extension. The Commissioner took 22 mo. from the original complaint before notifying the parties of an extension. The adjudicator delegated by the Commissioner then found that the ATA had contravened the Act and the ATA applied for judicial review. The ATA claimed that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days of the complaint being received.

Application:

The narrow question in this case was whether the inquiry automatically terminated as a result of the extension of the 90-day period only after the expiry of that period.

Because this question involves the interpretation of S. 50(5) of the Act, which is the home statute of the Commissioner, the Court reasons that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it shall have particular familiarity.” This principle, it held, applies unless the interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, namely constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the expertise of the adjudicator, or questions regarding the jurisdictional lines between two or more competing tribunals and true questions of jurisdiction or vires. In this case, the Court held that this question did not fit into any of the above categories (see Alberta Teachers’ above for a discussion on true questions of jurisdiction).

Therefore, because the interpretation of S. 50(5) of the Act related to the interpretation of the Commissioner’s home statute, was within his expertise, and did not raise issue of general legal importance or true jurisdiction, his decision that an inquiry does not automatically terminate as a result of extending that 90-day period only after the expiry of that period was found to be reviewable on the reasonableness standard.

Importantly, the Court clarified: “The majority reasons in Dunsmuir do not recognize variable degrees of deference within the reasonableness standard of review […] Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted.  The judicial review is simply concerned with the question at issue.  A review of a question of statutory interpretation is different from a review of the exercise of discretion.  Each will be governed by the context.  But there is no determination of the intensity of the review with some reviews closer to a correctness review and others not.”

As the issue of the timeline was not raised before the adjudicator and the decision was merely implicit, it is necessary to address how a reviewing court is to apply the reasonableness standard in such circumstances. Because the decision was implicit, it is impossible to refers to the justification, transparency, and intelligibility within the decision-making process of the tribunal.

 However, the direction that a reviewing court should give respectful attention to the reasons “which could be offered in support of a decision” is apposite when the decision concerns an issue that was not raised before the decision maker. In such circumstances, it may well be that the administrative decision maker did not provide reasons because the issue was not raised and it was not viewed as contentious.  If there exists a reasonable basis upon

45

which the decision maker could have decided as it did, the court must not interfere. “Parties cannot gut the deference owed a tribunal by failing to raise the issue before the tribunal and thereby mislead the tribunal on the necessity of providing reasons.”

In this case, he Court found that the Commissioner and his delegated adjudicators had considered the timeline issue under S. 50(5) of the Act on many occasions and had provided a consistent analysis. Thus, this allowed the Court to determine without difficulty that a reasonable basis existed for the adjudicator’s implied decision in this case, that is, the Court deemed it safe to assume that the numerous and consistent reasons in other decisions would have been the reasons of the adjudicator in this case.

N.B. The broader conclusion here is that when a decision is implicit or also when there is no duty to provide reasons or when only limited reasons are required, it is entirely appropriate for courts to consider reasons that could be offered for the decision when conducting a reasonableness review.

Canada (Minister of Citizenship and Immigration) v. Khosa, SCC [2009]

Khosa was a citizen of India who immigrated to Canada in 1996 at age 14. In 2002, he was found guilty of criminal negligence causing death. A removal order was issued to return him to India. Khosa appealed to the Immigration Appeal Division of the Immigration and Refugee Board, but it denied him special relief under H & C grounds pursuant to S. 67(1)(c) of the Immigration and Refugee Protection Act (IRPA). On judicial review, a majority of the Federal Court of Appeal applied a reasonableness simpliciter standard and set aside the decision finding that the Board was fixated on the fact that the offence for which he was convicted related to street racing and that its decision was unreasonable.

Application:

The Court begins by applying the factors enumerated in Dunsmuir.

Privative clause. S. 162(1) of the IRPA contains a privative clause granting the Board sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, brought before it under the IRPA. The Act contains no statutory right of appeal.

Legislative purpose. The IRPA creates the Immigration Appeal Division and grants it the power to determine a wide range of appeals under the Act. A decisions of the IAD is reviewable only if the Federal Court grants leave to commence judicial review.

Nature of the question. The Act additionally has the power under S. 67(1) to grant exceptional relief if it is satisfied that, at the time the appeal is disposed of, sufficient humanitarian and compassionate grounds exist to warrant special relief, which is what Khosa was claiming. S. 67(1) calls for a fact-dependent, policy-driven assessment by the IAD itself.

Expertise. The IAD has the advantage of conducting the hearings and assessing the evidence presented, including the evidence of Khosa himself, and IAD members have considerable expertise in determining appeals under the IRPA.

Based on this analysis, the Court determined that reasonableness was the appropriate standard of review. Reasonableness, the Court holds, is a single standard that takes its colour from context and as such the reviewing court cannot substitute its 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.

In this case, there was a majority and a minority decision by the IAD. Both disclose with clarity the consideration in support of both points of view, and the reasons for the disagreement as to outcome, namely a disagreement over Khosa’s expression of remorse. The SCC states that this is a factual dispute that should be resolved by the IAD and no reweighed in the courts. In terms of transparent and intelligible reasons, the majority considered each of the Ribic factors (re: H & C) and rightly observed that they were not exhaustive and that the weight attributed to them will vary case by case. The weight to be given to Khosa’s evidence of remorse and his prospects for rehabilitation depended on an assessment of his evidence in light all circumstances of the case. However, the IAD was required to reach its own conclusions based on its appreciation of the evidence, and it did so. Thus, the SCC deemed the decision to be reasonable.

46

N.B. In dissent, Fish essentially calls out the weighing of the evidence by the IAD, calling it unreasonable.

E. Reasonableness Standard: Further Considerations

This section addresses two issues.

First, there are instances in which an administrative decision may have both reasonable and unreasonable elements. How must a court analyze such a decision? In theory, there are several possibilities.

Where one element is found to be unreasonable, the entire decisions is found to be unreasonable.

Where one element is found to be reasonable, the entire decision is found to be reasonable.

The decision should be considered as a whole and there should be a weighing of the reasonableness of the decision.

On this last point, we need to consider Ryan and Singh v. Canada (unassigned – used as an example, but not be considered as authoritative precedent). We can also look at Abella in dissent in Saguenay.

Law Society of New Brunswick v. Ryan, SCC [2003]

Key passage: “A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.  If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. This does not mean that every element of the reasoning given must independently pass a test for reasonableness.  The question is rather whether the reasons, taken as a whole, are tenable as support for the decision.  At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.  Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.”

Singh v. Canada (Citizenship and Immigration, FC [2010]

The Tribunal refused a request by Singh, the reasons, taken from the Computer Assisted Immigration Processing System, being the following: “PA IS A 42 YR OLD FARMER. HAS A FEW DAYS TRAVEL IN SE-ASIA IN 2006-07. NO TRAVEL TO EUR, UK OR NORTH AMERICA EVER. HAS CLOSE FAMILY TIES IN CDA AND PROVIDES NO SATISFACTORY PROOF OF HIS ELIGIBILITY OR INVITE FROM THE QUEBEC INVESTOR PROGRAM. CANNOT ESTABLISH HIS FLUENCY IN ENGLISH/FRENCH THAT WILL ENABLE HIM TO MAKE A FRUITFUL VISIT EVEN IF HE WERE A POTENTIAL INVESTOR. I AM NOT SATISFIED THAT THE APPLICANT WILL DEPART CANADA AT THE END OF THE PERIOD AUTHORIZED FOR STAY. REFUSED.”

Key passage: “The defendant argues that the applicant's travel experience was considered as a neutral factor by the officer. I do not agree. While the applicant traveled in 2006- 2007 to Southeast Asia, the officer gave no reasons why the absence of travel to EUR, UK or North America should be held against the applicant. I find that the decision read as a whole clearly indicates that it was considered as a negative factor without reasonable explanations.”

Mouvement laïque québécois v. Saguenay (City), SCC [2015]

In her dissent, Justice Abella wrote: “… using different standards or review for each different aspect of a decision is a departure from our jurisprudence that risks undermining the framework for how decisions of specialized tribunals are generally reviewed. In Council of Canadians with Disabilities v. VIA Rail Canada Inc. this Court expressly rejected the

47

proposition that a decision of a tribunal can be broken into its many component parts and reviewed under multiple standards of review. And in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), we confirmed that the reasons of a specialized tribunal must be read as a whole to determine whether the result is reasonable: see also Loyola High School v. Quebec (AG) […] My final concern is a practical one. What do we tell reviewing courts to do when they segment a tribunal decision and subject each segment to different standards of review only to find that those reviews yield incompatible conclusions? How many components found to be reasonable or correct will it take to trump those found to be unreasonable or incorrect? Can an overall finding of reasonableness or correctness ever be justified if one of the components has been found to be unreasonable or incorrect? If we keep pulling on the various strands, we may eventually find that a principles and sustainable foundation for reviewing tribunal decisions has disappeared. And then we will have thrown out Dunsmuir’s baby with the bathwater.

Second, as seen above, Dunsmuir requires administrative decision-makers to justify their reasons. However, we must ask whether this means that explicit reasons must be given in each case. In Alberta Teachers’ (above) we saw the way in which the courts will deal with matters when the administrative decision was implicit. In VIA Rail, the court deals with a statutorily imposed duty to give reasons and the adequacy of the reasons.

VIA Rail Canada Inc. v. National Transportation Agency, FCA [2011]

A team of wheelchair athletes traveled on a VIA Rail train, each accompanied by an attendant who travelled for free based on a tariff system. After encountering accessibility-related difficulties, the group made a complaint to the National Transportation Agency, which found in favour of the group. Among other corrective measures, it required VIA to remove from its Special and Joint Passenger Tariff the requirement that attendants be capable of assisting disabled persons in getting on and off trains, deeming that this requirement constituted an undue obstacle to the mobility of disabled persons. VIA appealed this decision.

The Guidelines issued under the National Transportation Act required the Agency to provide reasons for its decisions. At issue was whether the reasons provided by the Agency were adequate. The Court determined that the reasons were inadequate.

Key passage: “The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out10 and must reflect consideration of the main relevant factors.”

In this case, the adequacy of the Agency’s reasons must be measured with particular reference to the extent to which they provide VIA with sufficient guidance to formulate their tariff without running afoul of the Agency and to the extent to which the give effect to VIA’s right of appeal by providing the court with sufficient insight into its reasoning process and the factors that it considered. Here, the conclusion that the tariff was an obstacle is not supported by sufficient indication of the reasoning process engaged in by the agency. The reasons provide no intimation of what constitutes an obstacle to the mobility of a disabled person nor were they sufficiently clear. In its reasons, it does not articulate how the requirement that an attendant be capable of assisting the disabled person with whom they are travelling to board and deboard the train constitutes an obstacle. Because it did not answer this question, the Agency erred in law. There were further inconsistencies which supported the court’s reasoning.

F. Reasonableness Standard and Discretionary Decisions

It is important to be able to identify discretionary decisions from other administrative decisions because we have to understand why and how courts show more deference toward discretionary decisions. We also have the understand that despite the significant deference due, it is still possible to review a discretionary decision.

Discretionary decisions are described in Baker: “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of

48

boundaries.  Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law.  Review of the substantive aspects of discretionary decisions is best approached within the pragmatic and functional framework defined by this Court’s decisions, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions.  Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.” The essential point here is the intention of the legislator to allow the decision-maker to choose between several options. This is in contrast with decisions which are constrained by conditions provided for in the law.

What is the appropriate standard of review for discretionary decisions? Per Dunsmuir, where the question is one of fact, discretion or policy, or where the legal issue cannot be readily separated from the factual issue, deference usually applies automatically.

N.B. Pless asks us to reflect on whether this approach is justified. Think about whether it is not precisely the decisions which are discretionary which are the ones we want to allow our courts to supervise more closely. To reinforce this point, think about Roncarelli and Dicey (see above) and the notion of rule of law.

Roncarelli v. Duplessis, SCC [1959] Key passage: “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 or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. ‘Discretion’ necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its limits or objects is just as objectionable as fraud or corruption.”

Given that the standard of review is reasonableness, when can a court interfere with a discretionary decision? In the past, the following were evidence of abuse of discretion and thus considered (exhaustive) grounds for review:

Unauthorized object or purpose, irrelevant consideration.

- Determined through an interpretation of the legislation which defines considerations which are relevant or not. Note that certain Federal Court judgments suggest that a decision may be reasonable even when it took into account irrelevant considerations provided that the decision is not primarily founded on these.

Omission of relevant considerations.

- Failure to take into account relevant considerations identified by the legislation, and this may possibly extend to relevant considerations issued from jurisprudence.

Fettering of discretion.

- Discretionary powers must be exercised in a manner unconstrained from factors external to the legislative scheme. Per Baker: “guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by [an Act].” Where they exist, the decision-maker may not act in a manner contrary to the guidelines without a valid justification for doing so. Note that failure to exercise discretion may also be considered an abuse of discretionary power in the sense that the decision-maker should not mechanically or blindly follow guidelines.

Bad faith. - Very difficult to prove, especially as it is presumed that decision-makers act in good faith.

Arbitrariness, unreasonableness, irrationality.

49

- Pless put up a cartoon which jokes that the decision must be so irrational that the moment the decision-maker renders it they turn into a toad and he says that this is basically the essence of this grounds for review.

There is currently debate as to whether these are grounds for review per se or if they are rather indicators of unreasonableness. According to Pless, the latter is correct. Justice Stratas on the contrary believes that these no longer stand, and that significant deference is owed in the face of discretionary decisions.

Today, as stated above, the standard of review is reasonableness, and note that this is the case even where a discretionary decision affects a Charter right although here, since Doré, there is an additional balancing to be done by the courts following Oakes. We will see this in the next section. The cases below are examples of application.

Baker v. Canada (Minister of Citizenship and Immigration), SCC [1999] Baker – who had Canadian-born dependent children – was ordered deported. She applied for an exemption from the requirement that an application for permanent residence be made from outside of Canada based on humanitarian and compassionate (H & C) considerations under S. 114(2) of the Immigration Act. Based on the notes of a junior immigration officer, a senior immigration officer concluded that there were insufficient H & C grounds to warrant processing the application in Canada. Baker was provided with the notes of the junior officer. Baker was ordered to be deported.

The case raised a serious question of general importance which was certified for appeal, namely the approach to be taken to children’s interests when reviewing the exercise of the discretion conferred by the Act and Regulations. To address this question, the Court also addressed whether the H & C decision was improperly made.

Application:

The Act and the Regulations made under it delegate considerable discretion to the Minister in deciding whether an exemption should be granted on H & C considerations, stating “the Minister… us authorized to” grant an exemption “where the Minister is satisfied that” this should be done “owing to the existence of compassionate or humanitarian considerations.” The Court deemed that this language signaled an intent by Parliament to leave considerable choice to the Minister.

The concept of discretion refers to decisions where the law does not dictate a specific outcome or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. Discretionary decisions must be made within the bounds of the jurisdiction conferred by the statute, but considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of their jurisdiction.

The Court then applies the pragmatic and functional approach and evaluated the correct standard of review to apply within the three-standard framework that existed at the time. Pursuant to this analysis, the Court finds that the appropriate standard was reasonableness simpliciter. The Court then considers whether the approach taken by the immigration officer to the interests of children when reviewing an H & C decision was unreasonable.

The Court first looked at the notes of the officer which read: “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.” Based on these notes the Court found that the officer was entirely dismissible of the interests of the children that this failure to give serious weight and consideration to their interest constituted an unreasonable exercise of discretion, as S. 114(2) of the Regulations clearly stated that the decision-maker had to exercise is power upon “compassionate and humanitarian considerations” and thus show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner.

50

Determining whether the approach taken by the immigration officer was within the boundaries set out by the words of the statute and the values of administrative law requires a contextual approach, as is taken to statutory interpretation generally. A reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children.  Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. International law is also suggestive of the importance of considering the interest of children when making a compassionate and humanitarian decision as Canada is a signatory to the Convention on the Rights of the Child.

The guidelines issued by the Minister to the immigration officers further recognize and reflect the values and approach articulated in the Convention. Immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections.

The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the “humanitarian” and “compassionate” considerations that guide the exercise of the discretion.  Because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.

Canada (Minister of Citizenship and Immigration) v. Khosa, SCC [2009] See above. As far as Khosa goes here Pless wants us to understand the disagreement between the majority and the dissent.

In dissent, Justice Fish noted that the IAD was tasked with looking at “all the circumstances of the case” in order to determine whether “sufficient H & C considerations” existed to warrant relief from a removal order” and was bound in performing that function to consider the Ribic factors. Despite all the evidence before the IAD, the majority seized upon a single consideration, namely the fact that Khosa denied he had been street racing, and only passing allusion was made to other evidence. His denial was the only consideration, in the view of Justice Fish, that the IAD majority considered with respect to the Ribic factors: “Manifestly, this solitary fact was the decisive element – if not the sole basis – upon which the majority of the IAD denied Mr. Khosa’s basis for all humanitarian and compassionate relief […] The IAD’s cursory treatment of the sentencing judge’s findings on remorse and the risk of recidivism are particularly troubling. While findings of the criminal courts are not necessarily binding upon an administrative tribunal … it was incumbent upon the IAD to consider those findings and explain the basis of its disagreement with the decision of the sentencing judge […] it is clear that the majority of the IAD had some kind of fixation … with this piece of evidence…” On this basis, Justice Fish considered the decision to be unreasonable.

Note that discretion must also be exercised in accordance with the Charter. We see this in Suresh.

Suresh v. Canada (SCC [2002] Suresh was a CR who applied for Landed Immigrant (LI) status. Suresh was detained and the Canadian government commenced deportation proceedings against him, based on the opinion of the Canadian Security Intelligence Service that he was a member of the Liberation Tigers, an organization alleged to be engaged in terrorist activity in Sri Lanka and whose members were subject to torture there.

The Minister of Citizenship and Immigration notified Suresh that it was considering declaring him to be a danger to the security of Canada under S. 53(1)(b) of the Immigration Act. Based on a memorandum prepared by an immigration officer, the Minister issue a decision concluding that Suresh should be deported. Suresh did have the opportunity to make written submissions to the Minister, but had never been provided with a certified copy of the memorandum, nor was he provided with an opportunity to answer the case put against him, either orally or in writing. Suresh applied for judicial review of the decision on the grounds that the Act infringed his rights under S. 7.

Under an analysis of the Pushpanathan factors, the Court concluded that Parliament intended to grant the Minister a broad discretion in issuing a S. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision.

51

However, this deferential standard will not prevent human rights issues from being fully addressed as any decision to deport must meet the constitutional requirements of the Charter.

Weighing relevant factors in deportation decisions is not a function of the reviewing courts. Baker confirms that the courts must adopt a pragmatic and functional approach to all administrative decisions. The Court specified in Baker that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty of rigidly classifying discretionary and non-discretionary decisions. In reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions.  If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable — unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures — it should be upheld.  At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution.

The Minister is obliged to exercise the discretion conferred upon her by the Act in accordance with the Constitution and must therefore balance the relevant factors in the case, and the balance struck must conform to the principles of fundamental justice under S. 7. It follows that insofar as the Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture (although the Court does not exclude the possibility that in exceptional circumstances, deportation to face torture may be justified either as a consequence of the balancing process under S. 7 or under S. 1 – to deny a person the benefit of protection under S. 53(1) would require the Minister to certify that the person constitutes a “danger to the security of Canada”).

Pless offers an excerpt from an article by LeBel as a closing reflection on the topic of discretionary decisions: “The existence of administrative decision makers exercising delegated authority requires courts to accept that law can have valid sources other than Parliament or the provincial legislatures. Law has an existence and a role apart from the series of rules which govern the resolution of disputes; it is also “a complex system of rules which serve to guide behavior in every form of human activity.”51 When we consider the multitude and variety of decisions made by administrative bodies ⎯ the resolution of employment disputes, the determination of rates for services, various licensing activities, immigration decisions, just to name a few ⎯ one is left to wonder how modern society would continue to function without them.”

G. Judicial Review of Administrative Decisions Affecting Charter Rights

The approach to administrative decisions which engage rights protected by the Charter has been fraught and inconsistent. The difficulty lies in assessing whether, when, and how to conduct a S. 1 analysis of an administrative decision. In theory, there are several options:

Subject the enabling legislation to a S. 1 analysis, and where justified, subject the decision to an administrative law analysis. Or, simply subject the enabling legislation to an S. 1 analysis, period.

Subject the enabling legislation and the decision to a S. 1 analysis.

Subject the decision to an administrative law analysis of the decision while taking into consideration Charter values and requirements.

Today, the Doré decision rendered by the SCC has laid the foundation for a new approach following the administrative approach above (underlined). Before Doré, the approach was given in Slaight. In Slaight , the Court stated that when legislation expressly authorizes the infringement of a Charter right, the legislation must be justified under S. 1. However, Slaight is silent as to whether orders stemming for said legislation must be analyzed under S. 1 or whether an administrative law analysis applies.

Slaight Communications Inc. v. Davidson, SCC [1989]

Davidson, an employee of Slaight, was dismissed. The labour adjudicator found that Davidson had been unjustly dismissed. The adjudicator issued two orders, first, that Slaight write a fact-specific letter of reference for Davidson, and second, that Slaight refrain from sending any information to any party inquiring about Davidson other than this letter.

52

Slaight applied for judicial review of the decision, arguing that both orders infringed on his right to freedom of expression under the Charter and this infringement was not justified under S. 1.

The Charter applies to orders made by administrative adjudicators because they are creatures of statute, that is, they are appointed through their enabling statutes and their powers derive from it: “The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied […] it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter… Legislation conferring an imprecise discretion must therefore be interpreted as not allowing Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so.”

S. 61.5(9) of the Canadian Labour Code (the enabling statute under which the orders were made) must therefore be interpreted as conferring on the adjudicator a power to require the employer to do any other thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal, provided however that such as order, if it limits a protected right or freedom, only does so within reasonable limits that can be demonstrably justified in a free and democratic society.

Thus, the steps to be taken to determine the validity of an order made by an administrative tribunal are guided by two principles:

An administrative tribunal may not exceed the jurisdiction it has by statute.

It must be presumed that legislation conferring an imprecise discretion does not confer the power to infringe the Charter unless that power is conferred expressly or be necessary implication.

Applying these principles to the exercise of a discretion leads to one of the two following situations:

The disputed order was made pursuant to legislation which confers, expressly (e.g. the power to extradite) or by necessary implication, the power to infringe a protected right.

- In this case, it is necessary to subject the legislation to the test set out in S. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society.

The legislation pursuant to which the administrative tribunal made the disputed order confers an imprecise discretion and does not confer, either expressly or by necessary implication, the power to limit the rights guaranteed by the Charter.

- In this case, it is necessary to subject the order made to the test set out in S. 1 by ascertaining whether it constitutes a reasonable limit that can be demonstrably justified in a free and democratic society. If it is not thus justified, the administrative tribunal has necessarily exceeded its jurisdiction. If, on the other hand, it is thus justified, then the administrative tribunal has acted within its jurisdiction.

In this case, the SCC assessed the orders and found that while both orders infringed Slaight’s rights under S. 2(b), they were both justified under S. 1:

(1) The objective – protecting vulnerable employees – was of sufficient importance.

(2) The means chosen were reasonable and rationally connected to the objective.

(3) No less intrusive means would have achieved the objective – the letter was tightly and carefully designed, reflecting a narrow range of uncontested facts such that Slaight was not forced to express any opinions which he

53

did not hold. Further, the prohibition was also very circumscribed as it was triggered only where Slaight was contacted for a reference.

(4) The effect was not so deleterious as to outweigh the salutary effects of the measures.

N.B. That Doré will call the framework for analysis in Slaight confusing. Pless disagrees.

The following are examples of post-Slaight jurisprudence applying S. 1 analyses:

Multani v. Commission scolaire Marguerite-Bourgeoys, SCC [2006]

Singh was an orthodox Sikh who believed his religion required him to wear a kirpan at all times. An agreement was struck with his school to allow him to wear the kirpan so long as he complied with a number of conditions – namely to ensure that it was sealed in his clothing. The CSMB refused to ratify the agreement on the grounds that it violated a provision of the code of conduct forbidding students from carrying weapons. Multani (father) challenged the decision.

In this case, the Court applied a Charter analysis, and refused to take and administrative law approach.

The compliance of the Commissioners’ decision with the requirements of the Charter is central to the dispute in this case, as opposed to the validity of the decision in administrative law. There is no suggestion that the Commissioners did not have jurisdiction, from an administrative standpoint, to approve the code of conduct. Nor is the validity of the rule against carrying weapons at issue. In this case, the complaint is entirely based on freedom of religion, and therefore the administrative law standard of review is not relevant.

The Charter applies to the decision of the CSMB despites its individual nature. Any infringement of a guaranteed right that results from the actions of a decision maker acting pursuant to its enabling statute is a limit “prescribed by law” within the meaning of S. 1. Where the legislation pursuant to which an administrative body has made a contested decision confers a discretion and does not confer, either expressly or by implication, the power to limit the rights and freedom guaranteed by the Charter, the decision should, if there is an infringement, be subjected to the test set out in S. 1 to ascertain whether it constitutes a reasonable limit.

Per Justice Charron (in response to Justices Deschamps and Abella, below): “With respect, it is of little importance to Gurbaj Singh – who wants to exercise his freedom of religion – whether the absolute prohibition against wearing a kirpan in his school derives from the actual wording or a normative rule or merely from the application of such a rule. In either case, any limit on his freedom of religion must meet the same requirements if it is to be found to be constitutional. In my opinion, consistency in the law be maintained only by addressing the issue of justification under S. 1 regardless of whether what is in issue is the wording of the statute itself or its application.”

The Court then applied a S. 1 analysis to the decision of the CSMB Commissioners and found that the infringement was not justified under S. 1 because it failed the minimal impairment stage of Oakes and the deleterious effects of the total prohibition outweighed any salutary effects of.

N.B. The importance of reading Multani is that while the approach above was adopted by Justice Charron and four other justices, Justices Deschamps and Abella – concurring in the result – and Justice LeBel each proposed different approaches.

Per Justices Deschamps and Abella: “In our view, the case is more appropriately decided by recourse to an administrative law review than to a constitutional law justification. The two main reasons dictate that an administrative law review be conducted. First, the purpose of constitutional justification is to assess a norm of general application, such as a statute or regulation. The analytical approach developed uniquely for that purpose is not easily transportable where what must be assessed is the validity of an administrative body’s decision, even on a human rights question. In such a case, an administrative law analysis is called for. Second, basing the analysis on the principles of administrative law averts the problems that result from blurring the distinction between the principles of constitutional justification and the principles of administrative law, and prevents the impairment of the analytical tools developed specifically for each of these fields.

54

On this basis, the justices applied the pragmatic and functional approach developed in Baker (above) which requires that discretion be exercised in accordance with the principles of the Charter. The justices therefore engaged in a standard of review analysis, deeming that the appropriate standard of review in this case was reasonableness simpliciter. It then assessed whether the decision taken by the CSMB was reasonable. They stated that in making its determination, the school board had to take all fundamental values into consideration, including not only security, but also freedom of religion and the right to equality. They found that the prohibition on the wearing of the kirpan could not be imposed without a consideration of conditions that would interfere less with freedom of religion and because the Commissioners did not sufficiently consider either the right to freedom of religion or the accommodation measures proposed by Multani (instead merely applying the code of conduct literally), the decision was unreasonable.

Justice LeBel offered a hybrid, holistic approach which did not expressly reject a S. 1 analysis, but which suggested that a full Oakes analysis may not be necessary and rather than the emphasis should be on the criteria of proportionality.

Little Sisters Book and Art Emporium v. Canada, SCC [2007]

Little Sisters Book and Art Emporium carried specialized inventory catering to the gay and lesbian community. It imported most of its inventory from the US. Code 9956(a) of the Customs Tariff prohibited the importation of material deemed to be obscene under S. 163(8) of the Criminal Code. S. 58 of the Customs Act allows Customs Inspectors to make the appropriate tariff clarifications which it must make according to Memorandum D9-1-1 which described materials considered obscene. Items considered obscene were subject to a re-determination by a specialized Customs unit under S. 60 and upon further appeal subject to a further re-determination by the Deputy Minister and finally to the courts.

The superior court deemed that the Customs officials had wrongly delayed, confiscated, and misclassified materials destined for Little Sisters and that these errors were caused by the systemic targeting of their imports. It therefore concluded that the legislation infringed S. 15, although found it was justified under S. 1 and therefore issued a remedy under S. 24.

In this case, the Court found that the legislation itself did not violate S. 15, but rather “the differentiation was made here at the administrative level in the implementation of the legislation.” While Customs Inspectors are given significant discretion in the administration of the Act, this discretion must be exercised in accordance with the Charter which the Court found it was not pursuant to an analysis as that above.

In Lake, which is post-Dunsmuir, we see that the SCC departs from the jurisprudence above and does not engage into a constitutional analysis. Instead, it applies Dunsmuir. This approach will be confirmed later in Doré, which is the law today.

Lake v. Canada (Minister of Justice), SCC [2008]

Lake committed a series of trafficking offences, including one which occurred in Detroit. He was not charged in relation to the Detroit transaction and pled guilty to the offences he was charged with. At his sentencing hearing, he received a sentence at the low end given the likelihood of an additional conviction and sentence in the US. After serving his sentence, the US requested his extradition to stand trial for the Detroit transaction. The Minister committed Lake for extradition and ordered his surrender. The Court of Appeal dismissed his application for judicial review.

S. 6(1) and S. 7 are infringed by the decision to surrender a Canada citizen, but the infringement is generally justified under S. 1. Judicial assessment of the Minister’s decision to surrender a fugitive by an appellate court is a form of judicial review under S. 57 of the Extradition Act. Applying the Dunsmuir analysis (factors), the Court determines that the appropriate standard of review in this case was reasonableness.

The legal threshold for finding that a surrender violates S. 6(1) of the Charter is evidence of improper or arbitrary motives for the decision not to prosecute the fugitive in Canada. This leaves room for considerable deference to the Minister. The assessment of whether a surrender violates S. 7 of the Charter similarly involves balancing factors for and against extradition to determine whether extradition would shock the conscience. The Minister must balance the individual’s circumstances and the consequences of extradition against such factors as the seriousness of the offence for which

55

extradition is sought, the importance of meeting Canada’s international obligations, and the need to ensure that Canada is not used as a safe haven from justice. The Minister’s decision is largely a political decision and falls at the extreme legislative end of the continuum of administrative decision making. Interference with a Minister’s decision should be limited to exceptional cases of real substance. According deference to the Minister’s assessment of the constitutional validity of his decision to surrender a fugitive does not unacceptably attenuate judicial review. The reviewing court’s role is to determine whether the Minister’s decision falls within a range of reasonable outcomes. This requires examining whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. The Minister’s conclusion should be upheld by a reviewing court unless it is unreasonable. This approach reflects the fact that the Minister’s assessments under S. 6(1) and 7 of the Charter involve fact - based balancing tests . The Minister is in the best position to weigh the relevant factors.

The Minister’s conclusion that the appellant was not prosecuted and sentenced in Canada for the Detroit transaction was therefore not unreasonable.

We then come to the decision in Doré in which the SCC confirms that approach in Lake, stating that an administrative law framework must apply to administrative decisions affecting Charter rights and therefore such decisions will be reviewed on a reasonableness standard. This approach completely rejects Slaight and Multani.

From Doré: “Normally, if a discretionary administrative decision is made by an adjudicator within hir or her manate, that decision is judicially reviewed for its reasonableness. The question is whether the presence of a Charter issue calls for the replacement of this administrative law framework with the Oakes test […] It seems to me possible to reconcile the two regimes in a way that protects the integrity of each. The way to do that is to recognize that an adjudicated administrative decision is not like a law which can, theoretically, be objectively justified by the state, making the tradition S. 1 analysis an awkward fit. On whom does the onus lie, for example, to formulate and assert the pressing and substantial objective of an adjudicative decision, let alone justify it as rationally connect to, minimally impairing of, and proportional to that objective? On the other hand, the protection of Charter guarantees is a fundamental and pervasive obligation, no matter which adjudicative forum is applying it. How then do we ensure this rigorous Charter protection while at the same time recognizing that the assessment must necessarily be adjusted to fit the contours of what is being assessed and by whom? We do it by recognizing that while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality. I see nothing in the administrative law approach which is inherently inconsistent with the strong Charter protection – meaning its guarantees and values – we expect from an Oakes analysis. The notion of deference in administrative law should no more be a barrier to effective Charter protection than the margin of appreciation is when we apply a full S. 1 analysis.

Doré v. Barreau du Québec, SCC [2012]

Doré appeared before Justice Boilard as counsel in criminal proceedings. During the hearing as well as in the judgement itself, Boilard J. strongly criticized Doré. In response, Doré wrote a strongly worded letter to Justice Boilard. He also filed a complaint with the Canadian Judicial Council and asked Chief Justice Lyse Lemieux that he not be required to appear before Boilard J. in the future. A complaint was filed against Doré based on this letter on the grounds that it violated Art. 2.03 of the Code of ethics of advocates – requiring the conduct of an advocate to bear the stamp of objectivity, moderations, and dignity – and his oath of office. Both men were disciplined.

Doré applied for judicial review of the decision that he breached Art. 2.03 of the Code on the grounds that the finding of a breach violated his expressive rights as protected by S. 2(b) of the Charter. The Court acknowledged that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values. The question then is what framework should be used to scrutinize how those values were applied.

The scope of the review of discretionary administrative decisions that provided the backdrop for the decision in Slaight was altered by the decision in Baker in which the Court concluded that administrative decision-makers were required to take into account fundamental Canadian values, including those in the Charter , when exercising their discretion. We saw a completely revised relationship between the Charter, the courts, and administrative law. In

56

Dunsmuir, the Court held that judicial review should be guided by a policy of deference, justified on the basis of legislative intent, respect for the specialized expertise of administrative decision-makers, and recognition that courts do not have a monopoly on adjudication in the administrative state. And, in subsequent jurisprudence, the SCC recognized that administrative tribunals with the power to decide questions of law have the authority to apply the Charter.

However, the Court has explored different ways to review the constitutionality of administrative decisions vacillating between the values-based approach in Baker and the more formalistic template in Slaight. The Court has at times applied the S. 1 Oakes analysis (see Multani, Little Sisters) and other times it has applied an administrative review analysis in assessing whether the decision-maker took sufficient account of Charter values (see Baker, Lake). The Court then observed that jurisprudence showed that it was gradually moving away from Multani .

In Hutterian Brethren, the SCC explained that the approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing administrative decisions that are said to violate the right of a particular individual. When Charter values are applied an individual administrative decision, they are being applied in relation to a particular set of fact, and per Dunsmuir, this attracts deference.

Indeed, while there is no doubt that when a tribunal is determining the constitutionality of a law, the standard of review is correctness (Dunsmuir), it is not clear that correctness should be used to determine whether an administrative decision-maker has taken sufficient account of Charter values in making a discretionary decision. Per Ryan , reasonableness remains the applicable standard of review for disciplinary panels and the SCC held that simply because the application of Charter protections by a disciplinary panel is involved in this case, this does not argue for a different standard. This is supported by the notion that an administrative decision-maker exercising a discretionary power under their home statute will have, by virtue of their expertise, a particular familiarity with the competing considerations at play in weighting Charter values. Applying a correctness standard in every case that implicates Charter values would lead courts to retry a range of administrative decisions that would otherwise have been subjected to a reasonableness standard.

In applying Charter values in the exercise of their statutory discretion, administrative decision-makers must :

Balance the Charter values with the statutory objectives.

- In effecting this balancing, the decision-maker should first consider the statutory objectives.

- Then the decision maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives.

The proportionality test will be satisfied if the measure falls within a range of reasonable alternative s.

On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protections and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play. Thus, if in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objective, the decision will be found to be reasonable . This approach creates a harmony between a reasonableness review and the Oakes framework since both contemplate a margin of appreciation, or deference, to administrative bodies in balancing Charter values against broader objectives.

Application:

In this case, the Court had to balance the fundamental importance of open, and even forceful, criticism of public institutions (expressive rights) with the need to ensure civility in the legal profession. The disciplinary body therefore needed to show that it gave due regard to the expressive rights at issue in light of Doré’s right to expression and the interest of the public in open discussion. This balancing is a fact-dependent and discretionary exercise.In light of the “excessive degree of vituperation” in the letter written by Doré, the decision that the letter warranted reprimand represented a proportional balancing of his expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity, moderation, and dignity.” The decision was therefore found to be reasonable (within the range of defensible outcomes).

57

According the Pless, there are two possible readings of Doré:

(1) Doré offers an adapted framework which is in harmony with administrative law given that it is an administrative decision, rather than a law, which is at play.

(2) Doré creates a new approach which is more deferential toward the administrative decision-maker in his evaluation of the impact on Charter rights.

Pless argues that the SCC was aiming for (1) but inevitably we fall into (2). This is especially true as under Doré, it appears like the government is relieved of its burden of justifying an infringement on a Charter right under S. 1.

There are a number of question which Doré leaves open:

If a correct reading of Doré is that where the law expressly authorizes a Charter infringement, courts must engage in a S. 1 Oakes analysis, but where the grant of authority is imprecise and the decision thereby discretionary, the court must take an administrative law approach, then why, if the Constitution is the supreme law of Canada, are there two different approached to determining the constitutionality of government action depending on whether it is expressly authorized by legislation or not. Per Justice Stratas: “If an administrative decision-maker interprets a Charter provision, applies it and disregards a legislative provision, the standard of review for its decision is correctness. Owing to the importance of interpretations of constitutional provisions, this makes sense. But if that same administrative decision-maker interprets a Charter provision finding a “Charter value,” and finds that determinative of the question it is deciding, the standard of review is reasonableness: Doré, above. Why the difference?”

In Doré, Justice Abella makes the distinction between the Oakes framework for assessing principles of general application rather than the administrative framework which is appropriate for analyzing administrative decision in relation to a particular set of facts. Yet, when courts engage in a S. 1 analysis, do they not apply the analysis to individual cases related to a particular set of facts?

Doré puts pressure on the courts to revisit its position on reweighing. Because a decision can only be reasonable when the decision-maker has struck the appropriate balance between its mandate and the Charter rights at issue, is it not the case that the reviewing court must inquire into the weight given the different factors in a given case?

Doré will test the resistance of the court to segment decisions.

The two major decision which have come down (and we are currently waiting on the SCC decision in Trinity Western) are Loyola and Trinity Western at the appellate level.

Loyola High School v. Quebec, SCC [2015]

Loyola is a private, Catholic high school administered by the Jesuit Order. Most students are from Catholic families. In 2008, the Minister of Education required a both public and private school to teach a program on Ethics and Religious Culture (ERC) teaching about beliefs and ethics from different world religions from a neutral and objective perspective. The Minister may grant an exemption to this required under S. 22 of the Regulation respecting the application of the Act respecting private education if the school proposes an alternative program deemed to be equivalent. Loyola applied for such an exemption, proposing an alternative course to be taught from the perspective of Catholic beliefs and ethics. The request was denied on the basis that because it was to be taught from a Catholic perspective, it was not equivalent to the ECR program. Loyola applied for judicial review.

In this case, the Court applied the framework set out in Doré. Thus, the reasonableness of the Minister’s decision depended on whether it reflected a proportionate balance between the objectives of promoting tolerance and respect for difference, and the religious freedom of the members of the Loyola community.

58

The context of this case is the state regulation of religious schools, which raises the question of how to balance robust protection for the values underlying religious freedom with the values of a secular state. Here, the SCC concluded that it is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the Charter protections and statutory objectives in issue. Preventing a school like Loyola from teaching and discussing Catholicism, the core of its identity, in any part of the program from its own perspective, does little to further the ERC Program’s objectives while at the same time seriously interfering with the values underlying religious freedom. The Minister’s decision is, as a result, unreasonable.

N.B. In concurring reasons, Justice McLachlin adopted a traditional approach and does not mention Doré . Pless also highlights another decision, Ktunaxa Nation v. BC, SCC [2017] in which the CJ also does not cite Doré .

Trinity Western University v. The Law Society of British Columbia, BCCA [2016]

The Law Society of British Columbia refused to approve TWU law school because students attending TWU must sign a Community Covenant which does not recognize same-sex marriage and imposes a series of other faith-based restrictions on the students. The issue on appeal is whether the Law Society met its statutory duty to reasonable balance the conflicting Charter rights engaged by its decision – namely the equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians. The Benchers initially approved the school, but following backlash, held a binding referendum in which a majority of lawyers voted against approval, leading the Benchers to reverse their position and pass a resolution not to accredit the school.

The BCCA relies on Doré and Loyola to conduct its analysis: “The balancing exercise that Doré and Loyola call for in the case before us can be expressed this way: did the decision of the Law Society not to approve TWU’s faculty of law interfere with freedom of religion of at least the faculty and students of that institution no more than is necessary given the statutory objectives of the Law Society?”

Application:

“The TWU community has a right to hold and act on its beliefs, absent evidence of actual harm. To do so is an expression of its right to freedom of religion. The Law Society’s decision not to approve TWU’s faculty of law denies these evangelical Christians the ability to exercise fundamental religious and associative rights which would otherwise be assured to them under s. 2 of the Charter. In light of the severe impact of non-approval on the religious freedom rights at stake and the minimal impact of approval on the access of LGBTQ persons to law school and the legal profession, and bearing in mind the Doré obligation to ensure that Charter rights are limited “no more than is necessary,” we conclude that a decision to declare TWU not to be an approved law faculty would be unreasonable.

In our view, while the standard of review for decisions involving the Doré/Loyola analysis is reasonableness and there may in many cases be a range of acceptable outcomes, here (as was the case for the minority in Loyola) there can be only one answer to the question: the adoption of a resolution not to approve TWU’s faculty of law would limit the engaged rights to freedom of religion in a significantly disproportionate way — significantly more than is reasonably necessary to meet the Law Society’s public interest objectives.

A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”

N.B. The Court states above that in this case (and Loyola) there was only one answer, so we have to ask ourselves whether the Court did not transform the reasonableness standard into a correctness standard.

IV. Liability and Immunity for Administrative Actions

It is important to understand the relationship between administrative review and the civil liability of public authorities. Sometimes, administrative decisions-makers may be civilly liable for their actions. Yet, this area of law is fraught. The Justice Stratas in Paradis Honey wrote: “Today, despite the best efforts of the Supreme Court and other

59

courts, the doctrine governing the liability of public authorities remain chaotic and uncertain, with no end in sight. How come? At the root of the existing approach is something that makes no sense. In cases involving public authorities, we have been using an analytical framework built for private parties, not public authorities. We have been using private law tools to solve public law problems. So to speak, we have been using a screwdriver to turn a bolt.”

Pless actually disagrees with the position of Justice Stratas, arguing instead that public law principles are in fact present in civil cases. The issue, according to Pless, is to correctly articulate these principles. He reminds us that Roncarelli, the foundational case in administrative law, was not a judicial review, but a civil action. He adopts the framework but forth by Professor Scott instead, whereby the real question boils down to whether the decision made by the administrative decision-maker was legal, whether or not the determination is made in the context of judicial review or a civil action.

For the purposes of civil liability, the state can be assimilated to a legal person:

Per CCQ 1376 in Quebec.

- Where harm was caused by an agent of the state.

At common law in CML Canada.

- For torts committed by its agents.

The law today in this area is governed by the test laid out in Imperial Tobacco, but first we have to look at the decisions which came before it, Montambault, Grenier, Telezone, and Canadian Food.

Grenier v. Canada (AG), FCA [2005]

Grenier was an inmate who was involved in an incident with a correctional officer. The head of the institution considered the incident to be serious under the particular circumstances and placed Grenier in administrative segregation for 14-day period. The decision was later reviewed by the Segregation Review Board, which recommended maintaining segregation. A disciplinary offence report was prepared charging Grenier with creating a disturbance jeopardizing the security of the penitentiary under the Correction and Conditional Release Act and he was sentenced to 14 days of disciplinary segregation. This latter decision was invalidated by the FCA on judicial review. Three years later, Grenier brought an action in damages under S. 17 of the Federal Courts Act for the administrative and disciplinary segregation. The prothonotary allowed the action in part. The issue in this case is whether it was necessary for the respondent to challenge the administrative segregation decision of the institutional head by judicial review before bringing an action in damages.

The purpose of reading this case is to note the following passage: “A decision of a federal agency, such as the one by the institutional head, retains its legal force and authority and remains juridically operative and legally effective as long as it has not been invalidated. S. 17 gives the Federal Court concurrent jurisdiction with the courts of the provinces to try a claim for damages under the Crown Liability and Proceedings Act. However, the Federal Court has exclusive jurisdiction to review the lawfulness of the decisions made by any federal board, commission or other tribunal under S. 18 of the Act. This review can be exercised only when an application for judicial review under that section is exercised. To accept that the lawfulness of the decisions of federal agencies can be reviewed through an action in damages is to allow a remedy under S. 17, which would disregard Parliament's clear intention in S. 18(3) of the Act that the remedy must be exercised only by way of an application for judicial review.”

N.B. This is a very formalistic approach. Essentially, this case stands for the proposition that to bring a civil suit, one must first have applied for judicial review. In this case, because Grenier could not apply for judicial review (as the delays were passed), he had no recourse through an action in damages as an action in damages depends on the legality of the underlying administrative decision. Pless notes that this state of affairs was favourable for the government because the government avoids paying damages wherever possible and when a decision is rendered against the government on judicial review, it does not imply costs (the issue is merely sent back to be re-determined) while this would be the case in civil suits.

60

N.B. While Grenier is overruled by TeleZone (below), the logic in Grenier can be useful depending on the approach taken for assessing liability. We see this in Montambault (below).

TeleZone v. Canada, SCC [2010]

Industry Canada issued a call for personal communication services licence applications, and released a statement which provided that it would grant up to six licences on the basis of the criteria it had set out. TeleZone submitted an application. Industry Canada ultimately issued only four licences, none of which went to TeleZone. TeleZone filed an action against the Crown at the ONSC stating that since its application met all the criteria, Industry Canada must have considered undisclosed factors in rejecting its application. The AG, relying on Grenier, challenged the jurisdiction of the ONSC on the ground that the claim constituted a collateral attack on the decision, which is barred by the grant to the Federal Court, by S. 18 of the Federal Courts Act, of exclusive judicial review in relation to decisions of all federal boards, commissions, or other tribunals.

In this case, the SCC overturned the decision in Grenier.

The purpose of reading this case is to note the following passages: The appeal in this case is fundamentally about access to justice: “People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary costs and complexity.  The Court’s approach should be practical and pragmatic with that objective in mind.  Acceptance of Grenier would tend to undermine the effectiveness of the Federal Courts Act reforms of the early 1990s by retaining in the Federal Court exclusive jurisdiction over a key element of many causes of action proceeding in the provincial courts despite Parliament’s promise to give plaintiffs a choice of forum and to make provincial superior courts available to litigants “in all cases in which relief is claimed against the [federal] Crown” except as otherwise provided.”

The Court finds evidence in the Federal Courts Act that Parliament could not have intended judicial review to have the gatekeeper function envisaged by Grenier. For e.g., S. 18.1(2) imposes a 30-day limitation for judicial review application. A 30-day cutoff for a damages claimant would be unrealistic, as the facts necessary to ground a civil cause of action may not emerge until after 30 days have passed and the claimant may not be in a position to apply for judicial review within the limitation period. Further, the grant of judicial review itself is discretionary and may be denied even if the applicant establishes valid grounds for intervention. This does not align with the paradigm of a CML action for damages where, if the elements of the claim are established, compensation ought to follow as a matter of course. Finally, S. 8 of the Crown Liability and Proceedings Act, which codifies the defence of statutory authority, is evidence that Parliament envisaged that the lawfulness of administrative decisions could be assessed by the provincial superior court in the course of adjudication a claim for damages.

A central issue in some (but not all) damages claims against the federal Crown will be the “lawfulness” of the government decision said to have caused the loss.     Grenier   would deny the provincial superior courts the jurisdiction to deal with that central issue in a damages claim pending before them.   Adoption of the Grenier principle would relegate the provincial superior courts in such matters to a subordinate and contingent jurisdiction — not concurrent, i.e., subordinate to the Federal Court’s decision on judicial review and contingent on the Federal Court being willing to grant a discretionary order on judicial review in favour of the plaintiff.

Montambault v. Hopital Maisonneuve Rosement, QCCA [2001]

Montambault was a doctor working at the Centre hospitalier Maisonneuve-Rosement (CHMR). After a number of psychiatric issues him were reported, he was asked by the president of the Conseil des médecins, dentistes et pharmaciens (CDMP) to quit. He refused and was told disciplinary action would be taken against him. The CDMP and CHMR suspended his practicing privileges. When a disciplinary committee heard the complaint, it recommended that suspension of privileges be annulled and made several recommendations concerning his reintegration. Montambault then informed the Administrative Council that he refused to be reintegrated in any position other than the one he held prior to the suspension, which the Council refused and contrary to the recommendations stripped him of his practice privileges. The decision was appealed to the Commission des affaires sociales which retroactively cancelled the emergency suspension and replaced the final revocation of privileges with a three-month suspension. The CHMR applied for judicial review

61

which was refused. Montambault, whose health had been deteriorating over this period, instituted proceedings for damages against the CHMR.

Justice Deschamps noted that the Act respecting Health Services and Social Services did not grant any immunity to members of the Administrative Council in the exercise of their duties. Consequently, she was of the opinion that it is public law which determines the applicable rules of civil liability in such a case, and, exceptionally, private law, namely, Quebec civil law. The approach proposed by Justice Deschamps drew upon the rules which apply to judicial review in administrative law matters.

The purpose of reading this case is to note the following passage: “J’estime que la démarche du Conseil privé dans X.(minors), démarche raffinée dans Barrett, a le mérite d’être simple, lucide et conforme aux fondements de notre droit public.  La première étape, que constitue l’étude des dispositions statutaires, est principalement utile pour évaluer le cadre d’exercice des pouvoirs du corps public.  La seconde étape, qui consiste en l’évaluation de la discrétion elle-même, fait appel à une analyse de la décision en la replaçant dans son contexte factuel propre.  Le niveau de responsabilité du décideur est alors situé en relation avec la nature de la décision.  Les éléments de politique générale, sociale et financière sur lesquels la décision repose doivent être étudiés.  Même lorsqu’il s’agit d’un domaine ne faisant pas appel à la pondération de sujets politiques, sociaux ou économiques, le tribunal doit jauger du caractère raisonnable de l’exercice du pouvoir. À une extrémité, les décisions de pure politique ne pourront pas donner ouverture à l’intervention des tribunaux parce que l’exécutif et non le judiciaire est chargé d’évaluer les enjeux sociaux et économiques de la société.  Lorsque le corps public agit dans le cadre de sa discrétion, aucune intervention ne sera permise.  Si le corps public viole sa loi ou excède sa discrétion, il y aura en droit public ouverture à intervention du pouvoir judiciaire. Lorsque, de l’exercice déraisonnable du pouvoir exécutif, résulte un préjudice, les tribunaux pourront le sanctionner s’il y a faute au sens du droit privé.  S’il s’agit d’une décision ne reposant sur aucune discrétion, la seule vérification à faire est celle du droit privé.  Entre les deux extrêmes, l’évaluation de l’ampleur de la discrétion guidera l’intervention.  Plus la discrétion sera importante, plus la norme se rapprochera du déraisonnable.”

(From a publication on Montambault by Lavery) Thus, insofar as a public body acts within the scope of the discretion and powers conferred upon it by law and exercises those powers in a reasonable manner, the courts will not intervene in its policy decisions, because it is not the judiciary’s role to assess the social and economic objectives underlying such decisions. In that sense, Justice Deschamps suggested that with respect to such decisions, public authorities, including hospitals, benefits from a certain immunity. However, acts which are not based upon the exercise of a discretionary power are subject only to private law rules—in this case, the standard of conduct set forth in CCQ 1457. Based on this rule, a person will be entitled to compensation if the person can prove fault, damage and a causal link between the fault and the damage suffered. The existence of a fault must be determined according to the standard of conduct of a reasonable person in the same circumstances.

In this case, Justice Deschamps addressed two decision separately, that is, the emergency suspension and the withdrawal of privileges. Because the Organization and Management of Institutions Regulation granted the CHMR very little discretion regarded emergency suspension (strictly circumscribed), courts will be more ready to intervene. Thus, Justice Deschamps applied CCQ 1457 and found that by failing to conduct a proper inquiry and by suspending Montambault in the absence of a true emergency, the Council committed a fault. As to the withdrawal of privileges, consulting the same Regulation, she found that the Council had a broad discretion to choose among sanctions and was not constrained by the recommendations of the disciplinary committee. As such, she determined that the Council had not abused its discretion and therefore their determination was not justiciable.

N.B. Pless thinks this is the most lucid and clear approach and points out that it is affirmed by the SCC in Canadian Food. However, he notes that the CML provinces find this approach inherent civilian in nature and it is not adopted outside of Quebec. Pless disagrees and he believes that the same approach can be transplanted in CML. Pless also said that, in practice, the federal government often pleads Montambault.

Canadian Food and Protection Agency v. Professional Institute of the Public Service of Canada, SCC [2010]

Veterinarians assigned to inspect slaughterhouses were involved in a labour dispute with the Canadian Food Inspection Agency (CFIA) and did not report for work. The CFIA then issue a direction providing that, because the meat was not

62

inspected, it did not meet the requirements of the Meat Inspection Regulations. The slaughterhouse operators did not apply for judicial review, but commenced an action at the QCCS for damages against the Professional Institute of the Public Service of Canada (PIPS) which represented the veterinarians, which called the CFIA in warranty arguing that any damage caused resulted from its decision. The CFIA motioned to dismiss the recourse in warranty on the ground that the direction issue by it was a decision of a federal board in respect of which the QCCS could have no jurisdiction unless the decision was fist quashed on judicial review by the Federal Court.

The Court adopts the reasoning in TeleZone whereby successfully challenging an administrative decision of a federal board on judicial review before the Federal Court is not a requirement for brining an action for damages with respect to that decision, stating that Grenier is no longer good law. The Court then followed Montambault: “In Quebec, the combined effect of the Crown Liability and Proceedings Act and the Civil Code of Québec is that the federal Crown is subject to the rules respecting civil liability set out in art. 1457 C.C.Q. The fact that the federal Crown is subject to Quebec’s rules of extracontractual civil liability where damage allegedly caused by the fault of its agents is concerned does not preclude it from invoking its immunity, but such arguments are more appropriately dealt with at the hearing on the merits. Here, the Superior Court has jurisdiction over the parties and over the subject matter of the dispute. The recourses in warranty could not be characterized as an attack on the legality or the validity of the CFIA’s decision in the guise of an action for damages.”

The actual rule is given to us in Imperial Tobacco.

R. v. Imperial Tobacco Canada Ltd., SCC [2005]

The Tobacco Damages and Health Care Costs Recovery Act authorized an action by the government of BC against a manufacturer of tobacco products for the recovery of healthcare expenditures incurred by the government in treating persons exposed to such products. The appeal here concerns two cases before the BC courts, Costs Recovery, in which BC is seeking to recover the cost of paying for the medical treatment of individuals suffering from tobacco-related illnesses under the Act, and Knight, a class action against Imperial seeking a refund of the cost of light cigarettes and punitive damages for the class members, alleging misleading packaging. In both cases, the tobacco companies issue third-party notices to the Government of Canada alleging that if the tobacco companies were held liable to the plainitffs, they were entitled to compensation from Canada for negligent misrepresentation, negligent design and failure to warn, as well as at equity.

The purpose of reading this case is to note the following passages: “The question of what constitutes a policy decision that is generally protected from negligence liability is a vexed one, upon which much judicial ink has been spilled . There is general agreement in the common law world that government policy decisions are not justiciable and cannot give rise to tort liability. There is also general agreement that governments may attract liability in tort where government agents are negligent in carrying out prescribed duties. The problem is to devise a workable test to distinguish these situations.

The jurisprudence reveals two approaches to the problem, one emphasizing discretion, the other, policy, each with variations. The first approach focuses on the discretionary nature of the impugned conduct […] This approach holds that public authorities should be exempt from liability if they are acting within their discretion, unless the challenged decision is irrational.

The second approach emphasizes the “policy” nature of protected state conduct. Policy decisions are conceived of as a subset of discretionary decisions, typically characterized as raising social, economic and political considerations. These are sometimes called “true” or “core” policy decisions. They are exempt from judicial consideration and cannot give rise to liability in tort, provided they are neither irrational nor taken in bad faith. A variant of this is the policy/operational test, in which “true” policy decisions are distinguished from “operational” decisions, which seek to implement or carry out settled policy. To date, the policy/operational approach is the dominant approach in Canada […]

A review of the jurisprudence provokes the following observations. The first is that a test based simply on the exercise of government discretion is generally now viewed as too broad.  Discretion can imbue even routine tasks, like driving a

63

government vehicle.  To protect all government acts that involve discretion unless they are irrational simply casts the net of immunity too broadly.

The second observation is that there is considerable support in all jurisdictions reviewed for the view that “true” or “core” policy decisions should be protected from negligence liability.  The current Canadian approach holds that only “true” policy decisions should be so protected, as opposed to operational decisions.  The difficulty in defining such decisions does not detract from the fact that the cases keep coming back to this central insight […]

  In short, the representations on which the third-party claims rely were part and parcel of a government policy to encourage people who continued to smoke to switch to low-tar cigarettes.   This was a “true” or “core” policy, in the sense of a course or principle of action that the government adopted.   The government’s alleged course of action was adopted at the highest level in the Canadian government, and involved social and economic considerations.  Canada, on the pleadings, developed this policy out of concern for the health of Canadians and the individual and institutional costs associated with tobacco-related disease.  In my view, it is plain and obvious that the alleged representations were matters of government policy, with the result that the tobacco companies’ claims against Canada for negligent misrepresentation must be struck out.”

Finally, in Hinse, the SCC addresses the proper standard for establishing fault (in the CML).

Hinse v. Canada, SCC [2015]

Key passage: “In our opinion, a standard of bad faith that encompasses serious recklessness as defined in Finney and applied in Sibeca is consistent with the logic of Quebec’s principles of civil liability. Moreover, this standard is akin to the concept of gross fault, which includes gross recklessness.

This standard is of course higher than the standard of simple fault that the trial judge incorrectly applied in the case at bar. A simple fault such as a mistake or a careless act does not correspond to the concept of bad faith that defines the limits of the Crown’s qualified immunity. Moreover, it would be paradoxical if the exercise of the Minister’s power of mercy were subject to a reasonableness standard on judicial review while being considered from the standpoint of a simple fault in extracontractual liability.

In sum, decisions of the Minister that are made in bad faith, including those demonstrating serious recklessness — as defined in Finney and Sibeca — on the Minister’s part, fall outside the Crown’s qualified immunity. Bad faith can be established by proving that the Minister acted deliberately with the specific intent to harm another person. It can also be established by proof of serious recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be deduced and bad faith presumed. It is with this in mind that the duty owed by the Minister when exercising his or her power of mercy must be analyzed.”

64