Administrative State and Rule of Law 3

Admin Law 301: Final Outline 2015 Natalie Pawson Tax

Table of Contents

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Administrative State and Rule of Law

 See Introductory handout

 Form of public law  Purpose: o To control exercise of governmental power (confine scope of power, curb potential abuses, ensure proper procedure are followed in exercise of powers, ensure performance of mandatory statutory duties) o Foster accountability by the government o Ensure admin branch of government effectively performs legislative tasks

ADMIN LAW VS. CONSTITUTIONAL LAW

 Both are forms of public law – admin is subset of constitutional but not the same  Admin is concerned with exercises of power by government officials and agencies rather than legislative actions or validity of statutes with constitutional law (growing intersection) o Admin law attacks the application the legislation in form of decision by ADM  Rooted in constitutional principles o Rule of Law o Legislative Supremacy and parliamentary sovereignty o Constitutionally protected and jurisdiction of s.96 courts (normal courts) and principles of judicial independence

ADMINISTRATIVE DECISION MAKERS (ADM)

 Includes numerous actors (listed in handout)  Rise in the regulatory state and growth of admin bodies to delivery public programs under a statutory authority  Features of independent admin agencies: o Independence: distance and freedom from direct control by the government o Hearing process: engage in hearing process before making a decision or policy o Individualised decision making: make decisions in individual cases o Specialization: operate within a particular statutory scheme, usually only deal with one statute or part of one (their home statute, or related statute)

ADVANTAGES OF ADM

 Why ADM over government department? o Legitimacy: no politics involved in the decision as involved in governments o Better decisions: decisions would be of better quality because they are able t draw upon experience to make decisions and develop more open process o Expediency: don’t want political responsibility for decision making so send it to ADM

 Why ADM over the courts? Tax

o Policy: nature of decisions may be inappropriate for adjudication, better to not be in an adversarial system o Quantity: number of cases would clog the courts o Procedural concerns: courts are slow, expensive and need lawyers, ADMs are more informal, accessible, quicker and less expensive o Ideology: thought to be impediment to legitimacy and effectiveness of statutory scheme o Public participation desired: may want input from broad section of public before making a decision

NON-JUDICIAL CONTROL MECHANISMS OF GOVERNMENT POWER

 Legislative oversight – scrutiny of legislation prior to enactment, review of regulations, scrutiny of appointments to agencies, annual reports by agencies  Ombudsman  Informal internal controls – day-to-day management and account policies, internal reviews of operations and policy, internal reviews and reconsiderations of decisions  Formal non-judicial appeals – statutory right of appeal to other ADM or Minister or Cabinet

JUDICIAL CONTROL OF ADMINISTRATIVE ACTION

 Appeals to court from ADM can be provided for by statute – must be provided for explicitly by statute, courts have no inherent right to review  Original jurisdiction of courts – if it is ordinary private law proceeding arising from admin decisions (tort, breach of contract)  Judicial review jurisdiction of courts – government cannot insulate ADM from review by courts using a privative clause  S.96 prevents provinces from setting up admin courts that usurp power of courts  Process for JR set out in statutes (Judicial Review Procedures Act or Federal Court Act)

GROUNDS FOR JUDICIAL REVIEW

 Procedural impropriety – manner in which decision was made o Breach of PF, bias, lack of independence  Substantive illegality or irrationality – basis for decisions o Errors in scope of statutory power, errors of law, reviewable errors of fact, abuse of discretionary power

RULE OF LAW VS. FUNCTIONALISM: THEORY

 Legal Formalism ( Dicey ) – up to 1920’s o Law is composed of scientific legal rules – discerned by close examination of previously decided cases o Emphasis on plain meaning 4 [Type text] Admin

o Judges are not concerned with policy or equitable outcomes o Concerned about size of admin state – this has reduced primacy of courts and therefore is less likely to be able to protect individual rights o Need to keep government minimal – allow individuals to govern themselves and if there is dispute, they can go to judiciary . Prefer CL as source of regulation over government legislation . Trust in judges to create equitable laws – not influenced by politics like politicians, more likely to be fair  Functionalism ( Willis ) – 1920s – now o Central concern of administrative law should be to promote effective functioning of the modern state o CL is weak instrument for social governance – need legislative governing, experts to enforce those laws o Delegation of power to ADM is necessary and inevitable for regulatory state o Courts (wrongly) guard CL values against state encroachment – use their powers to protect private property rights and freedom to contract in ways that inhibit regulatory state from achieving its purpose o Courts sometimes impose adversarial model on ADM when not appropriate . Interferes with efficiency of the system and favours people who can afford litigation o Courts can fail to appreciate need to infuse policy in statutory interpretation – judges don’t have monopoly on interpretation of statutes . ADM can be better to interpret statute if they have more expertise Constitutional Basis for Judicial Review

 Only public bodies are subject to JR – consider if public

 TEST: Is JR available? 1. Is the tribunal a public body? – subject to public law and therefore JR, part of machinery of the government a. Source of power and funding? b. Does government directly or indirectly control them? c. Would government fill their place if tribunal didn’t exist? 2. Does the party have standing to challenge the decision? – parties, collateral interest or public interest 3. What is the proper court for JR? - provincial courts or federal courts 4. Has the application for JR been filed within the necessary time limits? – BC is 60 days a. Courts have ability to extend it 5. Has party exhausted all other means of recourse to challenge the tribunals decision? a. No inadequacy of other means based only on unproven allegation that the tribunal would suffer the same error or bias as the original

Inherent Jurisdiction

Courts power to review ADM  Original Jurisdiction – challenging ADM decisions on basis of private law (tort, contract), grounds that ADM infringed individuals private right Tax

 Statutory Right of Appeal – not automatic, must be provided for in statute

 Inherent JR Jurisdiction (s.96) – superior courts have inherent jurisdiction to hear a matter on review UNLESS there is specific statute that says otherwise or grans exclusive jurisdiction to another court/tribunal (privative clause) o Definition: power to determine the limits of its own jurisdiction o Not a general appeal – court cannot substitute its own decision for ADMs o ONLY FEDERAL government may create s.96 court and appoint judges – NOT province o S.96 courts are immune from JR o Provinces may create inferior courts and tribunals - these are statutory courts with no inherent jurisdiction (to give inherent jurisdiction would be to create superior court)

 Statute and privative clauses CANNOT oust courts on questions of jurisdiction (Crevier) o Privative Clause: clause in statute stating that ADM decisions cannot be reviewed by the courts (trying to insulate decisions) o Neither federal OR provincial can oust court with privative clause (MacMillan Bloedel) o Can oust courts on matters or law o Question: what is a question of jurisdiction? – unclear . Above and are difference from errors of law (Crevier)

TEST FOR S.96 COURT

To determine if ADM is acting like a s.96 court and is therefore unconstitutional: (Re Residential Tenancies Act, Crevier)

1. Historical Inquiry: is ADM exercising power that is analogous to power exercised by courts at time of confederation? a. If NOT analogous, then it is within its authority – if it is, then next… 2. Judicial Inquiry: are they serving a judicial junction? a. Look at nature of what they are deciding – private litigation = judicial function b. If NOT judicial, then it is within its authority – if it is, then next… 3. Contemporary Character: does ADM incorporate other non-judiciary elements? – if so, valid a. What is the sole and central function? – if it is judicial, then it is invalid (Crevier)

Remedies on Judicial Review

 Historically Writs: (now abolished by JRPA) – had to use exactly the right words and writ or your application would be thrown out on a technicality o Certiorari – cause to be certified: courts get ADM to provide record of proceedings for review of excess jurisdiction o Prohibition: court prevents ADM from exceeding jurisdiction, essentially injunction o Mandamus – we command: court compels ADM to perform duty it is mandated to perform (usually combined with Certiorari), used to order reconsideration by ADM 6 [Type text] Admin

o Declaration: court determines and states legal position of parties, or law that applies o Habeas Corpus – produce the body: bring a person before the court to make sure there isn’t illegal imprisonment (rare in Canada) o Quo Warranto – by what warrant/authority: inquire what authority exists to justify acts by ADM (rare)

 Judicial Review Procedures Act – simplified o S.2(1) – bring petition for JR . S.2(2) – don’t have to use language of writs . Can just bring an application rather than before, try to get it all right o S.14 – application for JR must state grounds for relief and nature of relief sought o S.18 – quo warranto is abolished Administrative State and Rule of Law

Rule of Law

Cases: Roncarelli, Re Manitoba Language Rights, Reference re Secession of Quebec, Imperial Tobacco, Khadr, Regie des Rentes du Quebec

 Definition: part of constitutional law (written and unwritten), meta-principle o Implicitly recognized in preamble of Constitution Act, 1867 and in preamble of Charter o One of 4 underlying principles of Constitution (Reference Re: Quebec Secession) . Foundational constitutional principle (Re Manitoba Language Rights) o Principle of legality (Re Manitoba Language Rights)  Underlies much of admin law – important rationale for courts

 Characterized by: o Legality – all legal action must originate form legal source of authority, no arbitrary or unauthorized government action (Re Manitoba Language Rights, Imperia Tobacco) o Order – law needs to be written, clear and accessible . “law and order are indispensible elements of civilized life” (Re Manitoba Language Rights) o Supremacy – everyone, including the government, is bound by law (Imperia Tobacco) . Need practices of imposing effective legal restraints on exercise of public power within the 3 branches of government

 Purpose of the Non-Arbitrary Rule: o Normative standard by which public power can be evaluated and challenged o If ROL governs legal system: all persons will have formal equality, officials of the government will be held legally accountable like any other person  Prevent arbitrary exercise of public power by officials regarding process, jurisdiction, substance o Arbitrariness often indicates indifference about procedures chosen to reach outcome o Decision may be found arbitrary in substance because it is biased, illogical, unreasonable or capricious – offends standards of reasonableness, rationality, morality o Act arbitrarily when there is lack of respect, ignore dignity of individual o Often unilateral decisions with no participation  Arbitrary: untrammelled exercise of will or the uncontrolled power of public DM Tax

THEORIES

Traditional Approach, Formalist View (Diceyan)

 Legality: there must be lawful authority for any state actions that interfere with rights and liberty of its citizens o For every government action, there should be a source of law to authorize it (which should come from written rules) o Should be written down and clear – distrust of discretion and fear of arbitrary use of power and having laws in writing would reduce this  Formal Legal Equality: everyone, including the government is subject to laws administered by ordinary courts and courts are the final arbiters of law o No one is above the law  Judges as Guardians: guard against arbitrary government action, especially by executive and administrative branches o Protect citizen’s rights against the state o Legislature is important but they cannot be trusted to police themselves – need the courts to police them o Government should be able to restraint/restrict rights without some sort of restraint o Courts should have the final say  Implicit belief: law is not politics – separate things o No policy making

Substantive ROL (Roncarelli)

 Must read values into legislation – take larger social values and purpose into consideration o No discretion is absolute – No such this as absolute untrammelled discretion (Roncarelli) . Even if there is discretion given to DM, there are limits o No arbitrary or unauthorized government action allowed (Re Manitoba Language Rights, Imperial Tobacco) o Decisions must be made in good faith and based on reasons from legislation  Concern about context of legislation  Judicial scrutiny extends beyond whether the government acted within its limits strictly defined through legislation – consider purpose, values and unwritten legal norms o How SCC makes decisions

New Minimalist ROL (Imperial Tobacco, Khadr) – CURRENT THEORY

 More deference to ADM, less willing to read in values o Affirms non-arbitrariness, need for positivist laws and judicial independence (pg.58) o ROL is not way to trivialize constitutions written terms or avoid legislation initiatives (Imperial Tobacco) o Won’t read in values and purpose in legislative action in name of ROL 8 [Type text] Admin

 ROL cannot invalidate legislation based on content that is otherwise constitutional, even if it is perceived as arbitrary – must be directed at executive/administrative action (Imperial Tobacco)

Functionalist Critique of Diceyan ROL, Traditional Critique (Willis/Fuller)

 Primary function of admin law is to promote effective functioning of the modern state – do this through policy and discretion as well as rules  Policy is vital in statutory interpretation – misguided to see law and policy as separate o Law is policy – judges reasoning is political, judges are elitist and not to be trusted  Discretion and policy are good, necessary tools for decision making – must trust experts with DM  Should foster: o Regulation of private power in public interest o Promotion of social and economic equality through redistribution of income and benefits – not use ROL to justify status quo o Protection of public laws  Government as guardians – judges don’t have monopoly on how to interpret statutes o Judges need to reign themselves in so that government can run properly – need humility of judges, don’t know everything

New Critique of New Minimalist Model (Roach, Imperial Tobacco)

 Anti-terror legislation – 9/11 resulted in laws that defy ROL, rapid legislative action that restricted civil liberties o Need to curtail rights using ROL to maintain ROL o Laws were passed to protect ROL but actually hurt it  Legislation violates ROL – government acting without any review, should read in human rights values in the legislation  Should be more scrutiny so make sure anti-Charter laws are not passed – violations of liberty

New Critique of ROL as Liberal Concept (Razack, et al)

 Vacating/evacuation of law from certain spaces (“states of exception”, area of lawlessness) – detention centres, Guantanamo Bay, migrant workers, refugees, detainees o No legal protection for people in these states in anti-terror context – exclusion from law is eviction from personhood and human community o States of exception are portrayed as necessary to preserve ROL and “civilization”  After 9/11 these types of states have accelerated – justified through law and excluded from JR o Set up in the name of ROL but principles are being violated o How can it be justified?

West -> “Civilized” -> Law or Reason -> Modern -> Rule of Law Non-West “primitive” or “barbaric” Culture or religion Pre-modern State of Exception

SCC on Rule of Law

 Hasn’t fully articulated but current statement in Roncarelli o No official is above the law o No such thing as untrammelled discretion o Decisions must be justified by law Tax

Baker, 1999, SCC

 Modern Admin Law: courts tend to be more deferential to ADM  JR is supposed to examine how and why courts decided to intervene: o Procedural Fairness – is it an issue the courts should review? . If yes, did ADM use proper procedures? o Substantive Review – regarding the decision itself, did ADM make an error of the kind and magnitude that the courts are willing to get involved in? o Remedies – if there are procedural/substantive defects in the decision, should the court intervene and how?

 Case synthesized law in SR and PF, removed dichotomy between discretionary and non- discretionary decisions o Affirmed pragmatic, functional approach for SOR test (changed by Dunsmuir) o Created list of factors for PF and test for bias – relevant to oral hearings and duty to give reasons, sufficiency of reasons  Reflection of functionalist AND substantive theories of ROL

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Procedural Fairness

 2 Branches: o Bias – (impartiality and independence) – was the decision coloured by bias? o Actual Procedures – did the person get procedures that make the process fair and ones they were entitled to?

 Content of duty is flexible and context-specific – minimum duty, low threshold  Some ADM’s have statutes governing content of PF

 CL considerations: scope and content of duty determined from 5 factors in Baker: o If individual’s rights, privileges or interests are at stake, duty of fairness applies and then the question is one of degree

Sources of PF

 Common Law – key source o Baker established modern CL approach to duty of fairness o Clear legislative restrictions would limit protections at CL – only Charter would override  Statute – may speak to procedure o Consider ADM home/governing statute! o If statute says no hearing, then regardless of CL, there will be no hearing BUT subject to the Charter, courts would narrowly interpret rights-limiting provisions  Regulations – detail the specifics outlined in the statute  Government Policies and Promises – not force of law o LE can apply – what was done in the past can raise level of PF o Expect certain things based on what government said and general policies  Bill of Rights  Charter – consider any constitutional rights o Jurisdiction to consider constitutional issues?  Agency practices and policies

Historical Development

NATURAL JUSTICE

 2 primary principles: o Hear the other side (audi alteram partem) - right to notice and right to be heard o No one should judge their own case (nemo judex in sua causa) – rule against bias

ENGLISH COMMON LAW

 If important rights of individual were affected, hearing rights would be inferred  Restrictions arose and required classification between judicial or quasi-judicial decisions and administrative, executive or ministerial decisions o Judicial/quasi-judicial: natural justice applied, accorded hearing rights Tax

o Admin/executive: natural justice didn’t apply, no hearing rights

Restrictive Approach

DEVELOPMENT OF DUTY OF FAIRNESS

 Lord Atkin (Electric Commissioners): “legal authority to determine questions affecting the rights of subjects and having the duty to act judicially” o Interpreted by Lord Hewart (Church Assembly): for natural justice to apply, the decision had to determine rights and involve duty to act judicially in making the decision o NJ didn’t apply if: . Decision wasn’t final – not determinative . Decision involved privileges, rather than rights . No duty to act judicially in statute  Problems: all or nothing approach that depended on uncertain classifications

 Move towards recognizing duty of fairness in 1964 (Ridge v Baldwin) – no requirement to have a duty to act judicially for NJ to apply o Looked to the nature of the power exercised – if judicial type decision, NJ applied

EXPANSION OF PROCEDURAL OBLIGATIONS

 Adoption of duty of fairness in Nicholson, 1979 – duty implied it was a halfway house o Less than NJ – NJ would apply in certain situations and duty in others o PF applied to ADM decisions o Quasi-judicial = NJ, ADM = duty of fairness (Bates)  Issues: o What is threshold? Will all ADM decisions pass? What is content of PF? Distinction between judicial and admin still? Deference to ADM on procedures?

DEVELOPMENT OF MODERN APPROACH TO PF

 No need to distinguish between duty and NJ (Matsqui)  Basic elements of Modern Duty (Knight) o Not all ADM under duty to act fairly o Legislative and general decisions vs. admin and specific decisions (no duty) o Preliminary decision will not trigger duty but final one would

Determining PF Content

Test to determine PF  Threshold: for PF to apply, there must be: (Cardinal)

o A public authority (police broad, director of prison, school board, hearing officer) o Has made a decision o Not of a legislative nature o It affects the rights, privileges or interests of an individual o It is not an emergency or urgent situation

 Apply Baker Factors to determine the rights required: criteria are non-exhaustive (Mavi) 1. Nature of Decision being made a. The more it resembles judicial decision making, the more likely PF protections will be required – more PF in adjudicative context than regulatory 2. Nature of Statutory scheme a. More PF if no appeal provided for in statute OR if decision is determinative of the issue and no more requests are allowed b. More determinative decision = more PF b.i. Investigatory steps normally not subject to PF b.ii. Final decision will require a high degree of PF c. Determine if there is an appeal option, useful in determining scope of PF d. The more final the decision, the greater the claim for PF, even if preliminary e. Preliminary will require: e.i. Important issue at stake (loss of reputation, adverse affect on right, interest or privilege) e.ii. Proximity between decision and final decision (if preliminary effectively determines the final) 3. Importance of Decision to individual a. The more important to the lives of the people affected and greater the impact, the more PF will be required b. If EM at stake, higher standard required (Kane) 4. Legitimate Expectations of the person (see section) a. Does NOT create substantive rights, only procedural protection b. If they have LE that a certain procedure will be followed, that procedure will be required by PF b.i. Government practice of notice and consultation could give rise to argument that procedures must be followed based on LE c. If LE that a certain outcome will result, might require more procedural rights d. Regular practices or promises by ADM to individual – would be unfair for ADM to act in contravention of these representations or to backtrack on promise 5. Choices of procedure by Agency a. Respect choices of procedure by agency especially if statute gives leave for ADM to choose its own procedures or if they have expertise in determining which procedures are appropriate b. Not determinative

LIMITATIONS ON PF

 PP Feb.26  Non-final decisions: if not final, may not attract PF – see where decision fits within scheme Tax

o Duty only applies where decisions are being made o Steps along the way, not conclusive decisions, fact-finding efforts that don’t determine liability, inspections or investigations – may not attract PF o May be required at investigatory stage if: . Reputation at stake (Blencoe) . Preliminary stage has finality o Re Dairy Producers: investigative effort was preliminary so no NJ requirements

 Legislative and General Decisions (Inuit) – no PF, no good description of the concept o All primary legislation passed by parliament, including subordinate legislation by Cabinet, are not subject to PF (Inuit, Re Canada Assistance Plan) . Only procedure due to citizen by Parliament is the law making process through Senate and House of Commons (Authorson) . Cabinet decisions are extension of Parliamentary decisions, may not always be covered (Inuit) . Unclear if legislative = general o Rationale: parliament shouldn’t be impeached by the court and no subject to duty of fairness, only subject to constitutional requirements and electorate (Inuit) . Separation of legislature and court demand no PF here o Ministerial decision based on public policy grounds affords no PF (Martineau) o Consider nature of decision – affect everyone, large group of people or an individual . If individual only affected, PF required (or targeted) o Municipal governments – difference between PF threshold and PF content, fairness applies in making bylaws . Homex: court will focus on substance, not fact muni is using power  Just because small group is affected by broad, policy-based decision doesn’t make it targeted . Catalyst Paper: muni’s make quasi-judicial and legislative decisions, different considerations for different decisions . CPR and Lafontaine: duty of fairness owed in bylaw-making function  If broad decision overwhelmingly affects 1 person, PF may attach o General Decision – no clear definition but would be broad policy decision that are “inherently political” . Imperial Oil: minister exercising political role in deciding options, not subject to duty of fairness

 Emergency Doctrine – duty may be suspended or abridged in event of an emergency, or if nature of the decision is urgent o Not possible to fulfil duty without risking harm so ok to suspend it (Cardinal) o No requirement of prior notice or opportunity to be hear before the decision o Eg. Prison administration and segregation orders

 Policy Making and Broad Discretionary powers – no duty of fairness o Impact is broad and diffuse 14 [Type text] Admin

o Eg. Environmental decisions (Sea Shepherd – wolf kill, Sierra Club – timber cutting) o Eg. Marketing board decisions (Canada Association of Regulated Importers)

Legitimate Expectations Doctrine (LED)

 PP Mar.3  Duty of PF may be present if there is legitimate expectations that a certain procedure will be followed – expands amount of PF owed at CL in circumstances where there would otherwise be no such opportunity (Old St. Boniface) o Rule: If it applies, may provide procedures where none were owed at CL, or provide better procedures o Factor from Baker – take into account when determining content of PF  Similar to promissory estoppel – relief from reliance on promises  Only used for procedural rights, NOT substantive! (Re CAP, Baker, Mavi, Mount Sinai) o Policy reasons not to allow it to create substantive rights

 Can affect procedures required in 2 different ways: (Baker) o Person may have LE of particular substantive result – can apply to entitle person to more extensive procedures that would have otherwise been accorded before they can be denied of the result o Person may have LE of particular procedure – can apply to entitle person to have benefit of procedure before decision is made

 Circumstances affecting PF must take into account the promises and regular practice of ADM o Would be unfair to act in contravention of representations as to procedure or to backtrack on substantive promises without affording procedural rights (Baker)

 Can arise based on past conduct (regular practices) or promises by officials o Conduct relied on to establish LE must be “clear, unambiguous and unqualified” o Cannot be contrary to statute (Mount Sinai, Mavi)  Not necessary to show they were aware of conduct giving rise to LE (Mount Sinai) o Proof of reliance is not required (Mount Sinai)

 Cannot attach to creation of statutes (directly of indirectly) o Would fetter parliament, interfere with legislative supremacy (Re CAP)  Unclear if it attaches to legislative and general decisions OTHER THAN creation of statues o Comment by Sopinka… - created uncertainty

Constitutional and Quasi-Constitutional Procedural Protections

 PP Mar.10  Constitutional = Charter  Quasi-Constitutional = Bill of Rights o Earliest expression of HR law, not constitutional document (federal statute) o Similar to rights in Charter o Passage of legislation is not protected by CBR, no right to be heard (Authorson) o Only recognizes rights of a kind that existed in 1960, when CBR was enacted (Authorson) o No right to be heard prior to the passage of a statute based on CBR Tax

ORAL HEARINGS AND S.7

 Principles of Fundamental Justice includes PF but doesn’t constitutionalise it – if there are serious issues of credibility involved, PFJ will require credibility to be determine on the basis of an oral hearing (Singh) o Procedures required to meet demands depend on the context (Charkaoui)

o PFJ ≠ PF – same principles underlie . PFJ includes PF (Singh) . Must have opportunity to adequately state their case AND know the case they must meet . Requirements will vary with context – PF will not always require an oral hearing, but may be required if credibility is at stake o Fair hearing may include right to effectively present case, may require legal counsel (NB v JG) o The greater the effect on liberty, the greater the need for procedural protections to meet the duty of fairness and requirements of PFJ (Charkaoui)

 Take national security context into account when deciding if process is unfair or flawed

 In certain situations, s.7 can override the statute where it excludes the possibility of an oral hearing – especially in refugee determination, serious interests at stake o If credibility at stake, oral hearing may be required (Singh) o Security of person must be certain

 Framework for s.7 challenge (Singh) – consider context of the case and if the statutory scheme excludes the possibility of an oral hearing o Consider the context and specific factual situation (Suresh) o At minimum, PFJ requires compliance with Baker factors (Singh) o To pass threshold of test in Singh, must show prima facie that there is a real risk of torture before being entitled to requirements under s.7 (Suresh)

1. Is s.7 engaged? – does the decision deprive, or threaten to deprive an individual in interests in life, liberty or security of person? a. Everyone = persons physically present in Canada b. Security of person = freedom from state imposed threats of physical punishment

2. If yes, is the deprivation in accordance with the principles of fundamental justice?

a. Procedurally? – are procedures by which deprivation can occur in accordance with procedures required by PFJ and PF? a.i. Must have a fair opportunity to refute case against them and must know the case against them 16 [Type text] Admin

a.ii. Assess using the Baker factors

b. Substantively? – is the deprivation itself consistent with PF?

3. If s.7 rights are at stake and it is not in accordance with PFJ, is the denial justified by s.1? a. Consider the context of the case

 Note: Charter challenge is only for cases where ordinary statutes don’t provide a sufficient remedy, don’t automatically get an oral hearing

Recall Baker factors to incorporation the common law framework under s.7 (affirmed in Suresh)

DUTY TO DISCLOSE AND RIGHT TO REPLY, DUTY TO GIVE REASONS

 S.7 grants procedural and substantive rights (Suresh)  If there is risk of deportation to torture, entitled to oral hearing and know the case against them and be able to respond (Suresh) o To pass threshold of test in Singh, must show prima facie that there is a real risk of torture before being entitled to requirements under s.7 (Suresh)  Consider the context and specific factual situation (Suresh)

 Minimum content of the duty of fairness to meet PFJ: (Suresh) o Access to all relevant information ADM intends to rely on o At minimum, a written submission with regard to danger to Canada and risk of torture and reasons for decision

 S.7 does NOT mandate a full oral hearing

RIGHT TO LEGAL COUNSEL

 PF and ROL do NOT require state to fund legal representation in admin settings (NB v JG) o In certain circumstances, where the decision impairs s.7 interests, state must provide the individual with legal counsel to satisfy requirements of PFJ

 Consider test from Singh o Is s.7 engaged? – state action must have a serious and profound effect on psychological integrity (greater than ordinary stress) o Deprivation in accordance with PFJ? – must be a fair procedure . Whether a fair hearing includes a right to state funded counsel depends on: (NB v JG)  Seriousness of the interests at stake  Complexity of the proceedings  Capacities of the individual to represent themselves o Saved by s.1?

 Remedy: if absence of counsel would result in an unfair hearing and a breach of s.7, can order 2 remedies under s.24(1) o An order that the government provide SRL with state-funded counsel; OR o A stay of proceedings Tax

UNDUE DELAY

 In criminal context, s.10 and 11 give rise to rights “without undue delay” o S.10 – right to retain and instruct counsel o S.11 – right to be informed of the specific offence o S.11 – right to be tried within a reasonable time

 Undue delay in resolution of HR complaint COULD infringe security interest under s.7 but it will be rare (Blencoe) – threshold will be VERY HIGH o Unlikely that undue delay would actually be an infringement of s.7

 If significant prejudice resulting from unreasonable delay, can warrant a stay of proceedings: o Actual prejudice to a fair hearing in evidentiary sense . Actual Prejudice: ability to answer case against them or have adequate opportunity to present their case is impaired by delay – form of denial of PF o Delay amounting to an abuse of process . Abuse of process: delay where it is inordinate or unreasonable, causes serious stress or psychological harm and stigma to reputation, brings HR system into disrepute

 To determine if a delay is “inordinate” or “unreasonable”, consider overall context: (Blencoe) o Nature of the case and various rights at stake o Level of complexity of facts and issues o Purpose and nature of the proceedings o Whether the applicant contributed to the delay or waived it

Procedural Issues

 Denial of a aright to a fair hearing must always render a decision invalid, regardless of whether a hearing would have resulted in a different decision (Cardinal)

SPECIFIC CONTENT ISSUES: PRE-HEARING

 Notice: starting point for any ADM process o Rule: Notice must be adequate in order to afford those concerned with a reasonable opportunity to present proof and arguments and to respond to those in opposition . 4 main issues with notice:  Form – written, electronic or oral  Manner of service – personally is best if serious interests at stake  Time – give long enough in advance to decide if they will participate, depends on nature of case and interests at stake

 Content – variable, depends on circumstances, must give enough information to enable the party to respond effectively o ONGOING DUTY – arises prior to making of a decision and continues throughout the course of a decision making process – must be kept appraised of any issues o Must comply with Tribunals home statute and with CL requirement to provide sufficient detail to enable the party to know what is at stake in the hearing  Sources of Notice: home statute of ADM, ATA if applicable, CL

 Disclosure/discovery of evidence to be relied on by ADM o Stinchcombe principles of disclosure do NOT apply in admin law context (May v Ferndale) – duty of PF required ADM to disclose info they relied on . Party must know the case to meet o Extent is governed by CL – degree required depends on nature of the tribunal and nature of the interests at stake (May v Ferndale) o Duty is satisfied if the party has sufficient info to make informed submissions

SPECIFIC CONTENT ISSUES: HEARING

Oral or Written Hearings

 Factors to be considered in deciding what type of hearing may or may not be listed or just generally expressed

 Whether oral hearing is required at CL depends on: (Khan) o Seriousness of the interests at stake o Whether there is significant credibility issue  When a really important decision turns on credibility, ADM should NOT make an adverse finding of credibility without affording the affected person an oral hearing (Khan) o Includes opportunity to appear, make oral representations, correct or contradict evidence on which the decision might be based

 Not typically required to reach informed decision on admin law matter  WILL BE REQUIRED where decision depends on findings of witness credibility (Singh)

 Balance fairness vs. efficiency o Can’t give oral hearing to everyone or it will clog the system – why ADM deals with this, not the courts, so it can be faster and more efficient

Right to Counsel

 NO constitutional right to counsel (BC v Christie) o If NO oral hearing – MAY be represented o If oral hearing – right to be represented is assumed and sometimes statute expressly requires it  S.32 ATA (if applicable) – party may be represented by counsel or agent

 When is counsel necessary to give party adequate opportunity to be heard, make their case? o If deprivation of s.7 rights are at stake, PFJ may require provision of counsel Tax

 3 factors to consider if state funded counsel is a matter of fundamental justice (NB, Minister of Health) 1. Seriousness of the issues and impact of the decision – what is at stake? 2. Complexity in terms of process and the law – will questions of law arise? 3. Capacity of the person affected to understand the process and participate without assistance of counsel

 Factors against providing counsel: would involvement of lawyer impair those goals? o Need for speed o Informality o Economy in decision making

Disclosure of “The Case Against” – Right to Decision “On the Record”

 Party MUST know the case which is made against them (Kane) o Unless expressly or by necessary implication empowered to act ex parte, ADM must not hold private interviews with witnesses or hear evidence in absence of the party affected  Disclosure of all the information on which the ADM will actually decide  Applies primarily at the high end of the PF spectrum where interests are at stake, wrong doing is alleged, process is adversarial

 Official Notice – at high end of PF spectrum, ADM must disclose all information on which it will based its decisions and give party an opportunity to address the information o Similar to Judicial Notice – what can ADM take “official notice” of o Problem: ADM’s often appointed for expertise so should be room for them to rely on expertise without disclosing it to the parties

Evidence and Cross Examination

 ADM can act on any logically probative material – not bound by rules of evidence unless the state says so

 Denial or limitation of ability to present evidence or cross examine witnesses could amount to a breach of PF if it prevents the party from being heard o Depends on where on the PF spectrum the case is – low end, with minimal fairness obligations, court is less likely to require cross as part of PF

 Rule: party should have ability to present and test evidence that is adequate and reasonable in the circumstances o What is required varies in relation to the level of PF required and nature of proceedings o Not absolute – ADM controls own process and may limit the exercise of the right

 Right cannot be withheld on basis that it is of limited utility (Innisfil) 20 [Type text] Admin

SPECIFIC CONTENT ISSUES: POST-HEARING

 Duty to give reasons is required in 2 circumstances and in “other circumstances” (Baker) o If decision has important significance for the individual o If the statutory appeal process exists to facilitate the working of the process – can’t determine if an appeal is required or justified if no explanation was given for the first decision provided o Other: residual discretion for courts to provide reasons, flexibility to comply with duty to give reasons

 PF ONLY asks if reasons have been given! (NFLD and Labrador Nurses Union) – if there are reasons given, there is no breach o Adequacy or quality of reasons is a question of SR

 Reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (NFLD and Labrador Nurses Union)

 Reviewing court should be attention to the reasons which could be offered in support of a decision (Alberta Teachers Association) o If there is no duty to give reasons or when there are only limited reasons required, court can consider reasons that could be offered for decision when doing reasonableness review o Must give ADM opportunity to provide reasonable basis for decision before a finding of no reasonable basis

Procedures and the Administrative Tribunals Act

 Only applies to ADM if the home statute establishes it and only to the extent that the home statute does so – can apply piecemeal or not at all o Consult home statute to determine if ATA applies o 31 ADM’s in BC and some or all of the provisions of ATA have been applicable to 26 of them at this point

 2 main sections of ATA o Provisions relating to appointment of Chairs and Members (s.2-10) . S.2-3 – merit based process for appointments of Chairs and members o Provisions relating to ADM powers (s.11-61)  Pg. 105 of John’s outline for details

 Impartiality and independence – was the ADM coloured by bias? o Impartiality: neutral position, fair chance to present case o Independence: unrelated to political actors, like judges  Reasonable Apprehension of Bias o Perceived bias either on the part of the individual ADM or at institutional level

 Rule against Bias – Nemo judex Tax

o Aim to foster public confidence in process and substance of administrative justice and to foster the legitimacy and acceptability of decisions . To promote substantive fairness – better decisions . To support participatory procedural rights . Impartiality principle is linke to ROL and pursuit of equality  Must be governed by known laws and applied even-handedly so like cases are treated similar, without favouritism  Demands non-discrimination o Justice required decision be made by an impartial, unbiased decision maker o Will vary based on context of ADM’s activities, nature of functions (Imperial Oil)

 Justice must not only be done but must also be seen to be done (Sussex) o Public perception is very important – confidence in ADM will not be achieved unless the appearance of bias is avoided, as well as actual bias

 Allegations of bias must be brought to ADM by party alleging it on the first available opportunity o If successful, decision will be quashed and have proceedings reheard by a new panel

 Note: doesn’t require an “opinion free zone” and no need to prove actual bias o Does NOT encompass any and all pre-disposition or attitudes ADM may have – will bring own values and beliefs to the table, must take this into account in a reasonable way o Not required to discount life experiences, attitudes or sympathies o Recognize that ADM’s are appointed because of experience and ability to represent certain interests – must be accommodated in the law of bias

 Attitudinal and behavioural component o Beliefs must actually cloud judgment to amount to bias o True impartiality requires an open mind  To be impermissible bias, must be a disqualifying bias – differs in different contexts (Imperial Oil)

LEGAL EFFECT OF BIAS

 If bias is found, it disqualifies ADM from making a valid decision and causes loss of jurisdiction  Potential remedies: o If complaint before decision is made - Basis for order of prohibition BUT court often refuses until ADM has made final decision (premature application) o If complaint after decision is made- quashing decision or setting it aside as invalid

BASIC TEST FOR RAOB

 No need to prove ACTUAL bias in ADM – enough to prove a Reasonable Apprehension of bias o Actual bias would be difficult, would have to know inner state of mind – concerns about practicality 22 [Type text] Admin

 Context specific and will be applied flexibly – apply on spectrum to account for different context o Different level of tolerance for pre-existing attitudes depending on nature of decision, nature of ADM and statutes o More court like = ROAB stricter o Discretionary, policy based = flexible ROAB o Spectrum for ROAB (NFLD Tel)

 Test for Reasonable Apprehension of Bias (National Energy Board) o Ask: what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? . ROAB = If reasonable person would conclude ADM may be influenced to favour or disfavour a side because of some kind of interest of prejudice the ADM has in the outcome . Reasonable person must be informed of all relevant circumstances and not have a very sensitive or scrupulous conscience (R v S(RD))

o Objective Element (R v S(RD)) . Person considering the alleged bias must be reasonable; AND . The apprehension of bias must also be reasonable in circumstances

o Grounds for ROAB must be substantial (R v S(RD)) . Do not need to show the bias affected the decision – enough that it might reasonable be perceived to have done so (National Energy Board)

o Allegations should be made lightly – mere suspicion isn’t enough

 Relaxed test: in cases of pre-judging a matter (with municipal councillors), policy-oriented boards for comments made prior to the hearing (subject to normal ROAB when hearing commences) o Test: have they kept an open mind and remained amenable to persuasion o If closed mind = bias

PECUNIARY OR OTHER MATERIAL INTEREST IN OUTCOME

 Definition: has pecuniary, economic interest in outcome of decision, stands to benefit or lose from decision in a material sense that will have impact on finances

 Stricter test – any direct personal pecuniary interest is enough to disqualify (Energy Probe) o In this case, bias is presumed and disqualification is automatic, no test  Direct pecuniary interest = sufficiently certain, not too remote and not contingent (Energy Probe)  If indirect financial interests, ROAB test applies flexibly (Pearlman)

PERSONAL OR BUSINESS RELATIONSHIP

 Definition: ADM has past OR present relationship with either parties directly involved in decision as parties or counsel OR with those who have an interest in the outcome in the sense that they may either gain a benefit or suffer a loss as a result o Family, business, professional, associational, friendship (Bennett and Doman) Tax

PRIOR KNOWLEDGE OR INVOLVEMENT

 Definition: some kind of pre-existing relationship between ADM and general subject-matter at issue in decision o Prior involvement with specific case or issue OR where ADM has previously expressed strong views and opinions on matters at issue

 ROAB must be reasonable, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information (minority of Committee for Liberty and Justice)

ATTITUDINAL PREDISPOSITION AND CONTEXTUAL STANDARDS

 Attitudes or comments of ADM that suggest they are predisposed to certain outcome o Concern about stereotyping (R v RDS) o As long as statements do not indicate a mind so closed that any submissions would be futile, they should not be subject to an attack on basis of bias (NFLD Tel)

DEFENCES TO BIAS

 Statutory authority – expressly or by necessary implication authorizes ADM to decide matter despite there being an otherwise disqualifying bias  Necessity – if ADM with bias is ONLY POSSIBLE ADM authorized to make the decision, it must be accepted despite ROAB  Waiver – if party knows of bias, can waive it expressly or impliedly o Implied – knew about the bias and knew they could object, but elected to proceed without making objection

INDEPENDENCE

 Subsumed under Bias but now treated as separate issue o Can refer to specific ADM or institution/tribunal as a whole

 Individual – inappropriately dependent on someone else in DM process o Higher end – required to make up their own mind

 Institutional – agency must be free from interference or control, especially executive or political branch of government o Similar to judicial independence o Use Valente criteria: security of tenure, remuneration and security/independence in administration of cases o Still uncertainty here

24 [Type text] Admin Tax

Substantive Review

 Standard of Review – legal issue, level of scrutiny of decision by courts  Ability of ADM to consider constitutional questions – danger of getting it wrong

Introduction to SR

 Initially a threat to parliamentary sovereignty and ROL because powers were delegated by executive branch and operated outside legislative scrutiny o As it expanded, approach by court was more deferential  Characterized now by point effort in governance – reoccurring problems from privative clauses, broad discretion and choice of SOR

APPLICATION OF ATA

 S.58 – SOR if tribunals home statute has privative clause o (1) – relative to the courts, the tribunal must be considered to be an expert in relation to all matter over which it has exclusive jurisdiction o (2)(a) – a finding of fact or law or discretion by tribunal in respect of matter it have exclusive justification over under PC must not be interfered with unless PU o (2)(b) – questions about CL rules of NJ and PF must be decided, in regard to all circumstances, if the tribunal acted fairly o (2)(c) – for all other matters other than those in (a) and (b), SOR is C o (3) – discretionary decision is PU IF the discretion: . (a) – is exercised arbitrarily or in bad faith . (b) – is exercised for an improper purpose . (c) – based entirely or predominantly on irrelevant factors . (d) – fails to take statutory requirements into account

 S.59 – SOR if tribunals home statute has NO privative clause o (1) – in JR, SOR is C for all questions regarding exercise of discretion, findings of fact and application of CL rules of NJ and PF o (2) – court cannot set aside finding of fact UNLESS there is not evidence to support it or if the finding is otherwise unreasonable o (3) – a court must not set aside a discretionary decision unless it is PU o (4) – discretionary decision is PU if discretion: . (a) – is exercised arbitrarily or in bad faith . (b) – is exercised for an improper purpose . (c) – based entirely or predominantly on irrelevant factors . (d) – fails to take statutory requirements into account o (5) – questions about application of CL rules of NJ and PF must be decided by having regard to whether the tribunal acted fairly

 First determine if ATA applies to tribunal, under its home statute o If s.58 or s.59 apply, it represents a complete code of possible SOR  Then ID the type of question in issue o Once ID’d, reviewing judge must apply the mandated SOR

Development of the Law

STAGE 1: PRE-CUPE (CORRECTNESS)

 Used “preliminary questions doctrine” to determine “jurisdictional questions” that could be reviewed: o If jurisdictional question, the standard is C . Have to get these questions right in the eyes of the court or the court would overrule them o If NOT jurisdictional, decision is NOT REVIEWABLE  Problem: turns into an all or nothing approach, too formalistic and not contextual o Devices used by the courts to meddle in ADM area where they had been explicitly excluded from o Could frame ANY question as jurisdictional and review on C

 PC cannot oust JR of jurisdictional problems because of s.96, courts can review these decisions (Crevier), BUT could oust court’s JR on other questions

 What are jurisdictional questions that can be reviewed? o Preliminary question doctrine = jurisdictional question was one that was preliminary or collateral to the main issue that ADM had jurisdiction to address

STAGE 2: CUPE (CORRECTNESS AND PATENT UNREASONABLENESS)

 Expansion of judicial deference in ADM decisions (CUPE) – CUPE put courts on path to deference and end of ROL approach o MAJOR TURNING POINT – called for restraint by courts when dealing with ADM

 Addition of new SOR – Patently Unreasonable (CUPE) o Correctness: used for jurisdictional questions, questions of law . Correct in the eyes of the court (CUPE) o Patently Unreasonable: matters within core jurisdiction (heart of the case) are not entirely immune from review – expanding reviewing role of court, in line with ROL . “Patently” signals high deference

 Rejection of preliminary question doctrine (CUPE) – defines “jurisdictional” questions very narrowly, to give deference

 More deference based on PC (CUPE) – clear signal from legislature that they wanted ADM decision shielded from JR on C standard so deference was needed o Recognition that ADM’s are specialized bodies that have mandate to apply their expertise and experience to matters they may be better suited to address o Must respect the specialized jurisdiction of ADM Tax

STAGE 3: AFTER CUPE

 Continuing trend towards more deference and more SORs – chipping away Dicyan theory o Still back and forth o No clearly articulated conception of what ROL is, different conceptions

 Bibeault: started backtracking from CUPE because Beetz introduced the “pragmatic and functional approach” to decide legislative intention, then decided Q of statutory interpretation on C standard o More conservative o Predecessor to PFA from Pushpanathan, post Dunsmuir

 National Corn Growers: wouldn’t interfere with specialized ADM decision regarding their areas of expertize if decision wasn’t PU, shift away from Dicey rules and ROL o If decision of ADM was within expertise and not PU, court will NOT interfere

 Mossop: noted other reasons for deference other than existence of PC

 Pezim and Southam: deference can apply in situations where court exercised appeal jurisdiction and grounds for appeal included an error of law o Both had NO PC in economic sector, had broad appeal provisions but court extended deference anyways – idea of expertise of the ADM, moving towards functionalist approach to ADM’s o Created Reasonableness Simpliciter

STAGE 4: INCREASING COMPLEXITY IN DETERMINING SOR

 PFA from Bibeault is reinstated in Pushpanathan and exemplified in Ryan o All approaches unified in Pushpanathan – trying to determine which standard should be applied when deference is called for: PU or RS

 Must always determine appropriate SOR (Pushpanathan) – must always go through PFA factors o Problem: adds complexity and time to cases – gives rise to calls for simplification

 Now SOR determined backwards – If SOR is C, then necessarily it will be a jurisdictional question o “Jurisdictional” is emptied of all meaning (Pushpanathan) – not relevant in analysis

 RS is a range on the spectrum – issue of whether it floats or not (Ryan) – Ryan states RS does NOT float o 3 standards for JR: C, RS and PU – PFA will determine which is appropriate o Decision is only unreasonable if there is no line of analysis within the reasons that could reasonable have led the ADM from the evidence to its decision (Ryan)

. If any reasons are sufficient to support conclusion, that can stand up to a somewhat probing examination, decision will NOT be unreasonable

Pragmatic and Functional Approach

 Inquiry: did legislator intend that the courts defer to ADM with respect to the issue? o Pragmatic and Functional Approach – consider 4 factors: (Pushpanathan)

1. Privative Clause or Appeal Provision a. Not as important as it used to be – existence/non-existence is only 1 factor b. Strong PC = deferential – shows direct intention of parliament c. Weak PC is neutral

2. Expertise a. Relative expertise compared to court based on specific question b. MOST IMPORTANT FACTOR c. Look at ADM – appointed for expertise? Bring something different like non- legal perspective? c.i. Follow a different process than a court? d. Unwilling to defer on HR matters – courts feel they have expertise in these matters (Pushpanathan)

3. Purpose of the Act a. Polycentricity principle – look at purpose of act as a whole and provision in particular b. Is activity similar to what a court does? – adjudication between 2 parties solving dispute on basis of law = less deference b.i. If Polycentric model that is about interest balancing, policy and protecting public interest = more deference

4. Nature of the problem a. Questions of law = points to C a.i. If pure Q of law, strong presumption in favour of C b. Questions of fact = points to deference c. Questions of mixed law and fact = points to deference c.i. Level of deference depends on how many facts are at issue c.ii. If Q of law can be separated, points to less deference

 After going through analysis, if the SOR is C, then you can say it is jurisdictional question

STAGE 5: PRE-DUNSMUIR CRITIQUES OF SOR

 LeBel commented on problems with current approach to SOR in “Cri de Coeur” in Toronto v CUPE 2003 – in favour of 2 standard system of review (C and R) o Framework was too complex and length, difficult for lower courts to follow o Confusion between PU and RS Tax

 BC legislated SOR for tribunals with s.58 and 59 of ATA – preserve pre-Dunsmuir concepts, in particular PU is SOR in certain circumstances o If s.58/59 apply to the tribunal through the enabling statute, PU can apply o BC’s process diverges from the national norm established by SCC in Dunsmuir o This approach was found to be constitutional – PU lived on post-Dunsmuir and legislature can legislate how courts carry out JR (Manz) . Tell courts how to review certain ADMs . PU takes meaning from CL pre-Dunsmuir (Manz) o Low Threshold: It there is ANY evidence to base its reasons on, the decision will NOT be PU (Manz)

Dunsmuir: Simplifying SOR

 Defines Reasonableness: “due consideration” to determinations of ADMs o Concerned about justification, transparency, intelligibility with DM process o Concerned with whether decision falls within range of possible outcomes  SOR has 2 standards – C and R o No spectrum of R – it is concept and there is no sliding scale (Modernising JR) o Intended to create more coherent framework (Modernising JR)

 Introduces categorical analysis – presumption of R can be defeated/rebutted through categories

 Defeasible rule methodology/categorical analysis – consider all factors together: o PC – indicates need for deference o Discrete and special admin regime in which ADM has special expertise o Nature of the question of law – Q of central importance to legal system, outside specialized area of expertise of ADM will always attract a C standard (Toronto v CUPE) . Court will substitute their view in this case  Review is not required in every case – consider case law to determine

 Makes PC essentially useless – default position is deference, only single standard of R and PC doesn’t trump the exceptions to the presumption of deference

o Minority, Binnie: PC shows that a level of respect must be shown, essentially PC used to calibrate sliding scale of R o Majority : rejects the sliding scale, standard of R will not slide, didn’t deal with how to assign weight to PC

 Khosa, Majority: PC is important indicator of legislative intent, but don’t deter judicial intervention, didn’t want to rollback o Adds uncertainty about weight that statutory right of appeal/PC has as compared to deference

o Minority, Rothstein: PC shows legislative intent, importance of its absence – wants to roll back to when judge knew best about Q of law and discretion unless PC was used (Diceyan attitude) . R is SOR BUT, basis for deference is in statutory provisions dealing with errors, not in broader deferential stance

 Problems: can PFA balancing approach co-exist with Dunsmuir’s methodology and categorical approach? – difficult to reconcile o Binnie: making 2 standards instead of 3 just shifts the congestion of analysis from one spot to another . Issue is now deference to be accorded within R standard – before issue was which standard to apply . Issue of degree of deference remains . Now R will incorporate degree of deference (reflected in difference between PU and RS) AND assessment of range of options open to ADM in circumstances . If dealing with home statute and PC = reasonableness o

DUNSMUIR FRAMEWORK

 TEST: - SOR analysis o contextual analysis, depending on factors (not necessary to consider all factors) 1. Has jurisprudence already determined in a satisfactory manner the degree of deference to be accorded? 2. Consider if the issue fits into any of the categories of presumptions (Alliance Pipeline) 3. If not, consider the factors to ID the proper SOR: a. Presence of PC b. Purpose of ADM as determined by enabling legislation c. Nature of question d. Expertise of tribunal  Legislature does have power to specify SOR if it manifests a clear intention to do so – Federal Courts Act sets grounds (Khosa)

 Presumptions

 Correctness: (Alliance Pipeline) o Constitutional issues (Alberta’s Teacher’s Association) o Question of general law that is of central importance to the law in general and outside specific area of expertise (Alberta’s Teacher’s Association) o Where 2 tribunals claim jurisdiction o A true question of jurisdiction – exceptional area, not seen since Dunsmuir

 Reasonableness: (Alliance Pipeline) o Interpretation of ADM’s home statute or statutes closely related to its function . Deference in this case (McLean) – defer to any reasonable interpretation adopted by ADM, even if other interpretations may exist o Questions of fact, discretion or policy o Mixed fact and law Tax

o Arbitral case law (Irving Pulp and Paper) – reasonable application of the law will require deference and R

IMPACT ON ATA

1. FIRST STEP: LOOK AT HOME LEGISLATION – ATA only applies to the extent the enabling statute provides (Lavender Co-Op) 2. If s.58/59 apply, that section represents the complete code of possible SORs o If they apply, ID type of question at issue o Reviewing judge must apply mandated SOR o Extent of exclusive jurisdiction under s.58 where there is PC, is determined by wording of PC and is a matter of statutory interpretation (Jestadt) 3. If neither is applicable, court must apply common law from Dunsmuir framework

 May be able to separate out questions of mixed fact and law but subsequent cases haven’t adopted this (Coquitlam School District)

 Meaning of PU post-Dunsmuir and ATA – high end of deferential spectrum, retains pre- Dunsmuir character = considerable deference (Khosa) o “Considerable deference” was first used in Pezim, talking about RS, not PU – may have been conflating the 2, which was concern pre-Dunsmuir

 SOR analysis is not applicable to matters of PF (Seaspan Ferries)

POST-DUNSMUIR DEVELOPMENTS

 What happened to Jurisdiction? o Currently unclear whether jurisdictional question will die or just lay dormant until SCC decides to resurrect it (Alberta Teacher’s Association) o Initially wasn’t a decision that was insulated form JR, even in presence of PC o Later serious attention to jurisdiction disappeared after Southam – could justify deference in absence of PC and justify C in presence of PC . Became a label to attach to outcome reached by balancing of PFA factors o Dunsmuir: revived idea of jurisdiction as concept capable of rebutting presumption of deference – does NOT frame questions in this way though (“does statute authorize the ADM…”) o Restraint in labelling an issue jurisdictional – are exceptional, none before the court since Dunsmuir (Alberta Teacher’s Association) . Unable to give definition of true question of jurisdiction (Alberta Teacher’s Association)

o Alberta Teacher’s Association: Cromwell – warns that position on jurisdiction could undermine JR, but this ignores other basis for application of C, apart from jurisdiction

. Binnie – agrees that jurisdiction is fundamental BUT endorses the euthanizing of the issue because of practical issues – wants R as spectrum and enlarge Q of central importance to legal system

o Questions which may have previously been considered jurisdictional should now be dealt with under SOR analysis from Dunsmuir (Mowat) . Narrowly interpreted

 What happened to Patent Unreasonableness? o Dunsmuir got rid of it BUT it will live on in BC because of ATA o Not required to interpret PUT because it is defined under the ATA according to pre- Dunsmuir (Figliola) o Highest level of deference available under admin law principles is R – respect questions within specialized expertise of ADM UNLESS not rationally supported/unreasonable (Shaw v Philips)

 What is a question of Central Importance to the legal system as a whole and outside of ADM’s area of expertise? o Expertise is not focus of evaluation (Dunsmuir) o These are assigned a C standard ONLY if there are outside specialized area of expertise of the ADM (Dunsmuir) o HR ADM typically attracts little deference – central importance! o Post Dunsmuir SOR analysis ≠ pre-Dunsmuir PFA factors

REASONABLENESS POST-DUNSMUIR

 Builds on reasonableness from Southam, Ryan and CUPE – tries to offer clearer guidance o Decisions should stand unless it cannot be rationally supported by relevant legislation of evidence

 Does Dunsmuir help? o Instability of case law in applying deferential standard between: . Judicial supremacy – setting strict limits within with ADM reasoning must be closely hedged . Judicial abdication – refuse to look too deeply into reasoning or evidence or revisit ADM assessments of weight of factors o Step in the right direction after Dunsmuir

 Deference as respect – attention to reasons offered or which could be offered in support of the decision, respect for ADM process o Respect for government decision to create ADM with delegated powers o Questions before ADM give rise to a number of possible outcomes and reasonable conclusions, not just one result

 Reasonableness is concerned with justification, transparency, intelligibility within process and if decision falls within range of possible, acceptable outcomes that are defensible in respect of facts and law o Reasons must be read together with outcome to see if it falls within acceptable range of possible outcomes (NFLD Nurses Union) o Common sense inquiry Tax

 Replaces depth of probing and magnitude of error: justification, transparency, intelligibility

 Developments

1. Distinction: review to determine if duty to give reasons is met vs. review for substantive reasonableness

2. Idea that reasonableness takes colour from context a. No reasons vs. substantive unreasonableness – low threshold should apply in determining if reasons have been provided as matter of PF (NFLD Nurses Union) a.i. Questions about the quality of reasons is matter of SR a.ii. Shifts question of whether the reasons adequately support or justify a decision to substantive review b. Contextual dimension of R – once it is determined that review is on R, there is no second assessment of how intensely the review will be (Alberta, Privacy Commissioner) b.i. Each instance of R is governed by context – it will be informed by contextual factors such as the nature of the question

Judicial Review of Discretionary Decisions

HISTORICALLY

 Discretionary decisions (ie. admin decisions) were seen as political decisions and thus not subject to ROL – outside legal sphere  Quasi-judicial and judicial questions were subject to ROL – applied rules, led evidence and were determined by precedent o NO discretion  Discretion was considered to be untrammelled and unfettered

TRADITIONAL APPROACH: ABUSE OF DISCRETION DOCTRINE

 Discretionary decisions are subject to ROL – no separate legal and political spheres (Roncarelli) o All decisions must be made within parameters of statute o No such thing as absolute and untrammelled discretion  Discretion implies good faith in discharging public duty – must take into account relevant considerations and ignore irrelevant considerations (Roncarelli)

MODERN APPROACH

 Rejection of binary of discretionary and non-discretionary decisions (Baker) o Decisions are composed of a mixture of the 2

o Exercise of discretion and interpretation of rules involve making choices between various options – both subject to form of control

 Reviewed under PFA – if highly discretionary, this will be factored under statutory purposes and nature of the problem factors (Baker) o Must be given leeway but must be exercised within boundaries of statute

 Not allowed to re-weigh factors or interfere with discretionary decision on basis that court would have come to different decisions (Suresh) o Ensure that the relevant considerations were taken into account by ADM but CANNOT re-weigh them

 SOR is R when fugitive’s Charter interests are engaged, re: extradition (Lake) o If proper test used and reasons provided a sufficient basis for decisions, should not interfere or re-weigh

 For discretionary decisions, 2 step Test to ID SOR: (Agraira) 1. Consider whether the level of deference to be accorded with regard to type of question has been dealt with in jurisprudence 2. If not dealt with or relevant precedent is inconsistent with recent developments in CL principles of JR, court performs full analysis to determine applicable standard

Further Constitutional Issues Related to SOR Analysis

SOR FOR CONSTITUTIONAL DETERMINATIONS

 Old Framework (Slaight Communications) o Determine if order was made pursuant to legislation that confers power to infringe a protected right . If yes, legislation itself must satisfy s.1 test . If authority to infringe is not express and provides broad discretion, then the order itself must satisfy s.1 test o If it cannot be justified under s.1, ADM has exceeded jurisdiction

 New Approach (Dore v Barreau du Quebec) o Oakes test does NOT apply in admin law – question is whether the decision reflects a proportional balancing of Charter rights and values o If legislation confers authority to infringe protected right and the authority is justified under s.1 – determine if particular exercise of authority is reasonable in admin law context . Whether it is reasonable = reflects balancing, captures s.1 considerations o Reasonable when an appropriate balance is struck between ADM mandate and Charter rights at issue – weighing of factors o If authority to infringe is explicit = SOR of C o If authority to infringe is discretionary = SOR of R o If discretionary and deals with Charter values, doesn’t necessarily have to be C o Rationale of deference – acknowledge ADM expertise in adapting Charter values to matters within ADM’s expertise Tax

o Major step forward but still questions: . Remedies be informed by Charter values? . Who has onus of determining the breach is reasonable?

JURISDICTION: ABILITY TO CONSIDER CONSTITUTIONAL ISSUES

 Authority to interpret law must be conferred by home statute since ADM has no inherent authority to decide Q’s of law (Cooper) o Dissent: all law and law-makers that touch people must conform to Charter

 If legislation doesn’t expressly grant jurisdiction to consider QoL, jurisdiction may be implicit and inferred from factors: (NS v Martin) o Statutory mandate and whether considering QoL is necessary to fulfill mandate o Interaction of tribunal with other elements of admin system o Whether ADM is adjudicative in nature o Practical considerations – capacity to consider QoL  Guiding principle: whether legislature intended ADM to have jurisdiction to consider QoL o Presence of intent isn’t the end but establishes rebuttable presumption that ADM has jurisdiction to apply the Charter  Presumption that if ADM has ability to consider QoL, it has ability to consider constitutional questions – consider evidence to rebut (Paul)

 Charter Remedies: consider test from NS v Martin and unless there is clear demonstration to withdraw Charter from ADM authority, it will be a court of competent jurisdiction to deal with Charter remedy (Conway)

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