Judicial Review: Substantive

Threshold: Privative Clause – pg. 32-34

1) What is judicial review of substance? o This is not like procedural fairness where the standard of review is always correctness . When called on to conduct a review of the interpretation or application of a statutory provision by an administrative decision-maker, court will first determine that the decision-maker will merit deference o Deference = respectful attention to the reason offered + could be offered in support of the decision . Very in line w/the romantic view of substantive review – expression of a shared constitutional project: state action must be grounded in + so publicly justified in light of the law o Tension between court patrolling administrative action tin accordance w/the rule of law + democracy

2) Courts treatment of privative clauses: manifestation of the tension o PC = legislature has indicated that a tribunal’s jurisdiction in exclusive (grant of EJ), the decision is final and conclusive (finality clause), and not open to review by any courts (ouster clause) o CUPE = courts should respect the decisions of the board by not being so quick to frame questions as one of jurisdiction in order to wade in . PC – not completely protected from JR, but the PC moves the standard to PU (obviously not anymore) . In line w/pragmatic approach to statutory interpretation – not always one interpretation . Attitude of curial deference to specialized bodies w/a legislative mandate to apply the expertise to matters they are better suited to than the courts o Crevier, Pasienchyk = use the rule of law to constitutionalize the courts’ right to judicially review administrative bodies for jurisdictional matters even if there is a PC o Bibeault = Beetz tries to distinguish jurisdiction/non-jurisdiction conferring provisions by asking: what does the legislation say about who the decision-maker is supposed to be? . Commitment to Parliamentary supremacy o Pezim – no privative clause/no right of appeal but deference show to the decision of the Securities Commission on a matter that falls squarely within its expertise o Southam – created new standard of reasonable simpliciter requiring an inquiry into the foundation/logical process by which conclusions sought are to be drawn from

What Standard of Review Applies? – pg. 35-36

1) What standard of review applies? – go to Dunsmuir o “First, courts ascertain 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. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.” o Has the jurisprudence determined in a satisfactory manner the degree of deference to be accorded with regards to a particular category of question? Is there a precedent? . Can still use pre- Dunsmuir cases for precedent o If not, then look to the factors . “(1) the presence of 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.”

2) Past jurisprudence – precedents o Northrop Grumman = correctness standard is rarely used + unlikely to be employed w/out satisfactory precedent . Adverse to “true question of vires” even w/a precedent so they will do it obliquely . Precedent here was prior cases dealing w/this statue + similar types of questions the SoR was correctness o Catalyst Paper – no useful precedent b/c this was an outlier on its facts, municipality w/elected representatives., SoR is reasonableness o Agraira – precedent indicates a SoR so the court went with this

3) Factor #3: is this the type of question that attracts the standard of correctness? o Recall, this standard is rarely used b/c of deference to decisions of administrative tribunals o Dunsmuir = you get the standard of correctness in the following four situations . (1) Where the question of law is of “central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, . (2) Constitutional questions regarding the division of powers and others,  Substantive review of a tribunal’s constitutional analysis of a home statute (including home statute) = correctness . (3) In “true” questions of jurisdiction “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter,” . (4) In “questions regarding the jurisdictional lines between two or more competing specialized tribunals

4) Factor #3: is this the type of question that usually attracts the standard of reasonableness? o Fact = reasonableness o Mixed fact & law when they cannot be separated= reasonableness o Discretion = reasonableness o Law when the decision-maker is interpreting its home statute/closely connected statute + particular expertise/regulatory function . See Factor #4 re: expertise

5) Factor #4: what is the tribunal’s expertise? Is it a distinct + special administrative regime? o Throwback to the Pushpanathan 3-step analysis . Characterize the expertise of the tribunal in question  Southam – court will show considerable deference (indicates reasonableness) when the tribunal has “broad relative expertise” that it brings to bear to some degree on the interpretations of highly general questions . Consider the court’s own expertise relative to that of the tribunal  Apex of deference (strong indication of reasonableness) = economic, financial, technical matter  Bottom of deference (much less deference) = human rights tribunals b/c rights adjudication is at the heart of the courts’ judicial function . Identify the nature of the specific issue before the administrative decision-maker relative to this expertise  A highly specialized tribunal like the Securities Commission can be accorded deference even in the absence of a privative clause - Pezim

6) Factor #1: presence or absence of a privative clause o This says a lot about what the legislature intended re: who should the decision maker be – Bibeault o Presence of a privative clause = a strong indication of reasonableness but cannot keep courts out conclusively - Crevier, Pasienchyk Applying the Standard of Correctness: Was it Met? – pg. 37-38

1) What does this analysis look like? o This is a de novo review w/no deference – thee goal is to reach the one right answer . This is underpinned by the skeptic approach – courts are patrolling the exercise of administrative power . Courts impose + substitute their own answer – tribunal’s decision is quashed o Mossop – correct answer is derived using Driedger’s modern principle w/a focus on legislative intent + textual analysis . Use of statutory interpretation o Northrop Grumman - likely a true question of vires but the court does not say so explicitly o Often courts will often says the SoR is reasonableness but then do something that looks like correctness – Alberta Teachers, Dunsmuir

Applying the Standard of Reasonableness: Was it Met? – pg. 38-43

2) What are the courts getting at with a reasonable analysis? o “In JR, 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.” – Dunsmuir o “Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence of substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes.” – Khosa  As per David Dyzenhaus: Deference is “respectful attention to the reasons offered or which could be offered in support of a decision.”  This is not a de novo review + do no reweigh the factors the tribunal considered

3) What if there are no reasons? – this is a PF issue o Whether there are reasons or not is a question of procedural fairness and not standard of review o Baker – sometimes PF requires provision of a written explanation for a decision (important significance for the individual, statutory right of appeal, maybe other circumstances you need some form of reasons) o Newfoundland Nurses – different standard for reasons in PF + SoR, two separate analyses, deficient reasons can suffice on the reasonableness standard of review o Do not conflate the requirement for reasons with the assessment of how good the reasons are

4) Assessing the quality of reasons = SoR o Catalyst Paper – no written reasons provided, court accepted the municipal’s reasons for the bylaw as self-evident (socioeconomic factors) . Reasonableness is not a spectrum, it is a single but flexible and deferential standard that takes its colour from the context. . A lot of deference for the municipality o Newfoundland Nurses – in a reasonableness review the default position is to supplement rather than subvert the reasons . Deficient reasons will often be enough if they show why the tribunal made its decision or the outcome is in a range of reasonable alternatives o Alberta Teachers – continues to erode the reasons requirement (ethos of justification), court can find implied reasons by looking at other similar decisions made by the tribunal . Especially appropriate when there is no duty to give reasons + only limited ones required o Agraira – goes even further and infers reasons . “Had the Minister expressly provided a definition of the term ‘national interest,’ it would have been one which related predominantly to national security + public safety, but did not exclude other important considerations.” o McLean – apparently no need to remit reasons when everything is readily apparent, can see the reasons are apparent from arguments raised by counsel

5) Then, is the decision within a range of possible, acceptable outcomes which are defensible in respect of the facts and law? o Celgene – to decide if the decision was reasonable look at the board’s mandate (here it was consumer protection) o Nor-Man – legally incorrect use of ‘estoppel’ was found to be okay due to the board’s broad mandate/role in fostering good labour relations (arbitrator), this was therefore a reasonable remedy . Insane amount of leeway to decisions of administrative tribunals when the outcome can be justified as “transparent, intelligible, justified, and coherent.” o Catalyst Paper – a more democratic decision maker so can look to distend considerations

Discretionary Decisions: pg. 1,2, 39-40

1) Discretion decisions are subject to the standard of review analysis – not a separate category beyond the law o 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 . Common = Ministers, Governors-in-Council etc. . Seen re: use of “may” and “shall” in the enabling statute  Broad delegation of power through vague language + authorizes administrative action/decisions aimed at small groups/individuals o Baker – rolls discretionary decisions into the SoR analysis, decision maker must be given leeway to exercise the conferred discretion but must act within certain limits . Unreasonable b/c manner in which it was reached was inconsistent w/the values underlying the grant of discretion o Suresh – when reviewing these discretionary decisions courts can only ensure that relevant considerations have been taken into account . Cannot reweigh factors o Roncarelli – “…no such thing as untrammelled “discretion”…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.” Standard of Review + the Charter: pg. 43-47

1) At the tribunal: should they have the general jurisdiction to apply the Charter? o s.24(1) – anyone whose rights or freedoms as guaranteed by this Charter have been infringed or denied can apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances . Tribunals can examine Charter questions – Cooper, it is not a “holy grail” o Two part-test from Conway, (SCC 2010) when deciding if a tribunal is a court of competent jurisdiction . Look to the enabling statute + ask if this court can decide questions of law + if so has this power been removed by the legislature? . Next, if this is a court of competent jurisdiction ask on a case-by-case basis if this board has the jurisdiction to grant the remedy sought?

2) Where else have we seen the Charter? o Recall, substantive review of a tribunal’s constitutional analysis of a statute = correctness o Recall, whether a tribunal can even consider and apply the Charter = Conway o Recall, whether the structure set up by a tribunal accords with the Charter = procedural fairness

3) How is Charter review of decision/interpretation/action to be conducted + how does it different from “normal” JR in administrative law? o Starting point = Doré . Standard of review likely = reasonableness . Moves beyond Multani where the court applied the Oakes test b/c a Charter right was at stake . Requires a “richer conception of administrative law” than the formulaic approach to the Oakes test  Distil the Oakes test down to its relevant aspects of balance and proportionality  Then the court should consider and define the statutory objectives of the tribunal’s enabling statute  And ask how the Charter values at issue are best protected in view of the statutory objectives o BUT – note Loyola where a 3 person concurring judgment just straight up ignores Doré - majority applies it though . This concurring judgment just says that any religious organization can claim the benefit of s.2(a)

Charter Overview

Charter + Admin Bodies  Challenging statute before Court? Normal Charter analysis  Challenging statute before tribunal? Charter applies to admin body, body must apply Charter  Admin bodies may be Courts of Competent Jurisdiction for Charter remedies, per Conway Procedural Fairness  Charter s.7 POFJ uses Baker procedural fairness to assess  If POFJ infringed, follow with Oakes test (Charter s.1) Substantive Review  Use enriched admin law (incl. proportionality & balance) not Oakes test: Doré  SoR = correctness re Charter interpretation or application to statute, per Dunsmuir, Doré  SoR = reasonableness for discretionary decisions, Charter application to specific facts (Doré)