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Admin Final Outline – Janisch Spring 2010 Stephanie Walsh

“Not all Administrative bodies are the same. Indeed this is an understatement. At first glance, labor boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate” o LeBel in Blencoe v. BC (HRC)

Chapter 8 Standard of Review: The Pragmatic and Functional Test

Introduction  JR of admin action brings up different sets of questions than normal court proceedings o Is there always only one correct answer? o Who is better situated to determine the answer; the first level specialist decision- maker or the generalist reviewing judge?  A court called upon to review the interpretation or application of a stat provision by an admin decision maker will apply a pragmatic and functional test to determine who, as between the court and the decision maker, is in the best place to make the determination of the issue  The rest of the test tells the court how much deference to give the original decision  Deference  quantified through standard of review applied to the impugned decision  While procedural matters usually review on correctness standard, and there is strong access to courts  Substantive matters  argue for higher levels of deference, less access (though not entirely cut off from court) The Prequel (“Bad Old Days”)  JR ordinarily available for: 1) breaches of procedural fairness 2) errors of law 3) abuse of discretion 4) factual findings made in the absence of evidence  Review in face of privative clause was all or nothing: o If a decision is within jurisdiction (within ambit of Priv. Clause), hands off o If a decision is outside jurisdiction = review  Used to be 2 techniques used by courts to get around privative clauses/justify reviewing a decision for being outside jurisdiction: 1) “preliminary/collateral question” doctrine (used in Parkhill) . by asking a collateral question at outset, tribunal goes beyond its jurisdiction 2) “asking the wrong question” doctrine (used in Metropolitan Life) . These techniques criticized as devices manufactured by courts to meddle in spheres that the leg. had deliberately and explicitly excluded them from  Privative Clauses o “Red flags” waves in front of courts o Courts WANTED to challenge them o Judges were immediately sympathetic to your cause, and would ignore the tribunal’s decision in favor of substituting its own o Courts would use “jurisdiction” to say an admin body had no place to make the decision and  could get in . “Decisions or findings that are not lawfully made are nullities; one way in which a decision may be unlawfully made is where the decision maker lacks jurisdiction (legal authority) under the constitutive statute to make the decision; therefore, decisions or findings that are insulated by a privative clause do not include actions that exceed the jurisdiction granted to the decision maker” Excerpt from Anisminic o Why jurisdiction? Courts must always be subject to q’s of jurisdiction ( Crevier ) otherwise creating a s. 96 court o Usually, the issue is the interpretation of a statutory provision . Judges assign themselves the ask of decision if the issue fell within jurisdiction, and therefore within the ambit of the PC, or whether it was a “jurisdictional question” that determined the outer boundary of the decision maker’s authority, and therefore in the realm of the court o Parkhill Bedding and Furniture v. International Molders . Parkhill purchased assets of a bankrupt company that had been bound by a collective agreement with the union of the bankrupt company . The MB Labor Board determined that Parkhill was under the Labor Act a “new ER to whom passes the ownership of the business” and that he was bound by the collective agreement with the union . Parkhill sought JR . MB CA Decision: The board’s order exceeded it’s jurisdiction  The question of whether Parkhill was a new ER was preliminary or collateral to the main issue that the board had exclusive jurisdiction to address, namely, whether the collective agreement bound Parkhill  Resolving whether he was a new ER was a matter of bankruptcy law, not labor law  Went on to determine that the board wrongly determined him to be a new ER o Metropolitan Life v. International Union of Operating Engineers . Facts: Ont Labour Board certified a union as the sole bargaining agent for a group of EE’s engaged in janitorial and maintenance work. Provision relied on to certify required evidence that at least 55% of the EE’s were members of the union. They found it was and granted certification . The ER sought JR . SCC Decision:  Although the question of whether 55% of the EEs were members was definitely in jurisdiction of the board, the board lost jurisdiction because it used a fault reasoning process to determine that yes, it was  Used the “asking the wrong question technique” o They board failed to deal with the question remitted to it (whether the EE’s in question were members of the union at the relevant date) and instead asked the question “whether in regard to those EES there has been fulfillment of the conditions for membership” o These two techniques are formalistic, malleable, instrumental devices used by courts to meddle o They have been discarded and issues of jurisdiction muted for the most part  Problem: Over/Under Intervention o Courts would either over intervene, especially in labor cases, or under intervene, claiming not a jurisdictional question so not going to address it  Metro life led to big division in the courts o The ON CA had written a very strongly worded judgment only to have the SCC overturn it o Strongly influenced by Anisminic The Blockbuster: CUPE v. New Brunswick Liquor Corporation CUPE v. NB Liquor Corporation (SCC 1979)  Shifted the legal landscape to curial deference in 3 ways 1) Administrative actors no longer “inferior tribunals”, but deserve respect as specialized decision-makers 2) Often there is not a single correct interpretation of legislation (= rationale for deference) 3) Previous lack of principled framework to distinguish reviewable questions from those protected by a privative clause (what is and is not jurisdictional) . Jurisdictional question = standard of correctness (less deference) . Questions within jurisdiction = standard of patent unreasonableness (more deference)  Facts: Employer complained that union was picketing (contrary to a provision) and union complained that employer was filling striking employee’s positions with management personnel (contrary to a provision) o Issue in case was interpretation of the latter provision, specifically whether “with any other employee” includes management personnel  Dickson: o A court should only interfere (by labeling as jurisdictional error), an interpretation of the provision that is “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation”  Important to note that Dickson doesn’t propose an alternative approach, and further it doesn’t get RID of jurisdiction doctrines, it just muted them (because s. 96 always have to be able to get in via jurisdiction – Crevier came after CUPE)

The Sequels  Bibeault (1988 SCC) o Not totally following CUPE o Beetz: . Cites CUPE but doesn’t use the word “deference” . The Central question for him was: Did the legislator intend the question to be within the jurisdiction conferred on the tribunal? . Framing question in this way retains the rule of law commitment to parliamentary supremacy

A. Judicial Review is Constitutionally protected o Legislation cannot completely insulate from courts with a privative clause (Crevier 1981 SCC) + Royal Oak, Pasienchyk o “The role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection” (Bibeault)

B. Beyond Privative Clauses  CUPE’s “Should the court defer” expands beyond tribunals that have privative clauses to where statutes have finality clauses, preserve the option of JR or provide appeal to the courts  Jurisdictional question is replaced by expertise as key determinant of standard of review (Pezim 1994 - Iacobucci)  A 3rd standard of review is created: reasonableness simpliciter (by Iaccobucci in Southam) o “An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.” o Retrospectively, it is the standard that was used in Pezim

Pezim (1994 SCC Iacobucci)  BC Securities Commission had jurisdiction over parties and subject matter (given curial deference)  The statute gave a right of appeal to the courts  BUT Iacobucci wanted to show deference (he was securities lawyer, knew the nature)  “Even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shows to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise”  Features that pointed to greater deference to specialized BCSC: o Subject area is elaborate/complex o Commission is granted public interest mandate, plus broad discretion to determine what is in the public interest o Commission has broad powers to administer the statute, including authority to conduct investigations, audits, and hearings to issue orders o Statutory definitions (including material change) are only meaningful within factual regulatory context o Agency played a policy development role in addition to adjudicative functions o Interpretation of the statutory provision in question “goes to the heart of the regulatory expertise and mandate of the Commission”

Southam (1997 SCC Iacobucci)  Competition Tribunal found that Southam’s acquisition of newspapers within a given advertising market lessened competition  SCC: o Emphasizes complexity of statutory scheme, and Tribunal is expert

Between Southam and Pezim, the standard of “reasonableness simpliciter” arose.

National Corn Growers L’H-D: labour relations, telecommunications, financial markets, and international economic relations are places courts are not as expert as tribunals to deal with issues Parliament has chosen to regulate through admin bodies

The Story so far: Pushpanathan v. Canada  Framework for determining appropriate standard of review established in Pushpanathan (SCC 1985, Bastarache) o 4 Factors relevant to determining standard of review (But first 2 are really the thrust of the exercise): 1) Legislative indication of what judicial supervision should look like . Privative Clauses: Presence tends to favor deference, finality clause less so . BUT effect of PC can be outweighed by expertise 2) E xpertise = Most important! a) characterize expertise of tribunal b) Court considers own expertise relative to tribunal c) Identify nature of issue relative to expertise  Ex: Because of tribunal expertise in Southam and Corn Growers, applied PU = deferential  Deference Spectrum: o Lower end = human rights – HR tribunals impose decisions on parties that have direct influence on society at large in relation to basic social values o Questionnable = decision-making bodies staffed with elected officials (Chamberlain = reasonableness) o High = Labour arbitrators, Professional bodies (Law Society in Ryan) o Quite High = Labour boards o Higher end = economic, financial, technical, securities commissions, int’l trade tribunals, telecommunications  Expertise analysis is limited to statutory role of administrative actor, not the merits of the actual person occupying the position 3) Purpose of the Statute as a Whole, and the Provision in Particular . If statute is polycentric = more deference  Polycentric = engages a balancing of multiples interests, constituencies, and factors . If statute is more bipolar = less deference . Justification = judges have more expertise in bipolar issues 4) Nature of the problem (question of law, fact, or mixed law and fact) . Question of law = less deference  Precedential value (the more, the more legal) o “pure” law (Barrie Utilities) o concept derived from common law/civil code (Bibeault) o general question of law (Mossop) o not scientific or technical (Mattel) o HR issue (Pushpanathan, Chamberlain) . Question of mixed law/fact = neutral . Question of fact = more deference . Charter question = NO deference, standard of correctness

 Pushpanathan o Pushpanathan made refugee claim in Canada o Before claim heard, convicted of trafficking narcotics = excluded from refugee protection o Issue: whether “acts contrary to the purposes and principles of the United Nations” included a criminal conviction for trafficking

 Chamberlain (SCC 2004) o Local school board passed resolution NOT to authorize books showing same-sex families to be used in the classroom o Court: reasonableness standard of review  Ryan o Sanction for misconduct on lawyer o HUGE deference to expertise of Law Society o Court: reasonableness SOR

Coming Attractions A. Disaggregation o Don’t isolate issues and subject each of them to a different SOR (Retired Judges) vs. o Isolate each issue (Mattel, dissent in Canadians with Disabilities) o Up for the court to make a decision and take a principled approach B. Is 3 Standards Too Many? o Lebel summarized all the criticism of having 3 standards in Toronto (City) . Called for 2 standards: correctness and reasonableness o Court blended PU and R into “demonstrably unreasonable” in Canadians with Disabilities C. Converging Tests?  Overlap b/w Pragmatic and Functional Test and Procedural Fairness 5 Factors  Both list nature of decision, statutory scheme, and expertise as relevant D. The Last Word on Legislative Intent o 2004 BC Administrative Tribunals Act: . If enabling statute has privative clause: PU SOR . No privative clause:  Questions of fact: unreasonableness  Questions of law: correctness  Exercise of discretion: PU  Procedural fairness: “having regard to whether, in all of the circumstances, the tribunal acted fairly” Dunsmuir v. New Brunswick (2008, SCC)  Court unanimously reverted to 2 standards of review: o Correctness o Reasonableness  Pragmatic and Functional Test is now the “Standard of Review Analysis” o Emphasizes 3 bases for deference: . 1) privative clause . 2) discrete and specialized regime . 3) question of law not of central importance to legal system/not beyond specialized expertise of tribunal o Non-exhaustive list of situations where reasonableness or correctness will be applied . Correctness:  Where “true” jurisdiction/constitutionality is at stake  Legal issue is of central importance to legal system AND is outside adjudicator’s specialized area of expertise o Criteria for determining what is/is not reasonable: . Intelligibility . Justification . Transparency of reasoning . Outcome falling within range of possible, acceptable outcomes which are defensible in fact and law

Chapter 9: A Fine Romance? The Modern Standards of Review in Theory and Practice

I. Intro  Cynical vs. Romantic Accounts of SOR o Romantic sees reconciliation between judges and admin decision makers, bringing different strengths to common project  Standards are 3 distinct categories, (graduated degrees of deference) NOT on a spectrum (Ryan) but many would prefer to see a spectrum of deference  McLachlin in Dr. Q: o Correctness = “exacting review” o Reasonableness = “significant searching and testing” o PU = decision left “to the near exclusive determination of the decision-maker”  Reasonableness vs. PU = sniff test/puke test – ie. determined by judicial intuition and defy public articulation  failing to meet fundamental criterion of rule of law

II. Background: Statutory Interpretation and Substantive Review  Positivist Approach o Statutory language carries a single, unified meaning over time o Judiciary is best placed to find this meaning o Criticisms: . Sneaks in judge’s values instead of allowing them to be explicitly stated . Against deference = problematic where there’s a privative clause . Questioned by CUPE  Pragmatic/Normative Approach (more consistent with CUPE) o Interpretation can’t be solved by the text alone, but requires value judgments o Value judgments are explicit, for public justification o RoL conception: legitimacy contingent on consistency with public values o Attitude of non-deference? Maybe . Some judges want their values involved so use correctness . Other judges (constitutional pluralists) see admin. peeps as experts on the public values within the sector they are involved  Believe admin agencies can shape rule of law

III. Theory and Practice of Modern Standards of Review (Pre- Dunsmuir ) A. Correctness 1. In Theory o Court may take its own reasoning process to arrive at results it views as “correct” (Ryan) . Don’t have to make an effort to assess Tribunal’s reasons . Don’t have to admit that there are dimensions to Tribunal’s reasons that are beyond capacity of the court o Generally used for: . Determining whether non-adjudicative decisions of municipal decision- makers are ultra vires . Constitutional/Charter issues . Procedural fairness (now in question post-Baker as LHD applied reasonabeness) . Jurisdictional scope of tribunals . Questions of “pure law” 2. In Practice o Bibeault . School board terminated janitor contracts with companies whose workers were on strike, contracted with another company for the same services . Issue: did this fit into “alienation or operation by another” of an “undertaking” . Held (Beetz):  The decision stands contrary to everything Dickson fought for in CUPE  Issue is jurisdictional = no deference = correctness  Statutory interpretation in this case requires legal expertise  He felt that the labor court gave the terms “non-legal and even uncommon meaning” that was inconsistent with the statute o Mossup . SCC overturns HR tribunal decision on basis that “family status” could NOT be interpreted to protect same-sex couples . Majority: Correctness standard . Concurring majority decisions represent 2 variants of positivist approach to statutory interpretation (normal for judges to agree to apply correctness standard but not to agree on what the outcome should be when applying it)  Lamer = Focus on Legislative Intent o Absence of sexual orientation from statute’s prohibited grounds of discrimination o It had been recommended by HR commission, but Parliament had failed to act on recommendation o Parliamentary intent is clear, so can only apply the law  LaForest = Focus on Legislative Intent o More concerned about the word “family”, and usual and ordinary sense of the word o Dominant sense of the word in Canada is the “traditional” family . Dissent (L’H-D) – would have used PU standard  Normative approach to statutory interpretation  Human rights are important, must only be curtailed by the most explicit language  Common-law constitutionalism – statutes must be interpreted in light of underlying norms of society  No reasonableness standard available at this time o Pushpanathan . Normative approach to statutory interpretation . Issue: whether drug trafficking is “contrary to the purposes and principles of the UN” . Majority:  Focus on intention of drafters of the incorporated international convention  But also a value judgment made that privileges HR protection as an excuse/reason to narrowly construe the provision o Trinity Western . Normative approach to statutory interpretation . Majority:  Abstract conceptual analysis o Barrie Utilities . Positivist approach . Majority (Gonthier) painful throwback to looking for plain meaning of “the supporting structure of a transmission line”  Showed no respect to CRTC decision that infused their experience into the definition  Ripped the words out of context to give 1 positivist definition . Dissent (Bastarache) more normative, draws from L’H-D in Domtar (statutory interpretation has ceased to be an “exact science”)  Wants everyone to remember CUPE and curial deference

B. Patent Unreasonableness 1. In Theory o PU is difficult to define, but the result must almost border on the absurd before intervention is warranted (Major in Voice Construction) o Situations where PU standard arises will be RARE (Voice Construction) . If a question of fact: only PU if there is “no evidence” o 2 Basic principles: . 1) Judge must not measure decision against his sense of the “correct” decision . 2) No significant searching or testing to detect fatal defect (Southam) – prohibition on undue probing

2. In Practice o CUPE . No single interpretation is right . Left lots of questions unsanswered o Paccar (now passé, overruled by Ryan)) . Any adjudication on the reasonableness of decision must involve the evaluation of the merits – ie. court has to determine what the “right answer” is before determining if the answer reached by the tribunal was correct, reasonable, or PU o Ryan . A court should not at any point ask itself what the correct decision would have been o National Corn Growers . Applied PU SOR . Majority (Gonthier)  Gonthier’s approach to PU for questions of fact (widely accepted in case law): o 1) In a review of questions of fact, an examination of the record to determine whether the standard of “no evidence” is met o 2) If its complex, judge may need to do a lot of reading/thinking before coming to decision (from Southam)  He wants a probing look into the decision – says that you cant make a decision on standard of review unless you closely examine it and decide on PU o BUT of course, the harder you look the more you find . Wilson, concurring, agrees it should be a PU standard, thinks Gonthier’s ideas undermine everything CUPE stands for . However, a bit of Wilson is accepted in distinguishing PU from reasonableness, should be on the basis of “immediacy or obviousness” of the defect o Retired Judges (2003, SCC) . Whether its okay for Minister to only allow retired judges to be appointed in arbitration . Majority (Binnie)  Before determining which standard to apply, he canvasses the history of the legislation  claims the policy and objects of the Act must be determined, construe act as a whole o Janisch says – this brings us back to Metro Life and Anisminic  Then finds the decision of minister was PU  Legislative scheme is dependent on securing the trust and confidence of the parties  Minister failed to take into account factors that Binnie deems essential to meet that goal (impartiality, independence, expertise, and general acceptability in labor relations community)  PU does NOT allow re-weighing of factors, but the court is allowed to note important factors that have been excluded from consideration . Dissent (Bastarache)  Disagrees that flaw in Minister’s decision-making is either immediate or obvious – thinks it took the majority “significant searching” to find the factors deemed to be mandatory  flow from idea that substantive review threatens to illegitimately impose judicial values on admin bodies **** But must still keep in mind the countervailing need for judicial vigilance Attempt at mediation? Judges  identify legal limits of decision, determine factors relevant to decision Admin decision makers  have exclusive capacity to weigh or balance those factors

C. Reasonableness 1. In Theory o Established by Iacobucci in Southam as a middle ground . “An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination” o Focuses on quality and rationality of reasons given for a decision o No concern of limiting probing o The courts are NOT there to look at the weight the decision maker gave to considerations  it is NOT a reconsideration of the decision o There will often be no right answer to the questions (unlike correctness) (Ryan) o Confidence in reason: . Judges are capable of appreciating reasons of admin decision-makers . Admin. decision-makers are able to communicate the reasonableness of their decisions to judges o Dyzenhaus: . Reasonableness SOR expresses a pluralist model of constitutional order in which legislature, judiciary, executive, and people affected by decisions are interactive participants 2. In Practice o Southam . Question of mixed fact and law = requires judicial oversight on application of facts to law . “This decision epitomizes the idea of reasonableness review as a form of oversight that refrains from revisiting the weight placed by the decision-maker upon discrete points of evidence or argument.” o Dr. Q (McLachlin) . For Reasonableness SOR, judge’s role is NOT to give alternative interpretations of evidence, but to determine if the Committee’s interpretation is unreasonable o So these 2 decisions reflect reluctance to interfere w/ a tribunal’s assessment of evidence on a reasonable standard, says NOT to interfere with the weight assigned under a balancing process… BUT!! o Baker (L’H-D) (1999) . Officer’s reasons (aka shitty notes) failed to reflect that the decision-maker was sensitive to interests of the children = decision did NOT meet reasonableness standard . She wrote that he failed to give adequate WEIGHT to the consideration o Suresh (2002) . Attempts to respond to the uncertainty left after Baker . “Baker doesn’t authorize courts to engage in a new weighing process” . Courts reviewing decisions on discretionary end of spectrum cannot reweigh evidence o Starson v. Swayze (2003) . Majority: board was not sensitive enough to evidence given by Starson = NOT reasonable . Minority: majority shouldn’t have reweighed factors . Majority (liberty) vs. Minority (welfare)

IV. Critiques of the 3-Standard Model  LeBel in Toronto (City) o The case law is confusing and unpredictable o Correctness standard should only be used for ACTUAL questions of law o PU and Reasonableness are so closely connected – how to distinguish? . Is the search for PU a search for legal error, or an inquiry into whether there is a “rational basis” for the decision? . Do you find the correct outcome before adjudging PU? o Bastarache disagrees . Keep the status quo, let it develop through common law  Decision in Canadians with Disabilities o Echoes LeBel’s sentiments o VIA Rail and the “undue obstacle” on its new fleet of cars  Flood and Sossin o Suggest a shift away from fixed, 4-factor analysis to a more general requirement that courts justify when they are intervening o Would take the emphasis aware from more vs. less deference and shift it to a more transparents and principled basis for review  David Dyzenhaus o Echoes sentiments

Wilson in Corn Growers – it is the way a tribunal understands the question its enabling legislation asks it to answer and the factors it is to consider, rather than the specific answer a tribunal arrives at, that should be the focus of a reviewing court’s inquiry.

Chapter 10: Keeping a Check on Discretion

I. Intro  Definition of Administrative Discretion: o The power of an administrative authority to make a choice between various options o “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” o Occurs in the space between will of Parliament and acts of the executive  No right uses of discretion, but some may be wrong in law (Roncarelli)  Issue: What are the legal constraints on discretion? o Traditional dichotomy: . “quasi-judicial” decisions are based on law (legally constrained an controllable) vs. . “administrative/discretionary” decisions based on policy (not legally controlled) o This dichotomy is no longer so cut and dry, more of a spectrum

II. The Role of Discretion & Academics A. Role of Discretion 1) To Decide Individual Cases o Government cannot foresee every individual case that will arise o Gives decision-maker ability to decide case on its facts and compatible with regulatory scheme o Ex: Baker (Minister had discretion to exempt from strict provisions on compassionate and humanitarian grounds) o Ex: Roncarelli (Liquor Commission had discretion to cancel any liquor permit - no formal limit on discretion in provision) 2) Discretion to Adopt General Norms (aka Regulations) o Discretion to adopt Regulations justified in 2 ways: . 1) Need for expertise (which admin agency will usually have over Parliament) . 2) Time efficiency/flexibility (legislators need to get laws through, admin. agencies figure out the details) o Also have discretion to adopt soft law (guidelines, directives, etc.) o “Structuring Discretion” – setting standards for how discretion is exercised to avoid being arbitrary

B. Academics Roughly divided between 2 schools of thought: o 1) Rule of Law doesn’t allow for discretion . Dicey  Discretion is arbitrary power = antithesis of RofL  Discretion problematic for 2 reason: o 1) statutes delegating discretion are framed to keep out courts o 2) substantively extra-legal (“public business”), which courts are unsuited to decide  Discretion only acceptable in emergencies (war, etc.)  Discretion = a “lawless void” . Lord Hewart  “The Road to Serfdom” – powerful look, concerned with giving broad grants of discretion – claimed it was political issue, beyond reach of law  Discretion puts executive actions beyond the reach of ordinary law . F.A. Von Hayek  Discretion prevents citizens from knowing how the state will use its coercive powers = contrary to RoL o 2) Discretion as an instrument of welfare . W.A. Robson  He and Jennings both start with acceptance – if going to have admin bodies, need discretion to implement mandates  Discretion is NOT intrinsically arbitrary  BUT! Tribunals must remain under appropriate legal control (agrees with Dicey)  Favoured creation of specialized administrative court to avoid abuse of discretion . Jennings  Supported administrative court (could be specialized division of High Court) . J. Willis  Functional approach  Father of admin law – favors function, and skeptical of ordinary court’s ability  Dicey’s view dominated until Baker, and even post-Baker it still resonates

III. Discretion from Roncarelli (1959) until Baker (1999) Roncarelli v. Duplessis (1959 SCC)  Frank Roncarelli, a Jehovah’s Witness owned high-class restaurant in Montreal  Had bailed out JW friends over 400 times for illegal pamphletting  Sued Premier of Quebec (Duplessis) for damage caused by cancellation of his liquor license  License had been formally cancelled by Quebec Liquor Commission, but Commission had acted on Duplessis’ orders  Motivation behind revocation was to punish Roncarelli for his “seditious” activities helping the JWs  Rand o “There is no such thing as absolute and untrammeled discretion” even if formal language of provision indicates otherwise o For discretion to be legally exercised, it has to pursue legitimate purposes and take into account the situation of the individual affected by the decision o Despite provision allowing Commission to “cancel any permit at its discretion” there are legal limits to this discretion o The Commission was a public service that had to serve the purpose of the statute, owed a public statutory duty to Roncarelli o Unwritten principles are a part of legal regime of discretion and inform interpretation of statutes . Dominant view in admin law post-Roncarelli  Cartwright (Dissenting) o The Commission had unfettered discretion because language of the statute gave no guidance as to how to exercise discretion, so Commission had done nothing wrong in cancelling license o As long as Commission acts within limits of delegated power, could not be subject of control by courts

 Post-Roncarelli, Rand’s view that unwritten principles inform statutory delegations of discretion becomes dominant throughout admin law b/c: o 1) Reconcilable with positivism (only valid positive rules bind judges) o 2) Compatible with ultra vires rule that governed law of judicial review of government decisions (ie. decisions made in excess of jurisdiction delegated by statute would be struck down b/c of supervisory role of court)

 This led to several Grounds of Review under the title, Abuse of Discretion: A. Unauthorized Object or Purpose/Improper Considerations . Most frequently claimed: must exercise discretion in conformity with the purposes authorized by the delegating statute, and not exercise in light of improper considerations . Ex: R v. Smith (can’t refuse union certification b/c leader is a communist) . Ex: Shell Products (City of Vancouver not allowed to boycott shell b/c its in South Africa under Apartheid) B. Bad Faith . Roncarelli (Duplessis cancelled liquor licence in bad faith) . Landreville (city expropriated to prevent resident from operating quarry) C. Acting Under Dictation or Influence . Roncarelli (liquor licence officer acted under influence of Minister) D. Wrongful Delegation of Powers . Vic Restaurant (City of Montreal can’t delegate permit power to police) E. Fettering of Discretion . Can’t decide in advance of hearing facts, can’t let guidelines/directives guide decision without considering all the facts F. Unreasonableness . Rarely invoked as a separate ground of review . Wednesbury – “something so absurd that no sensible person would ever dream that it lay within the power of the authority . House of Lords – “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”  Overall: Hands off approach o But different policy reasons than hands off with respect to standard of review of substantive decisions (ie. deference as respect) o With respect to discretion, it was judicial “abstinence” – discretion exercised for policy and political reasons – don’t want judges to get on the slippery slope of politics  Post-Roncarelli courts oscillate b/w law vs. discretion o Ex: Thorne’s Hardware - decisions of a governor-in-council are final and not reviewable in legal proceedings o Justification for restraint based on judicial ‘abstinence’ – keeping judiciary away from decisions that are outside the realm of law  Nicholson (1979) o Hard to distinguish b/w legal vs. discretionary decisions, need to focus on the main issue – consequences of decision for person concerned o Cant have different reasons for involvement vs. non-involvement for control of law and discretion

IV. Baker and its Aftermath A. Baker - Baker (1999 SCC) - L’H-D for the court: - 2 ideas central to traditional approach to discretion: 1) Decision-maker must be given margin of maneuver 2) Decision-maker must act within certain limits  There should be no strict distinction b/w discretionary and non-discretionary decisions  Seems to reflect a move from positivism to “no one right answer” to SI  RAND is TRIUMPHANT – we are not just talking about boundaries, we are importing legal principles while we look at the exercise of discretion inside the boundary  NOW: Review of discretion should follow pragmatic and functional approach o Doesn’t mean that there will be more intervention, because would take into account that discretion inherently needs leeway  SO she applied Pushpanathan to determine S o R – instead of one of the old discretionary “Grounds of Review”!  “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.”

B. Baker ’s Promise  The case marks the end of law/discretion dichotomy in substantive judicial review  Court moved away from Dicey’s concept of discretion  Court moved towards Robson/Jennings/Willis concept of discretion  Softened dichotomy b/w procedure and substance – ie. recognized that procedure may affect the substance of the decision by requiring that reasons be given when an individual’s interests are affected  Starts analysis of legality of executive action by considering consequences on individual (in line with Nicholson in this regard)  Discretion = a space controlled by law

C. Baker ’s Aftermath  Grounds of review (see above) of discretion must now be approached according to the SOR decided on by the pragmatic and functional approach (David Mullan)

The court backs away from Baker… Suresh (2002 SCC)  In Baker, court suggested that on a reasonableness SOR, it can evaluate the weight given to certain considerations  Court in Suresh says this is wrong: reviewing courts must limit themselves to ensuring that only relevant considerations have been taken into account – weighing is for the decision-maker alone  Shows that applying the pragmatic and functional test to discretion may not result in any difference from the traditional approach  Clearly, the central determination of Baker was weight given to factors, but courts is clearly opposed to this o Can you apply a reasonableness test to a substantive decision when the discretion itself was grants to an admin body? Is that not reweighing?  Now, if no weight was given to a factor or exclusive weight was placed on a factor outside the “boundary”, clear grounds for review  The weight question seems likely to be what “reasonable” review of discretion will focus on – perhaps just be examining the rationality

Janisch – Suresh is clearly recognizing that discretion is NOT like law  Discretion is where the legislature has consciously granted a policy choice  When the court goes in, its second guessing that  Courts always feel more comfortable looking at q’s of law  But discretion seems to fit halfway between law and fact – court is hesitant to make policy/fact determinations in weighing  So where the court overstepped in Baker, it has withdrawn in Suresh

V. Conclusion  Discretion as Dialogue  discretion from bottom-up  dialogue b/w person affected and public authority making decision  Rand in Roncarelli o Dialogue best explains historic development of admin law o Dialogue justifies evolution of discretion (b/c discretion is compatible with democracy and rule of law via participation and accountability vs. Discretion as Power (Cartwright in Roncarelli)

Chapter 11 The Limits of Administrative Law in the National Security State

Introduction  Cicero – “During war, laws are silent” vs. Barack “It is when the cannons roar that we especially need laws”  No doubt that content of law varies in times of crisis  it “speaks with a different voice”  R v. Heywood – violation of s. 7 may be justified under s. 1 during times of war or national emergency o Though has never been invoked (nor s. 33 notwithstanding) in the magnitude imagined in Heywood  Purpose of this chapter: highlight the limitations of administrative law in serving as an instrument of accountability in this area of state conduct

The Bad Old Days

Liversidge v. Anderson (1942, SCC)  “Reasonable cause to believe” a person of hostile origins or associations o Regulation 18B – gave the home secretary (senior cabinet minister in Britain) the power to detain any persons that met this criteria o Could issue a control order – euphemism for detaining someone indefinitely  In 1941, one of those persons, Liversidge, challenged the home secretary Anderson  Majority of the house of Lords: Parliament had granted the home secretary a subjective, unreviewable discretion to make these sorts of decisions  Famous dissent of Lord Atkin: NO!! The power is conditional, objective, reviewable, subject to security limitations on information o This dissent was subsequently adopted o His willingness to review the broad discretion to detain people in war time (REMEMBER, THIS IS DURING WW2)

National Security in Canadian Law

Three general uses of the phrase “national security” in Canadian law:

1. The creation of special government powers o Statutes invoke national security to authorize government to either pre-empt or respond to national security concerns  The Canadian Security Intelligence Service Act creates the CSIS agency whose job is to retrieve, analyze, and retain information on “threats to the security of Canada”  Other Acts may grant the federal government power to encroach upon what are normally provincial obligations: the Security Offences Act “federalizes” any police investigation or prosecution of crimes that involve a “threat to the security of Canada”

2. The penalizing of national security threats o An easy example are the terrorism offences in the Criminal Code o A more nuanced example is the Immigration and Refugee Protection Act, which combines immediate detention of a person deemed “...a danger to the security of Canada” with a removal proceeding before Immigration Refugee Board.  IRPA also permits the issuing of a security certificate by the executive, which if upheld as reasonable by a Federal Court judge, results in a removal order  What ends up happening is that the IRPA permits consequences in excess of the Criminal Code, but an administrative tribunal is used to execute those consequences. o Citizenship Act – denies citizenship to people the government thinks are a threat to security of Canada

3. Limitations placed upon regular government obligations o Governments can be exempted from normal obligations on national security grounds. o An example is the Access to Information Act, where the general public right to disclosure of information is limited when that information involves national security o S. 38 of the CEA, don’t have to disclose evidence

Special Qualities of National Security Administrative Proceedings

Many of the statutes which invoke national security also contemplate some kind of administrative proceeding to review information. However, the limits of procedural fairness differ greatly in the national security context.  Particularly wrt notice/opportunity to comment, discretion

I. Notice and the Right to be Heard in Theory

 There is a bare minimum level of procedural fairness that must be met in national security contexts that invoke Charter s.7 o See Suresh, where the SCC held that when the Charter s7 right to procedures in accordance with fundamental justice are at stake, a person must:  Be informed of the case to be met AND  Be provided an opportunity to respond to the case presented to the Minister  This includes presentation of evidence countering the view that the affected person is a national security threat

o Then in Charkaoui, the SCC affirmed that meaningful and substantial protection is required in national security cases involving Charter s7, although the protection may not be as complete as in a case where national security constraints do not operate  A great example of incomplete protection is Suresh, where the court found that the government's obligation to inform Suresh of the case against him was legitimately subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents

II. Notice and the Right to be heard in Practice

A. Truncated Notice  Some national security procedures  NO notice given to affected individuals  Prior notice is a luxury you can’t afford in national security  Criminal Code 83.05 offers no notice to an individual or group that can be designated as a terrorist organization by the governor in council so long as there are reasonable grounds to believe certain conditions o The designation can be challenged after designation, but not before designation. o After-the-fact challenges may do no good if an organization is already stigmatized from being labeled a terrorist organization

 The “no-fly” list created per regulations under the Aeronautics Act involves the same mechanism: no advance notice of listing decisions.

B. Truncated Right to be heard  When an individual is given notice, special constrains may still be imposed on their right to be heard. The following regimes set up restricted hearing regimes: o Security certificate and inadmissibility proceedings under the Immigration and Refugee Protection Act o Canada Evidence Act s. 38 o Terrorist group delisting processes in the Criminal Code and United Nations Act o Terrorist-financing charity decertification processes in the Charities Registration (Security Information) Act

 These regimes set up the same kind of system: a Federal Court judge or government official is statutorily empowered to both review and restrict access to information to parties that have standing before the hearing o Sometimes, proceedings are either in camera or ex parte (or both) o Information can also be redacted or displayed in abbreviated form Result? The affected party may not know the case to be met

 The SCC then commented very unfavorably on such systems in Charkaoui: o “The judge sees only what the ministers put before him or her. The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions, or assess the credibility and truthfulness of the information....How can one meet a case one does not know?” o However, the court did not say that truncated hearings are always impermissible. Instead, they came close to advocating the UK “special advocate” model:  A security cleared lawyer is named advocate of the interested party and advocates on their behalf in an in camera hearing o Furthermore, Charkaoui applies only in a Charter s7 context. Cases that do not involve life, liberty, or security, but still involve scrutiny of an organization for national security reasons, might be subject to very onerous restrictions on the right to be heard

III. Discretion

Discretion is heavily used when it comes to determining what kind of conduct invokes a national security concern: only 9 out of 33 statutes which use the term “national security” attempt to define it. This leaves it up to police and government authorities to determine when they can use their increased state power

Mosaic Effect: The mosaic effect doctrine is an example of the wide discretionary definitions of restricted that governments use:  The mosaic effect states that the release of even innocuous information can jeopardize national security if that information can be pieced together with other information by a knowledgeable reader o The mosaic effect has been accepted by the Canadian courts as justification for the protection of information that may not seem justified at first glance o This can lead to some ridiculous results: Can be deployed to stop disclosure of almost ANY piece of information:  O'Neill v. Canada, where RCMP resisted disclosure of their building location despite it having an RCMP sign out front AND the building location had already been disclosed in a previous proceeding. Ont SC ordered release of the information

Court Review of Discretionary National Security Decisions

The lack of definition around the term “national security” is not necessarily fatal: remember that the constitutional standard for vagueness is if “it does not provide an adequate basis for legal debate, does not sufficiently delineate any are of risk, or is not intelligible” (see Canadian Foundation for Children, Youth, and the Law).  The SCC in Suresh said that the term “danger to the security of Canada” was not unconstitutionally vague. Instead, the term requires the government to adduce evidence producing an objectively reasonable suspicion of a serious threat of substantial harm  The breadth is so great, lack of clear definition is so common  how do we draw boundaries?  If we can’t identify the boundaries, we can’t patrol them Courts are instead concerned with just how much deference to give when the term is generally left undefined by statute.

I. Deference as the Starting Point In Suresh, court used the “pragmatic and functional approach” (now replaced by Dunsmuir standard) to hold that in the context of removal of a suspected terrorist under the IRPA, the standard of review should be patent unreasonableness.  Remember that patent unreasonableness has been abolished as a standard, so the likely standard is now reasonableness simpliciter  Nevertheless, in Suresh, the SCC approved of the UK decision in Rehman, where the House of Lords emphasized that in a national security context, the cost of government failure has such serious implications for the community that unelected judges should not interfere with the executive, and executive should rather be ultimately accountable to the people on the issue  Don’t want generalist courts interfering with government officials privy to special info!

II. Application of Deference

In Suresh, even though the court held to the patently unreasonable standard, the court still found that the government's conclusion was based on failure to consider proper factors or was not supported on the evidence before the decision-maker.  This stands for the idea that a court may still apply the standard of review strictly, especially after Dunsmuir and the elimination of patent unreasonableness  Ie. Even though courts want to defer in national security matters, its not like they are leaving the government unencumbered of judicial oversight

However, the Supreme Court has persistently refused to extend its “pragmatic and functional” approach to deference on standard of review to decision-making processes that violate doctrines of common-law procedural fairness. In some procedural fairness contexts, it has extended deference beyond what is anticipated by the language in the empowering statute:  The leading example is Canada Evidence Act s. 38:  The Act contains special rules that limit access to “potentially injurious information” and “sensitive information...in proceedings” including criminal trials. A party must notify the federal AG when they intend to disclose such information, and if the AG denies the request for disclosure, it goes to Federal Court  Under 38.06, a Federal Court judge then authorizes disclosure if public interest outweighs the potential injury.  In this step, courts have held that deference is owed to the Minister, even though the Act specifically asks the court to conduct a balancing test

Other Forms of Review

I. General Bureaucratic Review What is it?  An administrative audit and complaint system to measure agency compliance with legal and other standards and stop problematic behavior

Other review by government bureaucracies may end up touching upon national security concerns, such as:  Audits by the Auditor General  Privacy Commissioners  Public Inquiries –ex. The Arar Inquiry  Canadian Human Rights Tribunal They may in their own ways scrutinize this area as it relates to their area of expertise – financial, probity, secrecy, protection of privacy

Whenever these and other tribunals/inquiries conduct searches into national security matters, courts are likely to show deference to the decision makers.

Specialized Bureaucratic Review

Some bureaucracies have specific review boards whose mandate is to review that specific bureaucracy's decision making, such as the Security Intelligence Review Committee (SIRC) that reviews the actions of CSIS  SIRC is authorized to review “any act or thing done by the Service”, and also prepares special reports when requested by the Minister of Public Safety

Conclusion: 3 specific problems w/ national security in admin law 1. The term is too undefined in statute 2. Government resort to the undefined term is typically reviewed under a HIGHLY deferential S o R 3. The deferential review of an undefined term takes place outside the regular, open adversarial system

Chapter 12:

The Role of International Human Rights Norms in Administrative Law Introduction  Int’l HR norms may influence substantive review in several ways since d-ms must exercise their powers in accordance with the boundaries imposed by statute, RoL, principles of admin law, values of Cdn society and the Charter – from Baker  The IHR may also impact review for PF o May factor in to a challenge of constitutional sufficiency of statutory procedures [as illustrated in Suresh and Baker]  Int’l law is made up of customary and conventional international law o Customary law = practice or conduct of states and is accepted by all and binding internationally o To establish a legal norm as customary, need evidence that states have consistently and generally followed the rule o Felt obliged to do so o Conventional law= treaties, declarations o Makes up most international law o Ex. Uniiersal Declaration of Human Rights, CRC, CAT, etc o These aren’t just agreements  they create rights under which persons can make claims and seek remedies o “These instruments form a vast body of legal norms, a veritable human rights code, that gives meaning to the phrase “human rights and fundamental freedoms” o Treaties have several provisions that may be relevant to admin d-ms by: o Guaranteeing substantive rights (right to freedom from torture, etc); o Substantive oblig’ns on state parties (like the CRC that make the BIC a primary consideration in all actions concerning children); o Requiring state to provide an “effective remedy” for those whose substantive rights are violated; o Expressly guaranteeing institutional and procedural rights at int’l law  International conventions are binding on Canada at international stage  but what about domestically? o Treaty bodies carry out several supervisory functions, but individual petitions are admissible before UN treaty bodies only if all other domestic remedies have been exhausted o Cdn government can enforce treaty rights/obligations by drafting laws to achieve compliance or the courts may give effect to the norms

Rules of Reception of International Law I. Reception of Customary International HR Law o R v. Hape (2007, SCC) o  The reception of CIL into Cdn law is governed by the doctrine of adoption, whereby they are incorporated automatically, as they evolve into domestic law (absent conflicting leg) o powerful statement – its not just that international law MAY aid in the interpretation of Canadian law, the court is saying that customary law IS Canadian law absent legislation to the contrary  CIL is something that all nations agree on, includes things like genocide, torture, slavery, exploitation  Fundamentally agreed on so much that they are by nature incorporated into a state’s law  Kind of like the common law – can be excluded by statute, but unlikely to happen because of degree of agreement

II. Reception of Conventional International HR Law  An int’l treaty is binding on Canada if it is signed and ratified and must be “implemented into domestic law to impose oblig’ns/rights in domestic courts o Canada operates on a dualist system – once treaties are signed, must still be implemented domestically o Need to be careful b/c fed legislation may encroach on provincial heads o Some now try and argue that express statutory implementation should only be necessary when it would alter existing domestic law  If a treaty is not implemented, traditional approach was that it would have much less, or no impact at all on domestic law o But post-Baker it is clear that “unimplemented” treaties may still influence statutory interpretation since 1. Leg is presumed to act in accordance with Canada’s obligations as a member of the int’l community and courts will thus avoid an interpretation contrary to this role 2. Leg is presumed to comply with customary and conventional int’l law (although these are rebuttable in the face of express leg intent to depart from these) International Human Rights Norms and the Substantive Review of Administrative Decision Making I. The Role of Unimplemented Treaties  In Baker court’s assessment was informed by the objectives of the IA, ministerial guidelines and the CRC  The court rejected the argument that the Minister should have given primacy to the BIC b/c the CRC was not implemented by statute and so not part of Cdn law o  Couldn’t structure minister’s decision  BUT  LHD held that the CRC played an important role o IHL may help inform the contextual approach to SI and JR o LHD used it to reinforce her critique of the use of discretion as unreasonable  Dissent  shouldn’t allow unincorporated IHL to do indirectly what it can’t do directly  Critique of Baker – court didn’t go far enough with the CRC, which is ratified, in force, and thus binding on Canada o Should have tried as much as possible to interpret the IA in conformity with the CRC o Instead, has moved “bindingness” down to “persuasiveness”  Most of the civil and political rights in int’l HR law have great resonance in Canada’s legal system (like right to be hears, right to be free from arbitrary arrest and detention)  Int’l social and economic rights also have a potential impact on administrative d-ms o ex. ICESCR  the “right to health”  state parties must create conditions to assure medical attention in the case of sickness o Although the SCC has not recognized a free standing right to health care, they have recognized that state interference in it does engage constitutionally protected life and security of person interests o It seems like domestic politicians are good at giving the illusion of commitment to IHL, but when get right down to it, they fall short of our expectations  Following Baker and notwithstanding Hape, it remains unclear to what extent Cdn courts will apply the c/l’s interpretative presumption of conformity to interpret statutes consistent with int’l oblig’ns not implemented by statute o Can be clarified by express implementation by legislature . Happened after Baker, the IA now requires humanitarian and compassionate applications to be considered in light of BIC II. Implemented International Human Rights Norms and the Substantive Review of Discretion  In interpreting a statute that expressly implements an int’l treaty, courts must rely on the provision of that treaty o in Pushpanathan, since the statutory provision sought to implement the 1951 Convention Relating to the Status of Refugees, the court was bound to “adopt an interpretation consistent with Canada’s oblig’ns under the Covenant” o Court stated that interpretation of international conventions is a q of law o Reviewed on a correctness standard b/c court has more expertise in that than the IRB o Following Baker, Parliament amended IA and enacted provision 3(3)(f) that requires Act be interpreted in a manner that complies with int’l HR instruments which Canada is signatory  This provision as interpreted in De Guzman o Held that this meant binding agreements were determinative of how the Act must be applied, absent contrary leg intention and non-binding agreements may still inform decisions o Thiara v. Canada – 3(3)(f) used to challenge substance of immigration officer’s discretion o Claimed that the decision didn’t reference any treaties and therefore didn’t consider them, making her decision unreasonable o But here the court held that the officer did find it was in the BIC to stay in Canada but this was outweighed by the mother’s conduct. o Express mention of the treaties was found not necessary as it was still sensitive to the issues raised by it

III. Customary International Law and Substantive Review  Spraytech v. Hudson (2001, SCC) o Application of the “precautionary principle” o A government agency felt entitled to take precautionary steps rather than wait for an adverse outcome, based on the argument that the principle has been adopted as CIL and is therefore binding . Implemented a bylaw restricting pesticide use o Court agreed with the bylaw, but did something sad – used the Baker approach to “persuasiveness” instead of calling the precautionary principle binding . Useful to look to it, but its not the be all and end all o Under c/l, CIL/customary norms are BINDING on Canada

IV. Use of International Law in Charter Interpretation  The Charter is a product of Canada’s obligations under legal norms, particularly influenced by the UDHR and ICCPR  It’s open for the courts or ATs to recognize the Charter as leg intended to implement these o It seems logical that in its interpretation and application, there should be no hesitation in using international norms o But there has been setback to this notion – Suresh o Some argue int’l HR laws should be “presumptively protected” by the Charter o Re Public Services Employee Relations Act o The general principles of constitutional interpretation require that international obligations under conventions be a relevant and persuasive factor in Charter interpretation, o This decision echoes the presumptive protection while still holding that they are not binding  In Suresh, the court extended this approach to norms of CIL whereby s7 is to be informed not only by Cdn experience and jurisprudence but also int’l law and jus cogens o The court didn’t use international norms as binding or even determinative o Despite a complete disregard for torture in international law, the Canadian government maintained a right to do so in certain situations o = an EXCEPTION to the CAT  VERY ALARMING!! o Suresh imposes a more onerous duty than Slaight by saying that international norms must be considered, but the “int’l norms as evidence” approach allowed the court to sidestep whether prohibition on torture is a preemptory norm of CIL (ie more than evidence)

 In sum, the court’s jurisprudence on the role of int’l HR norms in Charter interpretation reveals that they have yet to decide if these oblig’ns simply provide evidence of the meaning of the Charter’s guarantees or presumptively define the minimum content of these guarantees

Discretion and Rights of Access to Int’l HR Bodies  Should admin decision makers, in exercising discretion, take into account proceedings pending before an international HR body that may bear on the validity of their decision at international law? o Ahani v. Canada (2002 Ont CA) . Ahani considered danger to Canada, government wanted to deport . No risk of torture established, but was resisting deportation . He exhausted all domestic remedies, and then petitioned the UN HR Committee who made an official request to Canada not to deport him until their could consider his petition . The court rejected this – the ICCPR and its petition procedure were not leg incorporated into Cdn law, neither had any legal effect beyond informing s7 PFJs, and thus he could not enforce Canada’s international obligations at a domestic court o The court felt that signing the Protocol only provided him a right to seek the Committee’s views qualified by Canada’s right to reject those views and enforce its own laws before they were delivered o Dissent felt that by not granting the stay they were making a mockery of the system o The committee itself felt that without reasonable or fair access to the process, it would be nothing more than a hollow sham or cruel charade . And Canada had breached its obligations under it  The principle of effectiveness in int’l law holds that HR instruments should be interpreted to make their safeguards “practical and effective” and that states should not be presumed to intend to take steps that would render treaty rights nugatory o In Ahani, PFJs required that the merits of his communication and magnitude of harm caused by deportation had to be balanced against the gov’t’s interest in deporting him before the Committee released their views on these merits  Cdn courts have followed Baker in that binding int’l HR norms from unimplemented treaties may be considered as persuasive and contextual factors in interpreting and applying statutory provisions  AT decisions can be challenged on the basis that they are inconsistent with these norms but the success of such a challenge will depend on how deeply these norms resonate with fundamental values of the Cdn legal system International HR Norms in Procedural Review  PF norms set out in int’l HR treaties resonate deeply with Cdn legal values as PF is a basic tenant of the Cdn legal system and a PFJ under s7  They are likely to influence the development of procedural safeguards o BUT in Baker held that the CRC did not give rise to a legitimate expectation on Baker’s part that specific procedural rights above what would be normally required should be accorded  Although Baker dismissed the legitimate expectations argument, it left open the possibility that an int’l instrument could, in other circumstances give rise to a legitimate expectation o In Suresh, the court indicated it is possible to seek procedural review of AT decisions on the grounds that the procedures provided did not live up to the legitimate expectations of the applicant on the basis of the terms of a ratified treaty o While he wasn’t given a full hearing, he was entitled to examine the material upon which the Minister made her decision  However, it is unclear whether such an argument will be successful given its dramatically different treatment by the court in these cases  How could we explain the difference? o Baker wasn’t being deported to torture, and her case was based on c/l procedural rights, not a claim under the Charter o In Suresh, enhanced procedure was arguably necessary . What if Suresh is the wrong guy and then gets deported to torture? . The question becomes… were the procedural entitlements he got really linked to the CAT, or was this just all to do with this being a fundamental justice case?

Chapter 13: Regulations and Rule-Making: The Dilemma of Delegation

 Regulations (and rules) are legally-binding requirements and the power to make them must be granted by statute  “Soft law” is not legally binding and the power does not have to be granted in a statute, but it plays an important role in how d-m make decision, both procedurally and substantively  Non-Delegation o Old days  non-delegation doctrine – a delegate couldn’t sub delegate  Currently, widely accepted o Consider Baker – in the legislation, it was the Minister who had the power to exercise discretion  yet in practice, it was an immigration officer o The officer’s ability to make the decision was never at issue – we accept a high degree of delegation  Big Exception – when able to argue it was obvious parliament granted discretion exclusively to the minister and that is the ONLY person who should use it  Ability to use it to “structure discretion” o Structuring allows people affected to know how the agency will deal with certain issues so they can build their case o Protect legitimate expectations (ie. someone who reads guidelines and makes submissions in accordance with those guidelines may argue the decision maker failed afford them proper procedure if the tribunal turns around and makes the decision with total disregard for the guidelines)  Structuring vs. Fettering o There is “fear” of fettering o The courts have recently allowed higher degrees of structuring provided that the court is persuaded the d-m is going to recognize exceptional situations . Can’t have rigid and inflexible policies

Why Delegate? Primary reason for delegation is expertise  It is central to the need to delegate  It is impossible for legislators to have sufficient expertise to understand and evaluate all requirements in all areas of the welfare state o Ex. When making requirements for immigration hearings, probably best to leave it to someone who has taken part/conducted them before  Even if they do have the expertise, they lack the time and information to make all the decisions necessary  Legislators also never have complete info about the future and the flexibility to change requirements as new info arises is achieved through delegation  Soft law has some advantages over rules  Both provide a greater measure of certainty to those who come before regulatory d-ms, but soft law is much more easily adaptable to changing circumstances (fewer and less costly steps to change)  This may be why legislators set out broad policy discretion and allow others to fill in the gaps left in the legislation Risks of Delegation  Frolic of Own o Delegation raises the risk that those who are making the rules or soft law are not following the wishes/expectations of those who delegated the power o 2 concerns: the principle-agent problem where the party making the rules may not be following the wishes of the legislature OR legislature or party making the rules may not be respecting the wishes of the ultimate principle, the public o Fill their own mandates and interests instead  Capture o Thick vs. thin interests in areas affected by regulation o We all have a “thin” interest in how much we pay for utilities o But companies seeking rate increases have THICK concentrated interest o People who have “thick” interests will want development of policy favorable to them  Principle/Agent Relationships have inherent risks  Agent has special expertise/more time/more info the principal does not have so principal cannot perform as effectively (or at all) as the agent  Principal’s lack of expertise/time/info may mean they have difficulty ensuring the agent is actually acting in the principal’s best interests  Risks when legislators delegate the power to make rules or soft law:  The agent follows its own views and values rather than the principal’s  The agent may be attempting to further the public interest but is doing so in the way it (as opposed to the legislature) believes is best  The agent may be seeking to further its own interest  They may be offered inducements that influence their decisions  The legislators may delegate to further their own interests  Such as broad delegation used as blame avoidance or credit attraction

Controlling the Risks Four Main approaches to controlling delegated legislation: I. Structural Approaches (ie. structuring the discretion)  Legislature will be more likely to delegate broad powers to make rules the more it trusts their agent to follow the legislature’s policy preferences  This trust will vary by factors such as level of control over the agents  This also raises the problem of trust b/w the public and elected officials o Ie. if Cabinet can control both scope of discretion AND the exercise of that discretion, then that party can steer public policy at the expense of other members of the legislature  Legislatures may also use the choice of body or resources allocated to the body to control them (ie different rules may apply depending on who is delegated power) o Logging example – environment ministry vs. forestry industry

II. Legislative Review  Legislatures may directly control the discretion by reviewing the resulting rules or soft law o Although there is generally no leg oversight of soft law  And this would only partly solve the problem - committees will still have less time than the agent or ministry  This system may also cause regulations to go back and forth b/w legislators and the rule-making authority which can cause a delay in implementation  It also does not solve problems concerning expertise and info since legislators are unlikely to have enough of either for an adequate review  This system does not address the P-A problem b/w the public and the leg/exec

III. Substantive JR  The courts are an obvious candidate for control of rules and soft law as they are (in theory) an independent 3rd party  Keep agent in its bounds, control the agent when it makes mistakes  But, in Thorne Hardware, the court took a strong position against examining the actions of Cabinet in making orders in council o Claimed that it would take an egregious case to warrant striking it down o Governments don’t publicize reasons for their actions, have many motivations, Cabinet quite obviously believed it had reasonable grounds for its actions, courts can’t inquire into validity of those beliefs  Courts will review the substance of the rules (including regulations) for whether (as in Enbridge) the regulation is within the grant of power o As well as other reasons, such as if it violates the Charter  However, they have been reluctant to do so in many cases since discretion granted in broad terms is difficult to review  They are even more reluctant to review soft law (except when it comes to “fettering”)  3 reasons why we may not want JR of soft law 1. JR tends to be random at best and biased at worst. It is also expensive and time consuming and depends in part on such factors as how many parties benefit or bear costs and resources of those parties 2. The courts often lack the expertise needed for review. As with leg review, the check on the P-A concern comes at the cost of expertise 3. JR raises a further P-A concern as judges may seek to implement their own views of appropriate policy  In order to increase the likelihood that rules will align with their preferences, legislators may favor more interpretation by the d-m itself, or seek to expand JR o Either by privative clauses or right to appeal

IV. Process Requirements  There is a wide range of processes a body follows to make rules o Making a decision with zero external info and no consultation vs. holding a full hearing, taking submissions and engaging in consultations  Public participation may result in better decisions because: 1. Those making the rules will be presumed to have all relevant info 2. Deliberation is promoted (exchange of ideas  better, more considered decision) 3. The process is more transparent and open to scrutiny 4. It may reduce the ability of interest groups to pressure d-ms  Risks to public participation: o Costly and time-consuming (can result in delay in implementation) o They provide another avenue through which interest groups can pressure those making the rules o The public may make mistakes (they may be misinformed or lack time/money to become informed or ignore significant risks or put undue emphasis on others  The risk of mistake has led to different proposals for structuring decision-making, including isolating the decision-makers but others argue this is undemocratic and the problems can be reduced through an appropriately deliberative process Canada’s Approach There is no c/l requirement to PF when a decision is of a “legislative and general” nature and since rules are typically general, they tend to fall under this exception  “Legislative” does not necessarily mean by the legislature. o Inuit Tapirisat (1980, SCC) . JR sought by Inuit b/c they were not allowed to review or respond to a CRTC submission . SCC found that there was no oblig’n on Cabinet to provide PF such as a notice, hearing or reasons . For a decision to be “legislative” in nature, the d-m doesn’t have to be the legislature – here, it was the CRTC implementing a rate increase  Homex Realty v. Wyoming (1980, SCC) o BUT, decisions must be legislative and general in character o The court held that the bylaw in question was not general in nature, but aimed at resolving a dispute with one party, so the municipality did have a duty of PF  The courts generally do not impose c/l procedural requirements on the making of rules, but there are a range of statutory provisions and policies that set out the required procedures (although they tend to be piecemeal) o Ex. At federal level, there is the Statutory Instruments Act for publication of draft regulations  There are specific procedures in particular substantive areas of law o Court challenge to policy guidelines of OCS  Ontario government starting a committee to reform its rule making process

 The gov’t can be taken to court for failure to fulfill statutory procedural requirements o In Enbridge, Enbridge and Union Gas claimed Ont Energy Board dint comply with notice and comment requirements set out in the Ontario Energy Board Act o But the argument was rejected o Court found that if the legislature wanted the OEB to have to give reasons, it would have imposed such a requirement o This seems to limit the usefulness of these provisions to reduce P-A risks (ie mistakes)

 Much of the public participation in Canada consists of notice of the proposed rules and the opportunity for the public to comment o Ensures the public has some info and the regulators potentially receive feedback from the public. The cost of this process is relatively low  However, there are drawbacks:  Delay in public response  Unclear who can participate in this process (certain groups may be able to make more detailed and effective comments if they have the resources and incentive to do so)  There is no deliberation (ie no exchange of ideas b/w those making the comments)

 The process of making rules can help control the actions of the agent, attempt to reduce mistakes, provide some transparency and help ensure rules have a particular substantive content by altering procedures to favor certain parties  However, there is no necessary connection b/w these processes and results (esp bc results are difficult to gauge in these cases)  Accountability can be a weak constraint where time, expertise and information costs hinder monitoring

Chapter 14:

Accountability and the Law of Public Inquiries

Accountability and the Public Inquiry  The Arar case – Arar deported to Syria where he was kept in a small cell, tortured, etc until finally being released back to his family and life in Canada o They demand accountability  Accountability can refer to the idea whereby persons whose actions have harmed others are identified as responsible and made to “pay for” the harm they caused. This is achieved through 2 principal mechanisms 1. Assessing of liability for breach of legal obligations 2. Imposing enforceable orders on those found liable  The model of legal accountability is directed at wrongdoing defined in advance by established norms of behavior o It is cased on a retrospective inquiry into past events o Adversarial in nature as it assumes a contest b/w 2 or more parties seeking to prove different versions of the facts  This model was not suited for the Arar affair o There was no one to sue and no one to prosecute o He sought a different kind of accountability (ie “getting the story out”) i. Who did what, when, why  An important mechanism for achieving accountability = public inquiries  PI’s differ from trials in that it does not determine civil liability/criminal culpability, follow the normal evidentiary/procedural rules and it does not have legal consequences attached to the findings o They are just findings of fact, statements of opinion  Both admin law and PI’s serve to making gov’t operations transparent and responsible to the public  BUT, JR has shortcomings that PIs may compensate for, including the fact that JR remedies are rarely systemic, it is silent on policy level and is confined to a review of process and does not comment on leg purposes  PIs also provide a different context for admin principles to operate o Inquiries are delegated executive power, subject to the rules of admin law

I. Types of Public Inquiries  Royal Commission o Historically, inquiries were appointed by the exec based on their royal prerogative powers, but now most inquiries are granted by fed and prov statutes  Judicial Inquiry o Usually judges are appointed to be “commissioners” (although there is no formal requirement for this  Public Inquiries o The “public” in PIs refers to the fact that inquiries are usually directed at actions of public authorities and they are usually carried out in public view  These terms are often used interchangeably  PI’s are meant to have implications on past or future government regulation o Should meet a public interest test before appointment  Two familiar kinds of PI’s: policy-oriented/policy inquiry and investigative inquiry o Policy inquiries are directed at the study of broad issues/social concerns w/ the purpose of leading to changes in law and policy o Investigative inquiries are directed at uncovering and reporting on facts of event(s) where a person was harmed of there was alleged public misconduct (ie public scandal) o Purely investigative inquiries are rare as they are usually combined with policy o And the policy and investigative functions of combined inquiries = Phase One and Two Processes

II. The Policy/Phase Two Inquiry  This part raises few legal issues, is prospective, broad-based and open to political/policy input  Policy inquiries meant to  new approaches to complex social policy issues  They may also serve to bridge the gap that is created by the lack of fair process protections when it comes to leg decisions  by getting public input  They generally operate like formalized consultation processes and have a number of creative methods of obtaining public input including surveys, online consults, public meetings, etc.  Success is measured by whether the commissioner’s recommendations are adopted in whole or in part by the gov’t o Will depend on timing, context and inclinations of the gov’t of the day  PIs can have a significant impact on public discourse even w/o implementation of the recommendations o May lead to mobilization or creation of public interest groups  Policy may flow from the facts as found in phase 1 o The 2chapter suggests that to improve the system, may consider reassigning responsibility for Phase 2 i. While judges are good at investigating, may not be equipped for making broad generalist recommendations

III. The Investigative/Phase One Inquiry  Fact finding mission  uncover truth of events that have already happened  Also focused on bringing transparency to the investigation itself and presenting the evidence in public  The power of the inquiry as instrument for accountability must be balanced with what is at stake for individuals whose actions/decisions are involved (ie victims) o They have much to gain in holding those responsible and preventing the harm from happening again, but they also have much to lose in re-living their experiences  Must also be balanced with the interests of those whose decisions and actions are the subject of the investigation o This can lead to lengthy litigation and delays from applications for JR  In Krever Commission and Phillips, the court sent the message that the public interest value of investigative inquiries outweighs concerns about their potential harm to the individual interests of witnesses and subjects of investigation A. Balancing Rights of Individuals Facing Criminal Charges a. PIs are not permitted to make findings of civil or criminal liability against individuals, as it would effectively turn the inquiry into a substitute police investigation, outside of provincial jurisdiction [Starr] b. Gov’t may use inquiries which have the power to compel witnesses to testify as a means to get around the right against self-incrimination c. This raises concerns about s. 7 and the notion of derivative use immunity c.i. Ie. if evidence that couldn’t be obtained by another means is obtained by compulsory measures, it cant be used in subsequent trials c.ii. In Phillips, raised the concern that being forced to testify at a public inquiry would lead to an unfair criminal prosecution for the same acts d. The majority lifted the stay on the inquiry, but didn’t rule on compellability e. The concurring judgment in Philips held that witnesses should be compellable at a PI, since the derivative use immunity in s7 and 13 of the Charter provide sufficient protection against the use of the inquiry information in trial e.i. They felt that the important role of PIs justifies making all witnesses will be compellable so long as their right to fair process can otherwise be preserved e.ii. This is the clearest position in Canadian law B. Balancing Reputational Interests of the Individual a. Damage to a person’s reputation may result merely from having one’s name mentioned or being called to testify before a PI. To address this, the court in Krever Commission held that the potential harm to reputation justifies procedural protections at c/l including adequate notice b. However, the court also held that when these protections are provided, “damaged reputations may be the price which must be paid to ensure that if a tragedy such as the one presented to the Commission in this case can be prevented, it will be” c. Blencoe held that reputation does not constitute a “security of person” or “liberty interest” for the purposes of s7, meaning it is likely state interference with reputation will not meet the procedural standard of fundamental justice d. S. 13 Federal Inquiries Act – protection is given where there will be a reputational impact – won’t stop inquiry, but give opportunity to respond e. Focus on misconduct NOT liability as much as possible Public Inquiries and Administrative Law Principles Remember, they are delegated executive power – so operate in realm of admin law.

I. Establishing an Inquiry a. Delegation of Authority  RCs and PIs are appointed pursuant to statutory provisions and most jurisdictions make provisions for inquiries to be conducted in specific areas of activity  Statutes may also authorize Ministers to appoint someone to investigate and report on an issue and grant them powers of a commissioner under the general inquiry statute  Inquiry statutes take the following general form: 1. Set out the nature of matters that may be the subject of an inquiry o Part I of the federal Inquiries Act authorizes inquiry into “any matter connected with the good gov’t of Canada or the conduct of any part of the public business thereof” and Part II allows for departmental inquiries into “the state and mgmt of business, or any part of business, of a department” 2. Grant powers of compulsion to commissioners to summon witnesses, place them under oath and cite for contempt as well as order production of doc evidence o Very powerful – may force one to self-incriminate 3. Extend procedural protections to those being investigated or who may be subject to adverse findings of fact (min protection, in addition to c/l)  Gov’ts usually initiate PIs by an order-in-council issued under the authority of an inquiry statute, which sets out terms of reference and names the commissioner  The commissioner is usually a judge, but commissions are exec gov’t functions, not courts or part of the judiciary (lack of strict sep of powers makes this ok in Canada) o In USA, judges can’t run inquiries i. Don’t want judges to be seen as “agents” of the executive o No concern for this in Canada – has been observed that judges on commissions are not sitting as a judge i. The authority to operate comes from Inquiries Act, not s. 96  Sub-delegation? o In Arar, Judge O’Connor used one lawyer, Toup, as a one-man commission to go out and look into the treatment Arar received o Begs the question – is this sub-delegation? o Is the intent of Parliament to grant authority to the specifically named person, or is this ok? i. May be an unusual case in admin where you might want to argue against sub-delegation

b. Terms of Reference  Important to determine WHAT the inquiry is intended or able to achieve  Gov’ts can use these terms to exercise a significant degree of control over how far- reaching the inquiry will be  Terms of reference represent the “law of the inquiry” and are binding on the commissioner but they are still regulations and thus open to modification by the executive at its discretion  A commissioner’s interpretation of these is subject to JR – substantive review  Cornwall Commission – the OntCA stated that the terms of reference create the jurisdiction of the commission  if go outside, will be reviewed on correctness  Krever - the court held that leeway should be given to an inquiry when engaged in interpreting its own mandate, but this may refer more to procedural issues, rather than substance (ie greater deference when inquiry is policy-oriented, rather than investigative)

c. Independence and Bias  WE want PI’s to be independent – but not much law guarantees independence of them o The credibility and effectiveness of an inquiry depends on the degree to which is and appears to be independent of the exec o PIs are not adjudicative bodies, they are not subject to the same protections as the judiciary  The court in Dixon raised the fear that since an inquiry’s terms of reference may be changed by Cabinet at will, a firm foundation for independence is lacking  However, these fears have not borne fruit  the government knows doing this would undermine the PI’s credibility and create a political firestorm o Government would have credibility issues if it set up commission w/ perception of independence and then undermine it  A particular commissioner may be challenged on the grounds of bias if they have prior involvement with interested parties  The court has distinguished bw a PI and a trial process for the purposes of the bias test and held that since a PI is not an adjudicative process and uses more relaxed rules of evidence, a more relaxed bias standard is appropriate and rejected going so far as the “closed mind” standard [Beno]

d. Constitutional Issues  Delegated authority in Canada is subject to the constraints and obligations imposed by the constitution and their terms of reference may be open to constitutional grounds  Provincially-appointed inquiries are subject to challenge on federalism grounds (esp when they invade criminal law) o Limits on the authority of provinces to establish PIs that question individual acts of a criminal nature, where the “pith and substance of the PI was alleged criminal wrongdoing” [Starr] o The court has since narrowed this. In Consortium Developments, they held that even if a PI turns up misconduct of a criminal nature, it lacks the power to make criminal findings and refused to quash a judicial inquiry  The Charter applies to a PI’s exercise of coercive statutory powers, as well as human rights tribunals as gov’t actors [Blencoe] and likely for entities implementing important gov’t programs/policies (based on the test from Eldridge)

II. Procedural Justice Issues  Investigations in admin law are ambiguous o Investigations that ascertain evidence (ie. are preliminary, evidence seeking) are not subject to PF o But when final determinations are made on rights and obligations, must be done so in accordance with due process (Knight)  Investigative inquiries are subject to the duty of fairness since 1. Inquiry statutes authorize them to compel witness testimony 2. The finding of fact of a PI can carry significant consequences 3. PIs operate like judicial hearings

A. Inquisitorial Process  PIs employ an inquisitorial approach rather than an adversarial one to adduce evidence and the commissioner must conduct the investigation in an impartial and non- prosecutorial manner  PIs will usually produce procedural rules to govern the hearing process at the outset of the inquiry and “the nature and purpose of PIs requires courts to give a generous interpretation to a commissioner’s powers to control their own hearing”  In the absence of explicit statutory power to make procedural regs, the rules of a PI should be subject to JR for compliance with principles of PF

B. Standing  Normally, standing = for those who have sufficient interest  But in PI’s, they are called for the public interest, and much of the population may be affected by the outcome   The issue of public standing in PIs is more nuanced than for ordinary legal proceedings o It can be granted in degrees in terms of both participation and duration  The Arar Inquiry held that standing will be granted to those with a “substantial and direct interest in the subject-matter” and intervener status may be granted to those who have a “genuine concern” about the issue

C. Representation by Counsel and Role of Commission Counsel  It is generally accepted that parties to PIs may be represented by counsel in the proceedings (as per s 12 of the IA)  Witnesses called to testify at a PI are not given this right but it is a matter for the commissioner to decide, depending on the nature of the PI and the evidence sought  The cost of representation may be a serious barrier to access, but it is unlikely that the subject of an inquiry can successfully argue they have a constitutional right to funded counsel (given the decision in Blencoe)  Counsel for a commission of a PI has a unique role in that they do not take a prosecutorial rule, but rather they advise the commission and must perform their functions in an impartial function that does not create the impression the proceedings are adversarial [Krever]

D. Notice and Opportunity to Respond  Section 13 of the Inquiries Act requires that any person in whom a finding of misconduct may be made must be notified in advance and given an opportunity to respond  This embodies the minimal fairness duty, but it is unclear as to what constitutes a “charge of misconduct,” when the notice should be given and what “ full opportunity to be heard” entails

E. Disclosure  PIs would seem to support broad powers of discovery, but these powers may conflict with competing interests in confidentiality (as in nat’l sec matters, solicitor-client privilege, etc)  Where a recipient objects to a subpoena, they would need to make one of these arguments: 1. The demand for disclosure is unconstitutional 2. The evidence goes to a matter not within the terms of reference of the PI 3. The statutory authorization is not broad enough to include the demand  It will rarely be sufficient to argue that disclosure is unfair at c/l  In McKeigan, the court dealt with the issue of claimed judicial immunity and held that judges cannot be summoned to answer questions concerning their deliberations (it seems likely that solicitor-client privilege would be treated similarly)

F. Conducting Hearings in Public o The need to receive evidence in secrecy created a serious challenge to the Arar inquiry’s credibility, so O’Connor dealt with the issue in several ways: 1. He provided a public summary of evidence 2. He granted access to certain confidential info to Arar so he could prepare his evidence 3. He convinced Arar and the media that the most important facts were indeed open to public scrutiny Substantive Review o Can a person who is unhappy with findings of PI challenge by JR? o Dealt with in Morneault . The court decided the finding (of misconduct) constituted a reviewable “decision,” identified the appropriate SoR for this fact determination as patent unreasonableness and held that the findings were patently unreasonable o In Stevens, it was argued that the commissioner had exceeded the jurisdiction given to him by the PI’s terms of reference. The FC agreed and set aside the report, on the basis that the commissioner exceeded his authority by developing his own def’n and applying it to Stevens’ actions  The court rejected an argument that the court should not adopt an “overly legalistic” or strict approach to reviewing the PI’s interpretation of its terms of reference… Public Inquiry and Public Benefit Criticisms of PIs (from Chretien):  easy way for opposition to dig up dirt  way for gov’t to dodge responsibility or postpone controversial decision  often turn into show trials, kangaroo courts and political entertainment  evidence is not respected  innocent is not protected  scores of reputations are shattered for no good cause It is argued that Canadian inquiries have become over-judicialized and too expensive  however, PIs do have the potential to enhance public accountability and bring light on actions and decisions hidden from the public and to make independent recommendations for change following extensive public consultation o the Arar investigation is a good example of the benefits of a P

Chapter 15 Access to Administrative Justice and other worries

Introduction  Rule of law no less significant in admin proceedings than court room – access to a decision maker may make the difference between justice and injustice  Analysis in this chapter focuses on adjudicative tribunals  What does access to justice mean in context of admin tribunals? o Need to pay attention to the stat provisions that empower tribunals as well as the every day practice before the tribunal o Possible to approach the question of access from perspective of person affected by admin decision from 3 distinct ways . 1. Access to tribunal – getting there . 2. Access to legal or other knowledge necessary to obtain tribunal services . 3. Access to resources to navigate tribunal system Access to Administrative Justice: The Tribunal (tension – fairness vs. efficiency) I. Standings a. First sense of standing = standing to challenge admin action in court b. Not every citizen is entitled by right to challenge admin action b.i. JR only for those with sufficient legally recognized interest in the manner b.ii. Text for standing = whether a person is a person aggrieved by the administrative decision b.ii.1. A person aggrieved = one who will suffer some peculiar grievance of their own beyond some grievance suffered by them in common with the rest of the public (Friends of Oldman River Society) c. Policy: limits on standing promote efficiency in admin action by preventing artificial or academic challenges d. In addition, respect rights of 3Ps – general policy of course it not to decide issues in the absence of parties who are most directly affected by the courts decision d.i. Ie. if those who are most directly affected are content to live with it, the court won’t let curious busybodies get in there e. Discretionary public interest standing: e.i. Has been applied to challenge admin bodies in court e.ii. Leading case = Finlay v. Canada (Minister of Finance) e.iii. Test for whether you can get public interest standing: e.iii.1. Is the matter serious and justiciable? e.iii.2. Is the party seeking standing genuinely interested in the matter? e.iii.3. Is there are any other reasonable and effective way for the matter? e.iv. In Finlay, court applied test to grant standing to a recipient of social benefits to challenge the conduct of the fed government towards the province of Manitoba under Canada Assistance Plan. The applicant raised a serious issue wrt the legalist of the governments action, and as a recipient of the benefit in question was definitely genuinely interested. B/C neither the fed gov nor the provinces had an interest in compelling penalty from fed government, court found no reasonable alternative by which it would have reached the court f. Purpose of granting public interest standing: “Prevent immunization of legislation or public acts from challenge” (Vriend v. Alberta) g. BUT in context of admin tribunals, scope of such challenges may be limited to legislative provisions and public acts of a legislative character h. In ontrast to courts where law of standing governed by the c/l, in tribunals scope is set out by statute governing tribunal i. Issue of standing has become more important as the duty of fairness since Nicholsaon v. Haldimand j. Historically have been issues with standing in regulatory tribunals, labor tribunals k. In labor board setting, standing issues often involve 3Ps EEs who are affected by another EE’s grievance – ex. Where incumbent EE would be displaced due to a successful grievance k.i. Should incumbent EE get opportunity to participate k.ii. Answer? No – except in limited circumstances (CUPE v. Canada Pos) II. Hearings a. 2nd aspect of physical access = how parties interact w/ tribunal b. Types of proceedings usually set out in empowering statute c. Once admin body made, government may have legal obligation to provide funding to ensure fairness, rule of law, and access to justice before the tribunals c.i. Khan v. University of Ottawa – student was going to fail course. Where decision affected significant interests of individual and turned on credibility, fairness required that the individual have opportunity to put his case forward d. Ontario Landlord and Tenant Board – now has video conferencing as substitute for in-person hearings d.i. Greater access w/o travel time BUT there may be disadvantages of a hearing by video d.ii. Rule 5.2(2) of Statutory Powers Procedure Act states a tribunal shall not hold electronic hearing if party satisfied the tribunal that holding electronic rather than oral is likely to cause party prejudice e. Questions arise when efficiency or cost cutting measures begin to erode the fairness of a decision-making process f. What legal constraints are in place to prevent government from reducing resources available to tribunals?

Access to Administrative Justice: Information and Knowledge o The way in which tribunals communicate the info and knowledge necessary to access its services or remedies varies. It is rarely set out in empowering statute. So it the policies of the tribunal itself that are determinative.

I. Guidelines a. Guidelines  consistency, structure discretion b. Transparency with respect to standards is an emerging aspect of access to justice c. Guidelines must be public available d. Court has said that where guidelines are in place, ignoring them without justification  breach decision maker’s duty of fairness (Bezaire v. Windsor) e. B/c tribunals bound by stat provisions, not open to a tribunal to develop binding guidelines of its own initiative f. Thus, while transparency calls for tribunals to develop and publicize guidelines on which parties before a tribunal may rely, the principles of admin law limit the effectiveness of that reliance by requiring that a tribunal not treat its own guidelines as binding g. Have authority to issue rules of practice, so long as consistent with enabling statute g.i. Rules will determine whether tribunal is easy or difficult to access g.ii. Set out applicable time limits for filing material, extent of material and disclosure provided, whether hearings will be in writing, person, electronic II. Simplification (plain language  facilitates access) a. Providing persons w/ forms that are unduly complex = closing doors to tribunal b. Most tribunals committed to simple, user friendly forms III. Language a. Providing services in language of person that is seeking out tribunal also facilitates access b. R v. Tran – s. 14 of Charter  a party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter c. Policy: Right to be heard implies right to understand the case to be met d. But the guaranteed standard of having an interpreter is not one of perfection – the goal of the interpreter is one of continuity, precision, impartiality, competency, and contemporaneousness e. But that was in court proceedings – what about admin? f. Right to interpreter considered in Filguiera v. Garfield – tribunal ordered that fairness required the complainant have an interpreter, even though it would have an impact on scarce resources f.i. Employment case – EE even had bilingual agent helping him f.ii. But tribunal still said give him interpreter g. So this case shows the principles of Tran being applied flexibly IV. Prior Decisions a. While privacy concerns may make it difficult to publish decsions, having access is seen as a key aspect of its public interest function b. It all varies by tribunal – some will publish in easy to find way, others will only publish those of great significance c. Tribunals are not bound by their earlier decisions – but they do aim for consistency and will be strongly influences by past like decisions

Access to Resources Needed to Navigate the Tribunal System (financial barriers are particularly important wrt vulnerable parties) I. Legal Representation a. New Brunswick v. G(J) – mother who was losing her kids to Child Services was constitutionally entitled to legal representation b. This case may have application in context of admin tribunals, but reach may be modest c. However, many provincial legal aid statutes fund it for admin tribunals II. Fees and Costs a. Fees a.i. Tribunal funding – self funded, government funding a.ii. Most adjudicative tribunals are free to the parties but the practice of charging fees is gaining attention a.iii. BC Administrative Tribunals Act  gives tribunals power to make regulations that set out fees for filing applications before tribunals a.iv. Fees of ANY size can be a barrier – and this is bad because low income individuals are much more likely to be before an admin body than a court a.v. Christie v. BC – argue that tax on legal services prevents people from accessing courts and tribunals ad thus violates right to access justice a.v.1. SCC holding was that not every limit on access is unconstitutional b. Costs b.i. Should winning party be able to claim against loser as in civil proceedings? Should a tribunal be able to recover costs? b.ii. BC Administrative Tribunals Act – gives tribunals ability to develop their own cost regimes b.iii. BC Vegetable Greenhouse v. BC Vegetable Marketing Commission – decision suggests that where costs are available, unless otherwise circumscribed by a tribunal’s enabling legislation, the applicable principles are similar to those in civil courts b.iii.1. EXCEPTION – potential for liability of losing party to pay costs directly to tribunal III. Budget and Staffing a. Can a court compel the government against its will to fund or organize a tribunal differently? a.i. Happened in Singh – government had to provide funding for oral hearings, also resulted in reorganization of entire refugee determination process

Chapter 16 Advocacy Before Administrative Tribunals

Introduction  Advocacy = art of persuasion  Differences b/w admin tribunals and courts, as well as between admin tribunals dictate different techniques of advocacy   cardinal rule of advocacy in admin law = know the tribunal Applicable Law – must determine which sources of law apply, and how each will affect the nature of the advocacy I. Governing Statutes and Regulations a. Critical starting point b. Statute that establishes the decision maker may not be the same statute under which proceedings arise c. Be familiar with all relevant sections b/c decision maker makes decision in accordance with the statutory mandate c.i. Burden on advocate to ensure statutory conditions are met, and appropriate evidence is called to establish what the statute requires c.ii. Good advocate presents a case that the decision maker will think is just and in accordance with the purpose of the statute d. Advocacy teaches that cases are built around themes d.i. The purpose of the statute provides a theme for admin cases d.ii. Signal to the tribunal what you know and understand the problems that they seek to address d.ii.1. So that when you make your argument, you are furthering the purpose of the statute and the tribunal itself II. Statutory Procedural Codes a. SPCs set minimum standards of procedural fairness for admin proceeds – in BC, we have the Administrative Tribunals Act b. VERY important c. The question of who may be a party to a proceeding can be answered using the statute governing the tribunal, SPC’s, and the C/L c.i. Always start with the statute governing the tribunal – many say that persons who are “interested or affected” by the proceeding can be a party c.ii. Otherwise the SPC may tell you III. Tribunal Rules, Policies, and Guidelines a. General agreement that rule making by tribunals is a good thing – advantageous because of the diversity of admin tribunals b. 2 categories of rules b.i. Formal, legally binding b.ii. Non-binding policy statements and guidelines c. Tribunal rules typically deal with basic topics: circs in which tribunal will grant adjournment, service of docs, motions, etc d. b/c tribunal is intimately aware of its own rules, advocate should be too IV. Common Law Principles of Procedural Fairness a. Chief duty of advocate = to determine what level of procedural protection should be sought pursuant to C/L principles of PF b. Always be prepared to argue the 5 Baker principles c. BUT clear legislative restrictions will oust procedural protections that would normally be afforded under the C/L c.i. In such circs, only the Charter/Constitutional rights can trump V. Charter of Rights/Constitutional Law a. Must consider whether there are any rights at issue, and if so, whether the tribunal has jurisdiction to entertain a Charter/Constitutional argument, or whether must go before a court b. Administrative Tribunals Act distinguishes which tribunals have jurisdiction vs. which don’t c. If both tribunal and court have jurisdiction, tribunal is obliged to exercise it’s jurisdiction according to SCC in Tranchemontange Pre-Hearing Issues – all provide opportunities for advocacy I. Notice a. Proceeding = commenced by the client’s recipient of a notice of a hearing b. Fundamental question = is notice sufficient? Does it comply with stat and C/L requirements and the tribunal’s rules? c. Failure to provide the necessary notice may lead to pre-hearing motion, challenge to tribunal’s jurisdiction, JR or appeal d. But – must consider – is an objection really necessary and appropriate? II. Disclosure a. Rare for statutes, SPCs to address this issue b. Tribunals generally make their own rules on exchange of docs, statements, expert reports, etc c. Also governed by the common law – the extent of disclosure obligation varies depending on nature of tribunal and the nature of the interest affected d. General admin duty is to ensure the individual knows the case to meet – basic level in admin e. Disclosure is important part of procedural fairness – though SCC has never gone as far wrt disclosure as it has with criminal trials f. BUT if a decision may result in a loss of livelihood and damage to professional reputation, the duty of disclosure may be higher, as the duty placed on Crown prosecutors in crim context (governed by R v. Stinchcombe) f.i. Disturbing? What about mothers about to lose their children? g. If disclosure is insufficient  bring pre-hearing motion III. Oral or Written Hearing a. Generally, the tribunals constituent statute will simply say a party is “entitled to a hearing” b. SPC’s contain general provisions that parties are entitled to present evidence, make submissions c. BUT right to a hearing does not necessarily = oral hearing d. Whether or not oral hearing is required determined at C/L under Baker e. Advocate must always consider whether to request an oral hearing in the particular case e.i. Case law suggests the decision turns on whether there is an issue of credibility e.ii. From advo perspective, also consider relative strengths and weaknesses of the witnesses, whether public interest may be generated, expense, and time IV. Agreed Statement of Facts a. Many tribunals expect parties to cooperate and make an agreed statement and agreed book of documents b. Makes process faster, to comport with values of efficiency and expeditiousness c. DON’T agree to facts unless have conducted a complete factual and legal examination of the case V. Witnesses a. 2 important issues a.i. Which to call a.i.1. Is the witness essential? a.i.2. Does the witness have undesirable information or qualities a.ii. How to secure their attendance b. Do you need expert evidence? If yes, find the best possible, retain and instruct him properly and ethically, tender his/her evidence in accordance with tribunal rules and policy

Advocacy at the Tribunal Hearing I. Preliminary Motions at the Hearing a. Some serious Prelim motions will be argued at the start of the hearing a.i. For example, challenges to jurisdiction, bias, tribunal independence b. Careful here – if challenge jurisdiction at a court and the court believes the jurisdiction issue would be addressed by facts coming out in the case, then you will have acted prematurely and when you go back to the tribunal they won’t exactly welcome you with open arms c. Important to inform hearing officer in advance so the tribunal is prepared to deal with such challenges II. Opening Statements a. Purpose is NOT to make a legal argument  rather it is to set out theory of the case, identify the issue from the perspective of your client, and to offer a simple solution b. Secondary purpose is to give a road map for tribunal about how case will be laid out c. DON’T promise what can’t be delivered III. Evidence a. Tribunals not bound by strict rules of evidence b. General privileges still apply c. BE AS DIRECT AS POSSIBLE c.i. Although hearsay is admissible, the c/l concern is based on fairness, and so the more direct the evidence, the more likely it is to be accepted as establishing the point the advocate wants to make IV. Relevance a. Tribunals don’t have jurisdiction to hear evidence not relevant to the proceedings b. Relevant evidence = evidence having a tendency to make the existence of any fact that is of consequence to the determination of the matter more probable or less probable than it would be without the evidence V. Weight a. More reliable  more weight VI. Admissibility a. Look to tribunals’ statutory provisions and SPC’s to address admissibility issues VII. Standard of Proof a. Usually, the standard is the civil standard of the balance of probabilities b. BUT in admin proceeds with a significant effect on the individual, the quality of evidence required to meet the standard of proof is clear, cogent and convincing evidence c. Advocate should call BEST EVIDENCE POSSIBLE d. Lesson is = know the tribunal d.i. Example – more serious subject matter, the less acceptable is hearsay d.ii. BUT its specifically permitted in child welfare proceedings in light of the need to have all available information before the decision maker, no requirement to have stricter rules d.iii. Janisch doesn’t like this – concern about it being disingenuous to let these types of decisions to be made at a lower level of proof than a case such as a professional discipline case d.iii.1. But of course on the other hand, if we start imposing strict requirements on child custody proceedings, we will slow the process down, create barriers that informality may have led to a better result VIII. Judicial Notice a. May take notice of generally recognized facts w/in their specialized knowledge IX. Examination in Chief a. MORE IMPORTANT skill than cross b. More cases won on examination in chief than on cross-exam, because the advocate can control it c. Need to assist the witness tell the story in their own words X. Cross-Examination a. May vary considerably in admin proceedings from trials b. Statutory procedural codes expressly limit cross-exam rights c. Primary purpose = to test the credibility of the witness XI. Tribunal Precedents a. Many have well-established jurisprudence  bold to ask them to depart from it b. BUT, if need to – best approach is to acknowledge the existence of and policy reasons for the tribunal’s line of authority and to argue that a modification of the jurisprudence is necessary to give continuing effect to the policies identified by the tribunal XII. Closing Argument a. Purpose = persuade the tribunal that your client should win Conclusion KNOW THE TRIBUNAL

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