Administrative Law Update – A West Coast Perspective

2010 National , Labour & Employment Law and Privacy & Access Law Conference Thora Sigurdson Fasken Martineau DuMoulin LLP Introduction

• The BC experiment: The Administrative Tribunals Act post Dunsmuir

• Two recent decisions of the Supreme Court of Canada Administrative Tribunals Act of BC

• Purpose: to clarify and simplify the rules and processes for administrative decision makers, and for the Courts and the parties on review Administrative Tribunals Act of BC

• Mechanics

• Where There is a Privative Clause

• 58(1) If the tribunal’s enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction Where There is a Privative Clause

• 58(2) In a proceeding relating to expert tribunals under subsection (1) • (a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable • (b) questions about the application of rules of and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and • (c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal’s decision is correctness Where There is a Privative Clause

• 58(3) For the purposes of subsection (2)(a), a discretionary decision is patently unreasonable if the discretion • (a) is exercised arbitrarily or in bad faith, • (b) is exercised for an improper purpose, • (c) is based entirely or predominantly on irrelevant factors, or • (d) fails to take statutory requirements into account. Where There is No Privative Clause

• 59(1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natljtidtural justice and proce dlfidural fairness

• (2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable

• (3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable Where There is No Privative Clause

• 59(4) For the purposes of subsection (3), a discretionary decision is patently unreasonable if the discretion (a) is exercised arbitrarily or in bad faith, (b) is exercised for an improper purpose, (c) is based entirely or predominantly on irrelevant factors, or (d) fails to take statutory requirements into account.

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

• For discretionary decisions, the term is defined

• Section 59(2)(a): The Court cannot interfere with “a finding of fact or law or an exercise of discretion” unless it is “ppyatently unreasonable” Pre Dunsmuir v. New Brunswick, 2008 SCC 9

• Patent unreasonableness standard has been part of the law since CUPE Local 963 v. New Brunswick Liquor Corp., [1979] 2 SCR 227

• Patently unreasonable meant • Openly, clearly, evidently unreasonable • Clearly irrational • Evidently not in accord with reason • A decision so flawed that no amount of curial deference could justify letting it stand Dunsmuir v. New Brunswick

• Distinction between reasonableness and patent unreasonableness is “illusory”

• “unppqppalatable” to require parties to accept a decision because “the irrationality of the decision is not clear enough” Administrative Tribunals Act

• Where does that leave us in BC?

• Some guidance from the Supreme Court of Canada in Khosa, 2009 SCC 12 Khosa re: Administrative Tribunals Act

• Patent unreasonableness lives on in BC

• “but the content of the expression…will necessarily continue to be calibrated accordinggg to general princi ples of administrative law.” (emphasis in the decision) Jensen v. Workers Compensation Appeal Tribunal, 2010 BCSC 266

• The legislation requires decision makers to apply the patent unreasonableness standard

• The standard was derived from the common law

• As Dunsmuir abolished the standard of patent unreasonableness, the definition must be the common law definition prior to Dunsmuir Viking Logistics Ltd. v. Workers Compensation Board, 2010 BCSC 1340

• The Court relied on Khosa’s statement that the “content of the expression” would be measured in accordance with the general principles of administrative law

• Patent unreasonableness means reasonableness at the most deferential end of the spectrum

• “…reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision makinggp process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” Coast Mountain Bus Company v. CAW, Local 111, 2010 BCCAC 447

• The BCCA considered section 59 of the ATA and the impact of Khosa “…Dunsmuir dealt with standards of review at common law, and nothing said in that decision related to the interpretation of legislation mandating standards of review,.. [A]lthough Binnie J. referred in Khosa to the Administrative Tribunals Act and similar legislation he was making the point that the content of the standard of review stipulated by legislation must be interpreted in the common law context. He was not saying that the common law meaning of a standard of review should affect the interpretation of legislation with respect to the applicable standard of review and, indeed, he observed that effect must be given to the standard of review of patent unreasonableness prescribed by s. 58 despite the fact that this standard of review no longer exists at common law after the decision in Dunsmuir.” Supreme Court of Canada

• Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 • Common law standard of review case ((pUtilities Commission Act does not incorporate the standard of review provisions of the ATA)

• Standard of review on question of mixed fact and law is reasonableness “(understood in the sense that any conclusion resting on incorrect principles of law would not be reasonable)” Supreme Court of Canada

• In BC, trend away from isolating the legal question from questions of mixed fact and law (Hayes v. Weyerhaeuser) Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53

• A modern Treaty case

• Issue was whether the Crown’s duty to consult had been met with respect to a decision under the Yukon Lands Act and the Territorial Lands (Yukon) Act

• LSCFN argued that it was a constitutional issue and that administrative law principles were of little assistance Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53

• The Court held: • Aboriginal rights exist within the general legal system • Administrative decision makers must confine their decisions within constitutional (and legal) limits • The constitutional limits include the honour of the Crown and its supporting doctrine of the duty to consult • Within the constitutional limit, regard may be had to the procedural safeguards of natural justice and procedural fairness • Decisions with respect to legal and constitutional limits are reviewed on the standard of correctness • Decisions within those limits are reviewed on the standard of reasonableness