Roncarelli v Duplessi/ Montreal Port Can only use a statute for the purpose for which the statute

was made, not for a different reason BC v Imperial Tobacco Law is supreme over officials of the gov t Preclusive of the influence of arbitrary power Shell v City of Vancouver It is Ultra Vires for the city to consider things outside of their territorial limit. Legislative/ Policy vs administrative Inuit Tapirisat No procedural fairness on cabinet -political -subordinates Indicia of Admin Character: -What is the nature of the decision? -size of group affected Matsqui-broad grounds of policy no PF Factors of leg/policy decision Imperial tobacco -bodies exercising leg functions - policy decisions - large number of ppl affected Homex (developer vs municipality) -substance over form

Office holders & Threshold issue Knight v Indian Head School 1) Nature of decision (final/ admin) 2) Nature of relationship between decision maker & individual 3) Effect of decision on individual s rights Dunsmuir Procedural Fairness-if both officer and contract, you are not owed an administrative law duty of fairness. Exceptions: -not protected by Contract. - or dismissed at pleasure. - statute that gives them some sort of procedural fairness Statute source of PF Authorson If there is a clear unambiguous statute it will supersede Common law duties of PF CONSTITUTIONAL ISSUES Bill of Rights-binding only Feds S 1(a) right to life, liberty security of the person & enjoyment of property, and right not to be deprived thereof except by due process of law S 2(e) cannot deprive person of right to a fair hearing in accordance with principles of fundamental justice for the determination of his rights and oblis Authorson -Bill of rights only operates in an individualized adjudicative setting The Charter S 7 everyone has right to life, liberty, and security of the person and the right

not to be deprived therof except in accordance with principles of fundamental justice Singh v Canada overruled the procedures in Immigration Act because of Bill of Rights and Charter... because deportation would have been a deprivation of security FACTORS AFFECTING THRESHOLD Emergency Situations -LIMIT THRESHOLD & CONTENTS -minimal/ suspended duty of fairness -courts will show deference R v Randolph (stopping mail) -when emergency passed, decision should be reconsidered. V. M.- seizing JW s kids to give blood transfusion, Not allowed to call all evidence that they had- acceptable Investigatory/ interim decisions -LIMIT THRESHOLD ISSUE Interim decisions generally do not attract duty of PF. Lafleur-purely investigatory= no PF De Facto Final (may be PF duty) Re Abel look at what is actually happening not just form Public Inquiries (may be PF duty) Canada v Canada (Blood)- before condemns a person must give opportunity to answer allegations Legitimate expectations -GIVES MORE CONTENTS (affects threshold/ contents issues) Mount Sinai Hospital v Quebec

Threshold Issue:
Commonlaw Cardinal -Administrative decision -rights, privileges and interests affected

-if established may create PROCEDURAL not SUBSTANTIVE rights. Legitimate expectations if: Sinai- express representations CUPE- past practice Congregation- past conduct What is the duty of PF?

-must show that she didn t know Pre- Hearing Disclosure CIBA- Geigy- requested disclosure of materials to be relied upon. -board refused in order to proceed expeditiously -Court upheld for similar reasons Delay by Agency -Prima Facie- unreasonable delay -Prejudice- source of prejudice Blencoe v BC (HRC) Prejudice must be caused by the proceeding itself, not result of other factors such as media coverage. Kodellas v Sask - Delay of 4 yrs due to Commission no fault by complainants -On the facts Actual Prejudice Found but Parties expected to make efforts to preserve evidence/ locate witnesses Oral Hearings (also see Baker factors) Masters v Ontario -sex assault, just got to see list -process not akin to criminal trial -just list of names is good Khan-if credibility is in issue oral hearing Hearings Open to Public Open unless compelling reasons to close them Charkaoui- agencies have discretion to close or statute may mandate Disclosure Party needs to know case to meet

Charkaoui CSIS security grounds Statute that sensitive material could not be provided to named person or their counsel -not absolute right -where serious consequences follow the person must be given the info or a satisfactory substitute May v Ferndale- prisoners serving life sentences. -reclassification based on new matrix Production of matrix was required Authority to Stinchcombe-does not apply to admin hearings -decision maker must disclose the info relied on, and must know the case they have to meet Official Notice Judicial notice can rely on decision maker s own expertise Counsel Representation -ability to have a lawyer speak for party General rule : there is a right of counsel wherever there is a right to a hearing however tribunals may exclude lawyers

Content
Baker Test 1) Nature of Decision being made 2) Nature of Statutory Scheme 3) Impact on person affected 4) Legitimate expectations 5) Choice of procedure made by agency NOTICE Content of the notice -enough info to determine if ppl affected -place/time of hearing -type of decision to be made -enough time Kriever v Canada- blood system (HIV) -misconduct allegations after claim not to be civil or criminal procedures parties were sophisticated and showed in conduct of hearing Re Webb Low functioning mom w/ vandal kids Court said -must be flexible regarding notice -look at all factors -had cmnty service worker stop by -look practically at person dealing with THIS WAS DONE

Re Men s Clothing Factors -importance/seriousness of case -complexity of matters at issue -impact -capacity to represent self Re Parrish- Lawyer while testify Suggesting right to counsel by a witness

-person subpoenaed to testify -privacy not assured -person deprived of rights/irreparable harm -damage to reputation = ALLOWED TO HAVE COUNCEL Gov t Funded Counsel New Brunswick v G.J. Where s 7 is engaged charter may require state counsel depending on -seriousness of interests -complexity -capacity of party -ability of judge to assists Evidence -not normal rules of evidence -inadmissibility may lead to breach of PF if denial of opportunity to make a case or -excessive reliance on unreliable evidence Question is it fundamentally fair? Cross Examination -when are you able to x-examine Re County of Strathcona (smell) -there is a need to test the evidence but, it wasn t necessary to require expert to do that Re B -child sex abuse registry based on a recanted hearsay confidence 1) Importance of decision to person affected 2) How central issue is to the case

Reasons Baker Reasons maybe required -if there is a stat right of appeal -if necessary for judicial review -5 baker factors suggest common law right Adequacy of Reasons 2 issues 1) Is there a duty to give reasons? 2) Are reasons provided adequate? Reasons should: -record findings of fact and basis -show consideration of submissions and factors -insight into why decision was made -reasons of decision maker/assistantBaker

Pearlman-miniscule amount at stake was so minimal that it was unlikely. Prior Association -how much time has passed -how close the connection was Marques v Dylex- size of pool of potential appointees. Involvement with Investigative or Charging Decision -general rule is member whose decision was being appealed cannot sit on appeal Attidudinal Bias What will be permissible will depend on the context of the agency and the decision in question. Paine- application for tenure denied and one member didn t get on with him -it was inherent in the process that he would be judged by colleagues -small pool (accepted by Uni) Large v Stratford-mandatory retirement -Human rights tribunal member had publicly stated a position that were not directly relevant to case -Human Rights is a specialized area and tribunal made of people with background -impractical to exclude ppl who expressed views Old St. Boniface- elected politician sitting on committee. -Was he bias? -no bias because, he took a position as elected officials and was meant to take a position

BIAS
Committee for Justice and Liberty 1) is the appearance of bias, NOT the actual state of mind 2) to judge appearance use REASONABLE PERSON TEST Financial Interest (Material interest) Usually Biased UNLESS 1) Indirect interest--- it may be enough to establish bias -how substantial interest is -how clear the interest is. Energy Probe v Canada- Olsen had an indirect interest in more power plants -however it was too remote, and too speculative 2) de minimis

-Test: are they capable of being persuaded Newfoundland Telephone- a board member publicly stated that he would be adversarial regarding pension issue during the adjudicative phase.-- Bias Institutional Independence Valente Judicial Independence requires: 1) security of tenure 2) financial security 3) institutional independence Applies to tribunals as well PRINCIPLES OF INSTI INDEPENDENCE 1)Matsqui- Indian reserve tax CP SCC said: Valente applies but must be put on a case by case basis 2) Ocean Port Hotel-not secure tenure -unambiguous statute authorized... Statute superseded the Common Law 3) Charkaoui The judge was compromised in that he would be biased for gov/person/ investigator not decision maker Delegation A delegate cannot delegate Unless: Contrary intention in the statute -entire tribunal delegates PART of power to subset -delegates to an employee -delegates to different tribunal -adopts decision of different entity

Power is delegated by: -express act - Cannot be unlimited -Delegator must retain ultimate control -must act within limits of power Things that cannot be delegated: -appointment to an office -ability to make an appointment -judicial/ disciplinary powers Vine- court reluctant to allow delegation where interest is significant to person affected. Ministerial Powers Carltona Doctrine- presumed that no one person could do all minister s duties =an official acting in the name of the minister is not a delegate- actions presumed to be the action of minister. Delegation of Duty to Hear (someone else hears and reports) Jeffs v NZ Dairy- Board could have appointed someone to hear evidence and report back provided that board was fully informed of the evidence heard and the submissions made. Institutional Decision Making Consistency Consolidated Bathurst Impartiality of the Panel -control to call board meeting -no attempt to form consensus -no votes -no minutes -no mandatory attendance

-pannel is free to decide as they wish Hearing -no discussion of the facts -just discussion of law and policy Tremblay v Quebec -deliberative secrecy is not the same as that in court decision Ellis-Don Ltd. -presumption of regularity -simply seeing that a decision has changed was not enough to show Summary Not improper if: -Initiated by panel and not imposed -Facts not debated -Free to make own mind up AGENCY COUNSEL -can review draft decisions -counsel not allowed to write the decision even if suggest substantial revisions.-Khan v College Guidelines Bell Canada- guidelines are allowed BUT -must be within scope of jurisdiction -cannot be contrary to statute -challenged if bad faith/ influence Thamotharem-new law to regulate questioning and left discretion open= soft law Lead Cases (Kovak Geza) v Canada -using lead cases is okay so long as there is no bias to decide the case

SUBSTANTIVE REVIEW
STANDARD OF REVIEW -how much deference courts should give decision of admin agencies Dunsmuir Common law 2 standards of review A) Correctness (no deference) B) Reasonable (deference) Which Standard Applies? (A) Identify the question - Fact generally deference - Law not deference (B) Any Precedents? Khosa- Racer deported Std= reason Proprio-realtors own stat- Std= reason Northrop-Can Int trade trib= correct Celgene-med rev board= reason Alliance pipeline- NEB Act= reason (C)Pushpanathan 4 Factors 1) presence of a privative clause indicates deference R v Crevier-It is unconstitutional to cut the courts out entirely 2)Expertise of tribunal a) Assess expertise of tribunal b) Court s own relative expertise c) Specific issue before decision maker relative to the expertise 3)purpose of tribunal (Stat Interp) Is it type of Q courts are good at 4)Nature of question at issue -Fact/ Law -Constitutional Issue -Question of law

Indicia of Reasonableness (def) -privative clause -own statute -expertise in type of law Indicia of Correctness (no def) -central importance to legal system -constitutional questions -jurisdictional lines -true questions of jurisdiction, does the decision maker have the power. Dunsmuir -abolished patent unreasonableness Errors of law assessed with: -Deference if area of tribunal s expertise -Correctness if outside of expertise and important to legal system as a whole Legislated Standards of Review Question of how much CL to aid Statute. Owen- not guilty by reason of insanity -Strong Privative Clause---only interfere if: a,b,c Held: where there is precise statutory language, absent constitutional issues, the courts should apply the statutory standard and the common law analysis Khosa- legislature has power to legislate standards of review if clear and explicit language -French & English statutes not similar Bilingual stat interp-both versions equally authoritative: must adopt interpretation that supports both. Held: confers discretion to allow relief and exercised in accordance with Dunsmuir

OBITER -courts will not interpret grounds of review as standards of review unless leg language is unambiguous -apply Dunsmuir principles to determine appropriate approach BCATA Manz v Sundhur -legislating standard of review does not interfere with court s power of judicial review. Ability to supervise VS. Degree to which they will show deference Patent UnreasonablenessVictoria Times Colonist - a high level of deference CUPE- Patent Unreasonableness at CL -defect apparent on the face -reviewing court not to reweigh considerations -only look at whether there is rational basis for tribunal s decision Statutory Appeals -where no standard of review is provided in statute a right of appeal indicates little or no deference. -but must be balanced against the other factors of judicial review Pezim v BC -statutory appeal and no priv clause -Q of home statute -court found: little deference AGAINST specialized nature of the tribunal BUT tribunal had greater expertise

-held: Securities Commission had greater expertise than courts in this narrow area of stat interpretation. Segmentation Levis v Fraternite -only use multiple standards where there are clear distinctions between questions and not use segmentation to increase court s scruitiny. Disability Council v Via Rail -court should be reluctant to separate out areas as jurisdictional or preliminary question. Lake v Canada Consti decisions reviewed on standard of correctness, however reasonablenss was applied due to expertise of the minister under international obligations. Discretion Recognized if given a choice: May/ in opinion of/ as considers DunsmuirDiscretion Reviewable on a standard of reasonableness (range of acceptable outcomes) BCATA-patent unreasonable if: a) arbitrary/ bad faith b) improper purpose c) predominantly on irrelevant factors d) fails to take statutory requirements into account. Consider: -charter and the values of the charter -norms of international law -guidelines

Unreasonable if: a) arbitrarily or in bad faith b) improper purpose c) based on irrelevant factors d) fails to take statutory requirements Prior to Baker, it was established that discretionary decisions could be reviewed on the basis of abuse such as: 1) Bad Faith 2) Improper Considerations 3) Improper Purposes Suresh So long as minister considered the relevant factors the court will not reweigh the factors. 1- Suresh a threat to national security 2- face substantial risk of torture Chamberlain Standard: Reasonableness Unreasonable because: 1) violated principles of secularism (Act) 2) departed from own regulations as to how decisions are made 3) Applied the wrong criteria Constitutional Issues The Charter S 7 Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice S 1. if there is a violation of the Charter the burden shifts to the gov t to establish the limitation is justified The Oaks Test

-Importance of the objective -Rational connection between the objective and the means -minimal impairment of the right at stake Constitutional Remedies S 52(1) any law contravening the Constitution is of no force and effect Remedies under Charter: S 24(1)- anyone whose rights or freedoms have been infringed may apply to a court of competent jurisdiction for court s remedy. (2) if under s 24(1) a court concludes evidence obtained in a manner that infringed/ denied rights, the evidence shall be excluded, if it would bring administration of justice into disrepute. Constitutional Tribunals NSWCB v Martin Admin tribunals that have explicit or implied Jurisdiction to decide Q s of law can also decide Consti Validity of those laws. Implied Intention -statutory mandate of tribunal -interaction of tribunal with other elements -adjudicative in nature -practical considerations Rebutted if: -express statutory withdrawal -clearly not intended to. Major Limitation Tribunals cannot issue a general rule of invalidity, only can give remedy in regards to the particular case before it.

Paul v BC (Forest Appeals Commission) The presumption can be rebutted if -statutes contain an express withdrawal of authority to consider the charter -Martin analysis applies to aboriginal rights and implies the same would be the case for constitutional arguments about the division of power. -Tribunal may refer it to courts, or delay tribunal to allow for court Section 24 of the Charter Applies only to the charter -if there is any question about the breach of charter can apply to the court who can provide any appropriate remedy. Martin v Conway- insane person Asked for: absolute discharge (NOT) Under s 24 the analysis is the same as under s 52, however can only grant remedies under what powers they have been given. Board had an implied power to decide the question. If have the express or implied power to decide a question of law, then also have the power to decide the constitutional validity of the law S 24(1) Court can give you anything they want Tribunal cannot give anything that tribunal doesn t have power to.

S 24(2) Evidence may be excluded if it was obtained in a manner that contravenes the Charter (illegal search) Only available under subsection (1) Limitation -it only decides the case in front of them and does not set down -all consti issues are reviewable for correctness.

Tribunal as a Party Goodis Factors: -Nature of problem -Tribunal Expertise -Purpose of legislation -Availability of another party to respond. Official in Agency have Standing Watson v Peel Chief of police delegated power but didn t like the decision couldn t complain about his own authority Real Estate Council v Henderson -role was sufficiently distinct in stat framework that they could be considered separate entities. STAY OF PROCEEDINGS Manitoba (AG) v Metro Stores Test -Prima Facie serious question to be tried -Irreparable harm (more than damages) -Balance of convenience (who suffers more) Brotherhood v CP Ltd -court has a residual discretionary power to order interlocutory injunctions even where the court does not otherwise have jurisdiction over the matter, Remedies Prerogative Writes Certiorari-quashing decision (remitted) Prohibition- prevents taking an action

Commencing the Application Standing Personal Interest Standing -original parties before agency -those directly affected -private rights interfered with -sufficient nexus or causal relat Public Interest Standing Attorney General= chief legal advisor Finlay v Canada Welfare recipient, Manitoba wasn t complying with Canada Assistance Plan 1)Personal Interest-private right or -special damage peculiar 2) Public Interest-Serious legal issue -individual has a genuine interest -no other reasonable manner in which issue may be brought before the court.

Mandamus-compel agency to act Habeas Corpus-produce the body Quo Warranto-inquire into authority that justifies public action Legislation Declarations -pronouncement by the court on matters of law, defining the rights and obligations of parties- CUPE Monetary remedies Under s 24(1) Vancouver v Ward In tort- Ward Where may the court refuse relief? -not exhausted other routes of appeal -application is collateral attack on order -application is premature -delayed bringing the application -issue is moot -applicant has committed misconduct -applicant waived rights. Alternative Routes of Appeal. Okwuobi -general rule that judicial review will not be heard where an alternative process is available but has not been utilized Gates -if the alternative remedy is not timely and effective the courts may permit judicial review application Prematurity Air Canada v Lorenz -should not bring application prior to final decision unless exceptional cases

Collateral Attack A decision should not be challenged in separate proceedings if it could have been challenged directly- Wilson Mootness Where resolution has no practical significance Goodis v children s lawyer However may hear the case Delay If applicant has delayed bringing the application the court may decline to grant relief, if PREJUDICE Friends of Oldman River A delay was excused because could show ongoing legal battle. Applicant s Misconduct Homex v Wyoming (village) H used checker-boarding to avoid municipal regulations, this was legal, court declined to quash the bylaw because of Homex s misconduct Waiver Failure to object when applicant becomes aware of defect may be taken as acquiescence

Slacker list: Dunsmuir- core substantive review Martin v Conway- law on consti issues Mavi: PF generally Chamberlain- proper/ improper consideration (VERY IMPORTANT) GoodisKoza- stat review