Assignment One

1. A) Judicial Review and Types of Judicial Review

Bodies or agencies are created through statutes or royal prerogatives to exercise delegated
powers. The individuals who exercise this power are typically members of the executive
branch of government. The rule of law requires that the delegated power be exercised
“properly”. Judicial review acts as a check and balance when it is determined that power has
not been exercised properly.

Judicial review is part of the inherent powers of superior courts to review the exercise of
powers by executive branch officials. There are two types of judicial reviews:

a. Judicial Review for absence of Procedural Fairness: This deals with the procedural
expectations that administrative decisions makers must meet. Proper procedures need
to be followed when administrative decisions affect individual’s rights or interests. In
judicial review, the court examines the fairness of the procedure followed rather than
the merits of the decision itself.

b. Judicial Review on the basis of Substantive constraints : This deals with substantive errors
in deciding the merits of a matter that administrative decision makers must avoid. In this
case, the court evaluates decisions for substantive errors using either the standard of
correctness or reasonableness, with reasonableness being the general standard.

The main aim of judicial review is to build a system that governs the exercise of delegated
power by administrative agencies, bodies, boards and tribunals. It shall ensure that
government actions are authorised by the legislature and that laws are implemented and
administered fairly and reasonably, thereby maintaining public confidence in the
governmental authority.

In judicial review, the courts have the power to review administrative decisions through their
original jurisdictions or appeals by aggrieved individuals. Successful reviews may result in
remedies such as certiorari, prohibition, mandamus or habeas corpus.

B) Sources of procedural obligation

1. Enabling Statues
Administrative tribunals are created through enabling statutes, which may stipulate
procedural obligations for decision makers. In Singh v. Canada, the enabling statute was
the Immigration Act, 1976. In Baker v. Canada, the Immigration Act, 1985 was the
enabling statute.

2. Subordinate (Delegated) Legislation

The legislatures may delegate the power to enact regulations or rules establishing
procedural requirements to administrative agencies. For example, Manitoba’s Labour
Relations Act grants the Labour Relations Board the power to enact rules of procedure
for administrative hearings.
 3. Policies and Guidelines
Public authorities often issue guidelines and policies regarding procedural aspects of
decision making, which are not legally binding. These “soft laws” provide additional
guidance but do not establish enforceable requirements. For example, the Immigration
and Refugee Protection Act empowers the Chairperson of the Immigration and Refugee
Board to make rules respecting the activities, practice and procedure of the Board’s
divisions.

4. General Procedural Statutes

Some Canadian provinces have enacted statutes that set out standards and procedures
for decision making processes. These statutes cover various aspects, such as the right to
give reasons, the right to make representations and the right to provide oral electronic
evidence. The examples are:
- Ontario’s Statutory Powers Protection Act (SPPA)
- Alberta’s Administrative Procedures and Jurisdiction Act (APJA)
- Quebec’s And Act Respecting Administrative Justice (AAJ)
- BC’s Administrative Tribunals Act (ATA)

5. Common Law
If procedural fairness requirements are not stipulated by an enabling statute, delegated
legislation or general procedural statute, the common law principles of natural justice
apply. Common law principles include:
- Right for an affected party to be heard (Audi Alteram Partem)
- Requirement of an impartial and independent hearing (Nemo Judex in Sua Causa)

Common law rules of natural justice fill the gap when other sources do not provide
adequate procedural protection.

6. Charter of Rights and Freedoms

Section 7 of the Canadian Charter of Rights and Freedoms contains guidelines for
procedural fairness when life, liberty and security of the person are at stake. These rights
cannot be deprived except in accordance with the principles of fundamental justice.

7. Bill of Rights
Section 1(a) and Section 2(e) of the Canadian Bill of Rights also prescribe the application
of the rule of fundamental justice when the protection of life, liberty, security of the
person and property are at stake. The Bill of Rights applies to federal government bodies
only.

2. Degree of fairness concerning departmental recommendations

Issue

Whether Abraham is entitled to a degree of fairness in so far as the departmental

recommendations are concerned?

Rule

Knight v. Indian Head School Division : Knight Three Prong Test

Knight Three Prong Test consists of three principles that must be considered to determine if
the duty of fairness applies:

a. Nature of the decision

If the decision is of a more final nature, it is more likely to trigger the duty of fairness.

In Re Abel and Advisory Review Board, disclosure of reports is required because the
recommendation of the Advisory Review Board has a significant impact on the
individual’s rights and the decision was of a final nature.

b. The relationship between the administrative body and the individual

The nature of the relationship, such as employer/employee, is relevant in determining
the duty of fairness.

In Re Webb and Ontario Housing Corporation, it was held that the duty of fairness
requires opportunity to respond to complaints when the decision affected the
individual’s subsidised housing.

In Hutfield v. Board of Fort Saskatchewan General Hospital District No. 98, the duty of
fairness may be engaged if the non-decision significantly affects the interest of the
applicant. The decision maker must adhere to procedural standards that affect the rights
or interests of a person in a final or near final manner.

c. The effect of the decision on the individual’s rights

If the decision significantly impacts an individual’s rights, interests, property or liberties,
the duty of fairness applies.

Nicholson v. Haldimand-Norfolk (Regional) Police Commissioner (1979): There is a

general duty of fairness. There is no distinction between “judicial”, “quasi-judicial” and
“administrative” functions.

Baker Factors

a. Nature of the decision and the process followed in making it

The closer the decision is to a judicial-making exercise, the more likely procedural
protections closer to trial model will be required. Hence, if the procedure includes
elements like examination and cross-examination of witnesses, representation by
counsels, written decisions, etc., then it is more likely that procedural protection will
apply. But if it‘s merely investigatory in nature, then procedural fairness may not be
required.

b. Nature of the statutory scheme and the terms of the statute pursuant to which the
decision maker operates

The nature of statutory schemes that will require more extensive procedural
protections include (a) where there is no appeal within the statute from the
 administrative decision, or (b) where no further requests can be entertained after
the decision.

c. Importance of the decision to the affected party

Decisions affecting disciplinary suspension that have adverse impact on professional

careers would require more procedural fairness rules.

d. Any legitimate expectations of the person challenging the decision

e. Choices of procedure made by the agency itself

Analysis

The Knight Three Prong Test, as stated above, shall be applied in the instant case to assess
the degree of fairness.

a. Nature of the decision

The facts suggest that, the legislative framework mandated that a preliminary inquiry in the
nature of an information statement recording process be undertaken. This would then be
submitted as a departmental recommendation to the Federal Military Board. The Federal
Military Board would then make the final decision. It is to be noted that, this departmental
recommendation is only preliminary and non-binding in nature. It does not bind the Federal
Military Board to conclusively determine the issue based on the recommendations made. It
merely has persuasive value.

Since the recommendation is not final in nature, the degree of procedural fairness triggered
is less.
b. Relationship between the administrative body and the individual

Abraham was a military officer who shared an employer-employee relationship with the
Federal Military Board. The Federal Military Board initiated disciplinary actions against
Abraham on the ground of disobedience of superior orders.

c. Effect of the decision on individual’s rights

The facts suggest that, the departmental recommendation made an adverse finding against
Abraham. It suggested that, Abraham be suspended from duty, which altered the rights of
Abraham. The mandate required an officer to present his/her case and have access to
departmental recommendation that was ultimately issue. The ultimate decision taken based
on the departmental recommendation gave it the nature of a final decision as opposed to a
preliminary finding. The degree of procedural fairness required is high in this case since
Abraham was neither afforded an opportunity to present his case before the departmental
recommendations were made, nor were the ultimate departmental recommendations were
made known to him.
 The Baker factors, as listed above, shall be applied in the instant case to assess the degree of
fairness:

a. Nature of the decision and the process followed in making it

Firstly, the instant case, did not provide adequate disclosure to Abraham by not apprising
him of the ultimate departmental recommendations with adverse findings. Secondly,
Abraham was not afforded an opportunity to present his case, after the final decision
was made by the Federal Military Board. This suggests that, it is more likely that
procedural protection will apply. The departmental recommendations were not merely
investigatory in nature. They had an element of finality.

b. Nature of the statutory scheme and the terms of the statute pursuant to which the
decision maker operates

The mandate stated that, the officer is entitled to present his/her case and have access
to the departmental recommendation that was ultimately issued. In the absence of
implementing this statutory procedure, Abraham was denied opportunity to present his
case before departmental recommendation.

c. Importance of the decision to the affected party

The adverse findings of the departmental recommendation which recommended that

Abraham be suspended from duty had the potential to significantly alter Abraham’s
professional career.

d. Any legitimate expectations of the person challenging the decision

Abraham had legitimate expectation that he will be afforded an opportunity to present

his case before the departmental recommendation was made and the contents of the
ultimate departmental recommendations be made known to him.

e. Choices of procedure made by the agency itself

The Federal Military Board did not adhere to disclosure requirements that were
mandated.

Conclusion

Based on the above analysis, I conclude that, Abraham is entitled to high degree of
procedural fairness since the decision has a high impact on his professional career.

3. Legitimate Expectation

Issue

Whether Tom can cite the doctrine of legitimate expectation?

Rule

This doctrine is a part of duty of fairness and applies when a promise or representation is
made by a delegate to an individual. This creates a legitimate expectation that a certain
procedure will be followed. This doctrine only applies to procedural fairness and does not
grant substantive rights outside the procedural domain.

Old St. Boniface Residents Association Inc. v. Winnipeg (City) (1990) : The court ruled that,
legitimate expectation is based on natural justice and procedural fairness. It provides the
impacted parties with the entitlement to present their viewpoints if they were under the
impression that their rights would remain unaffected unless there was a discussion.

To apply the doctrine of legitimate expectations, certain conditions must be met:

1. There must be a clear and unambiguous representation by a government authority or
delegate.
Mount Sinai Hospital Centre v. Quebec (2001) : If representations are clear, unambiguous
and procedural in nature, the government may be held accountable for its promises.
2. The expectations must align with the public authority's statutory role, and the person
making the promise must have the authority to do so.
3. It creates procedural rights, not substantive rights, as substantive outcomes are the
domain of decision makers.
Baker v. Canada: The UN Convention on the Right of the Child does not create a
legitimate expectation for specific decisions on humanitarian and compassionate
grounds.
4. To challenge a decision based on their expectations, it is not required to prove that they
knew about it or that it caused them harm. The focus is on promoting regularity,
predictability and certainty in government dealings.
5. This doctrine does not apply to the legislative process.
Reference re Canada Assistance Plan (1991): It does not create substantive rights. It does
not constrain the government's ability to introduce legislation as it would infringe upon
parliamentary sovereignty.

Analysis

Firstly, the facts suggest that the presence during the investigation and representation by
counsel during examinations evidence clear, unambiguous and procedural representations.
The Tax Department, which investigates the financial affairs of the tax payers is required to
be held accountable to be bound by such past representations.
Secondly, Daniel after joining the Tax Department was authorised under the Income Tax Act
to investigate the financial affairs of taxpayers, including Tom. Daniel had the statutory
authority to permit Tom’s presence during such examinations. The facts do not point towards
any promises made by Daniel.
Thirdly, the presence of Tom during examinations and his right to be represented by counsel
are procedural rights and do not create substantive rights.
Fourthly, Tom made Daniel aware about the procedural expectation to Daniel.
Fifthly, since there is no legislative process, this situation does not fall under one of the
exemptions from the application of this doctrine.
Conclusion

Based on the analysis above, I conclude that, the doctrine of legitimate expectation does not
apply in the instant case, since no promise has been made by Daniel. Thus, Daniel was well
within his rights to reject such a request of Tom. The request for injunction sought by Tom
should be denied.